Wednesday, 3 June 2015

The 56-day Rule - Some further thoughts


NOTE: For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

Since I wrote my previous posts on this topic on 9 and 13 February and 11 March, I have taken the opportunity to look in more detail at the requirement as to the timing of the LPA’s notification of their determination of a prior approval application.

On the basis of the practical examples that I quoted in those posts, the consensus would appear to be that notification of the LPA’s determination of the prior application must not only be given by the authority within the 56-day period, but must also be received by the applicant within that period, and a proper construction of paragraph W(11), read as a whole, would seem to support this.

In paragraph W(11) of Part 3, sub-paragraph (a) refers to “the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required” and sub-paragraph (b) refers to “the receipt by the applicant from the local planning authority of a written notice giving their prior approval”, although sub-paragraph (c) merely refers to “the expiry of 56 days following the date on which the application was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”.

Sub-paragraph (c) relates to both of these two alternative notifications under sub-paragraph (a) or (b), and (by implication) to the third possibility that the notice served by the authority may be to inform the applicant that prior approval is refused. It therefore seems clear from the context that sub-paragraph (c) must also be taken to refer to the receipt by the applicant of such a notice, so sub-paragraph (c) should in practice be read as - “the expiry of 56 days following the date on which the application was received by the local planning authority without the receipt by the applicant from the local planning authority of a written notice as to whether prior approval is given or refused”.

Whilst on this topic, I am grateful to a correspondent for drawing to my attention the position regarding an appeal under section 78 against non-determination of a prior approval application, where the failure of the LPA to determine the application or to notify the applicant of that determination within the 56-day period is the sole determining factor in the appeal.

In such a case, the Planning Inspectorate seems recently to have taken the view that no appeal is required (or can be made) in such a case. I have been shown a letter from the Planning Inspectorate, written in May of this year in response to an appeal which had been made against non-determination of a prior approval application in Gloucestershire, in which they stated that, because it would appear that the LPA did not determine the application within the required 56 day period, the applicant can proceed with the development in these circumstances, and no right of appeal applies. The LPA had the power to refuse the application on the basis that the development was not appropriate for the prior approval process but there was no indication in this case that they did so. In the circumstances, the Inspectorate stated that the appeal appeared to be invalid and no further action would be taken on it. A copy of this letter was sent to the LPA who were asked to note its contents.

This would appear to dispose of the need to appeal against non-determination. If the applicant is correct in their assertion that they have the right to carry out the permitted development, then the expiry of the 56-day period would in principle enable the development to proceed, but if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, or if there is a dispute with the LPA as to the qualification of the site for change of use under the relevant Class in Part 3 (or where the LPA is otherwise challenging the right to carry out the proposed development), caution may suggest that the correctness of the applicant’s assertion as to the lawfulness of the proposed development should be tested by means of an application under section 192, before going ahead with the development.

It may be helpful to readers who are making an LDC application to be reminded of the judgment in F W Gabbitas v SSE and Newham LBC [1985] JPL 630, where it was held that the applicant's own evidence does not need to be corroborated by "independent" evidence in order to be accepted. If the local planning authority has no evidence of its own, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate "on the balance of probability”. This was helpfully summarised in paragraph 8.15 of Annex 8 to Circular 10/97. The Circular was cancelled in March 2014, but the legal principles that it set out continue to apply.

© MARTIN H GOODALL

29 comments:

passerby said...

Have I got this right (surely not)? So, even if an applicant's prior notification 'application' is invalid, failure on the part of the Local Authority to advise them of that within the required timeframe, effectively validates the thing being sought?

ADAM HARDY said...

Hi Martin

Retrospect prior approval !

Slightly off topic but your professional advise would be much appreciated.

Scenario, Prior approval required for Permitted Development .Development carried out without any Prior Approval notice submitted.

Would the development in question then require a full planning application, a retrospect prior approval or no further action ?

Thanking you in advance Martin

Adam

Martin H Goodall LARTPI said...

In answer to ‘passerby’ - NO! Absolutely not. If the development is not PD within Part 3 (because it does not qualify for some reason), then failure of the LPA to deal with the prior approval application within 56 days cannot alter the fact that it is not, and cannot be, PD. To save any arguments, the LPA ought perhaps to refuse the prior approval application within the 56 days, but if they do not do so, this cannot ‘valdiate’ what would in any event be an unlawful development.

Martin H Goodall LARTPI said...

In answer to Adam Hardy, it is not possible to make a retrospective prior approval application. If the development is started without a prior approval application having been made, it cannot be permitted development, and can only be regularised by making a retrospective application for full planning permission (which may or may not be granted).

Anonymous said...

I'd be grateful for your (and those of other planoraks) whether this discussion is affected at all by the 2015 Order Article 7? It refers to the decision being made within 8 weeks (unless Schedule 2 specifies something different) and (in (c)) allows extensions of time when agreed by applicant and LPA. This last addition wasn't in the 1995 GPDO - although it may have been added later - and is potentially useful when there may be a need to add to information submitted as part of the prior approval application, such as a Flood Risk Assessment. However, does the 'or' at the end of subparagraph 7(b) mean that the time limits in Part W apply and no extension is allowed?
Thanks for your help.

The relevant section is:
Prior approval applications: time periods for decision
7. Where, in relation to development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval, an application has been made to a local planning authority for such approval or a determination as to whether such approval is required, the decision in relation to the application must be made by the authority—

(a)within the period specified in the relevant provision of Schedule 2, .
(b)where no period is specified, within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or .
(c)within such longer period as may be agreed by the applicant and the authority in writing."

Evan Owen - Snowdonia said...

Very interesting Martin. I have a case where the LPA simply responded to the prior approval application by email to say it wasn't "Offices" then stated later on in an officer's report that "the lawful is offices". It has gone to appeal as you suggested.

Archie said...

Martin - in reference to your reply to Passerby above it is common practice in this neck of the woods for LPAs to validate an application and concurrently confirm that if the applicant hasn't been given notice they may proceed after 56 days.

So whilst a deceitful or fraudulent application remains unlawful (just as it does for a planning approval) shouldn't an application in good faith with the "applicant's own evidence", etc on the balance of probabilities become lawful after 56 days.

Or in other words, the PD regime has or will become as subjective as all planning (especially delegated approvals) and any LPA that is late in submitting a notice can claim that the application isn't lawful and prevent or inhibit conversion.

In so doing they leave the applicant no right to appeal as the 56 day rule has elapsed and the PI won't hear.

So they submit a section 192 back to the LPA who've already claimed its unlawful....

Keep up the good fight!

Richard W said...

The NPPG does of course include the Gabbitas principle at

http://planningguidance.planningportal.gov.uk/blog/guidance/lawful-development-certificates/application-and-determination-procedure/#paragraph_006

Given that more and more planning dates are now based on 'receipt' of documents (either receipt by the applicant in your example or receipt by the LPA in other contexts - including the new deemed discharge of conditions notices) and the difficulty of positively proving receipt by another party perhaps CLG could help by confirming how far we each have to go to be confident of 'receipt'.

Richard W said...

Just to add re passerby's question,I would not recommend LPAs refuse invalid notices but rather they should issue a clear letter advising the applicant that the notification is not valid (and the reason why) and a clear statement that the development cannot proceed as PD. An LPA can no more 'refuse' an invalid application than PINs can accept an appeal against an invalid notice or against a valid time elapsed notice in my opinion.

Anonymous said...

Hi Martin,

We have just recently applied to our LPA for the conversion a Barn to a dwelling with use of the Prior notification. It took our LPA 5 weeks to validate the application, because of a few clarifications over a signature that we completed on line and clarification to one of the drawings supplied , are we correct in saying that the 56 day rule comes into force the day after our application was delivered and receipted by the LPA , or when they see fit to validate the application.

Martin H Goodall LARTPI said...

In answer to Archie (4 June), the lawfulness of the development depends on the objective facts – i.e. whether the development does come within the criteria of the relevant Class in Part 3, and does comply with all the restrictions, limitations and conditions. An application for an LDC under section 192 will only be necessary where this is in doubt, or is in dispute. The rule in Gabbitas will apply to the applicant’s evidence, but if this is false in a material particular or if any material information was withheld, the LDC may be revoked, and the development would be unlawful that event. (See section 193(7).)

Martin H Goodall LARTPI said...

With regard to the anonymous comment on 4 June about Article 7, this point is now discussed in the subsequent post published today.

Anonymous said...

Whilst LPAs are not technically supposed to "validate" prior approval applications is it reasonable for an LPA to not validate such application until a CIL pro forma is submitted even if CIL is obviously exempt because for example under class Q new build is not permitted and it must have been in a lawful agricultural use. My LPA are using this CIL tactic to delay the start date of prior approval applications. Surely this is wrong?

Martin H Goodall LARTPI said...

In answer to my anonymous enquirer of 30 June (sorry for the belated response) – Yes, this is wrong. A CIL pro forma is not a required document to accompany the prior approval application. In appropriate cases it may well be required as additional information, and could then be requested by the LPA if not previously provided, but its absence can’t stop the 56-day rule running from the day after the prior approval application was received by the LPA, irrespective of whether or not (or when) they ‘validated’ it. Nor can a request for further information (such as a CIL pro forma) suspend the 56-day rule when such a request is made.

Anonymous said...

Hi Martin, in response to your comment on 8th June (18:58), I’m not entirely sure I agree (but please correct me if I’m wrong!). You state that “the lawfulness of the development depends on the objective facts” however there is actually an element of subjective judgement needed in assessing lawfulness in terms of whether the development meets the restrictions for Class Q(b) under Q.1 (i) i.e. are the building operations reasonably necessary for the building to function as a dwelling house and is any partial demolition reasonably necessary to carry out the building operations. It is not therefore black and white and whilst all other criteria may be met and a developer may be of the opinion that the proposals do meet the reasonable test, any purchaser, lender or professional adviser is likely to want certainty on this issue and therefore an application for an LDC will be necessary in pretty much all cases and in these examples:

i) Where a developer wishes to establish that the development is permitted development prior to submitting a Prior Approval (PA) application
ii) Where a PA application has been successful (i.e. prior approval not required or approved) and which implies that the development is permitted or explicitly states in the opinion of the LPA that it is permitted because legally a PA decision does not provide any formal assurance that the development is lawful and cannot be relied upon in the same way as a LDC. A PA decision is entire separate from a LDC.
iii) No PA decision after 56 days as we know does not imply that the development is lawful it just means that the PA process has been completed so again an LDC is the only way to get legal certainty
iv) Where a PA application has been refused based on not complying with the criteria/restrictions under the GDPO and the applicants dispute the reasons – i.e. this could be an alternative instead of appealing the PA refusal which may in itself lead to an appeal of the LDC decision.

Because Class Q is not a clear cut tick box and effectively a planning application lite then in theory all applicants should really be looking to secure a LDC. The market will eventually determine this i.e. banks and conveyancers will start to realise they need this certainty and start insisting on it.

Martin H Goodall LARTPI said...

In answer to the latest (anonymous) comment, I would not wish to suggest that judgments solely on the law and facts of any matter are ever ‘black-and-white’, but I would maintain that they must be objective; they are not a matter for the exercise of discretion and must therefore be made in accordance with the law and an objective and unbiased view of the facts.

Where the LPA disputes the ‘convertibility’ of a barn or other building, and refuses the prior approval application on that ground, this can be resolved by an appeal under section 78. Where no dispute has arisen on his issue, the developer should in most cases be safe to go ahead with the conversion. It is only if the developer knows or believes they are going out on a limb with regard to the works involved in the conversion (notwithstanding prior approval, or the operation of the 56-day rule) that an LDC application might be advisable.

With regard to my anonymous correspondent’s first example, a developer should be able to determine (with professional help, if necessary) that the development is permitted development without needing to make an LDC application. If there is a genuine doubt about this, it is likely to be picked up by the LPA in dealing with the prior approval application, and if this leads to a refusal, the matter can be resolved by a section 78 appeal.

With regard to the second example, some LPAs do make this point when issuing a prior approval, but in my view this does not make an LDC application necessary. If the extent of the conversion works is not in dispute, then there is no reason to go for an LDC unless (as I suggested above) the developer knows something about the building or the proposed works of which the LPA is unaware.

In the third example (operation of the 56-day rule) there could be a case for an LDC application, but only if the developer and his advisers have any doubts about the qualification of the development under Part 3 or about the extent of the works proposed. It is true that the 56-day rule cannot make a proposed development lawful if for any reason it fails to comply with the terms of the relevant Class in Part 3.

Finally where prior approval has been refused because the LPA contends that it does not comply with the criteria or restrictions under the GDPO, a section 78 appeal is the appropriate procedure for resolving this, and if the appeal is allowed there will be no need to make an LDC application.

For these reasons, I do not agree (either in theory or in practice) that all applicants should really be looking to secure an LDC. I see no reason why mortgage lenders and conveyancers should try to insist on an LDC, and in most cases, it would not be practicable to obtain an LDC within an acceptable timescale, when a property transaction is in train.

Anonymous said...

Hi Martin, I am most grateful for your comprehensive response to my comments of 5th August, I think perhaps I am being over cautious/pessimistic. However the main driver for my concerns is the different way LPAs are interpreting “reasonably necessary”. For example some LPA are not accepting that any steel frame barns are permitted under Class Q in the whole of their authority area because they feel any works to such buildings go beyond what is reasonably necessary. Whereas some LPAs are supportive of steel frame barns in general where all other criteria are met.

A key example of different interpretations of Class Q can be seen with my LPA as prior to the March guidance they accepted that some steel frames barns met the reasonably necessity test and many successfully went through the PA process. However since the March 2015 guidance my LPA is now reinterpreting the GDPO (despite there being no material change in the law) such that they have refused all steel frame barn PA applications purely on grounds of reasonable necessity of the works and it is fairly obviously that if they were asked to reassess applications that had been successful prior to March 2015 then it is highly likely that they would now say many of these are not permitted development because under their current interpretation they fail on the reasonable necessity test.

I’m sure you can appreciate my pessimism that if lenders were aware of the disparity in interpretation of Class Q then at some point they may start asking for LDCs because it is the only piece of paper they can actually rely upon as opposed to the opinion of the mortgagor (or their advisors) or the LPA in a PA decision notice.

Martin H Goodall LARTPI said...

The only way of resolving this issue will be by way of appeals under section 78 against refusals of prior approval, where steel frames are an issue, in terms of the structural convertibility of the building. Each case is likely to be fact-specific, and so it may not be possible to predict how these cases might be determined. What is clear, however, is that the revised ministerial practice guidance of March 2015, which specifically addresses this issue, will clearly have to be taken into account as a material consideration.

Martin H Goodall LARTPI said...

The anonymous comment of 8 June somehow got dumped in the “Spam” bin, from which I have just rescued it.

The answer to the question posed is that Day 1 of the 56-day period is the day after the completed application, and fee, is received by the LPA. A delay on the part of the LPA in ‘validating’ or registering the prior approval application does not delay the start of the 56-day period. However, if the application was not in fact complete (e.g. if it was not accompanied by a plan indicating the site and showing the proposed development), then time does not start to run until any missing elements of the application are received by the LPA. There is, however, a distinction to be drawn between information required by the rules to be submitted at the outset, and additional information that is then requested by the LPA. The latter cannot delay the start of the 56-day period, nor can this suspend the operation of the 56-day period, unless both parties agree to an extension of time.

In the case posed by my correspondent on 8 June, it would depend on the precise nature of the query by the LPA as to the details supplied (including the plan), as to whether this did delay the start of the 56-day period until this was sorted out, or not.

I LOVE my council said...

We have an interesting if annoying situation where our Prior Approval application was received by the Council Planners on 13 July (as confirmed on their planning portal). On 6th August they notified our agents that the application didn't comply with the 'National Validation Checklist' and asked for confirmation that we had the permission of our architects to use the site plans we had submitted and for confirmation of the OS licence. Our agents were surprised by this but obtained the necessary confirmation and the application was then validated on 12 August.

However the council effectively restarted the clock to run 56 days from the validation date (i.e. 12 August) and issued their decision – incidentally a refusal against which we plan to appeal – on 6 October. From reading this great website it seems that if they didn't actually refuse the validation, they should have continued to work from the 13 July start date and so they might be out of time?

Our agent believes that the copyright issue was in any case 'not a valid consideration under part Q of the GPDO' and so the council should have either refused to validate, or if not, work to the 56 day rule starting from the receipt date of 13 July. This would have been 7th September – virtually a month earlier than their actual decision date.

We've asked them to look into this specific issue but after 4 weeks we've yet to have their response. Your informed comments would be VERY welcome. PS Thanks for putting the time into assembling such a great online resource. I wish I'd found it sooner!

Martin H Goodall LARTPI said...

Whilst I can’t give free legal advice in response to queries and comments published here, it does seem to me that the 56-day period actually started on the day after the prior approval application was received by the Council (i.e. 14 July), so their purported refusal of prior approval on 6 October was far too late.

The council’s reference to the ‘National Validation Checklist’ was completely irrelevant, and it was none of their business whether the submitted plans had copyright clearance or not. This point should certainly form part of the appeal. The judicial authority to quote is the Court of Appeal decision in Murrell cited in one of my blog posts on this topic.

I LOVE my council said...

Martin - thanks very much for the reply and your encouraging positive opinion on this.

However I've just seen an appeal decision reported on 16 November at http://www.planningresource.co.uk/article/1372948/prior-approval-not-granted-56-day-notification-expired
where the Inspector ruled that the council's failure to comply with the 56-day rule could effectively be ignored if "development did not accord with the limitations set out in Class MB.1 and the conditions in paragraph MB.2, this did not mean that it was permitted". One of the reasons was that the scheme exceeded the 450 sq m limit, but the other was the council's evidence that the site was not solely in agricultural use at March 2013.

In our case the application for Prior Approval was required and refused (when we did eventually get the decision), but does that mean that a council's failure to meet the 56 day requirement is not the 'magic bullet' that I and I think many others have thought if the application has actually been refused?

Incidentally we're in a very rural county and our council now seems to have adopted a policy of refusing anything they think they can – particularly on the agricultural use qualification – and then forcing an appeal. S

Again thanks for such a great resource (and an early Happy Christmas!)

Anonymous said...

I put in an application for conversion of a redundant barn to residential just before christmas, but have heard nothing yet. I have just read on the councils site that I should have put in 4 copies of the maps showing the site, but only included 2. Can you tell me whether the 56 day rule will start from the date I handed in the application or when I send in the extra 2 copies of the maps.

Love reading all your updates. They are really useful.

Martin H Goodall LARTPI said...

Only one copy of the application plan is required to accompany a prior approval application (irrespective of what the council’s website says). The 56-period begins to run from the day after the application was received by the council. If the application was complete at that time, including one copy of the application plan and the correct fees, then that is the date from which the 56-day period is calculated. Delivering extra plans to the council later may have been helpful, but it does not alter the date on which the 56-day period began.

Martin H Goodall LARTPI said...

I somehow missed the comment from “I LOVE my council” sent in on 11 December.

I have lost count of the number of times I have stressed in this blog that failure by a Council to determine a prior approval application (and notify the applicant of their decision) within the 56-day period does not automatically entitle the applicant to proceed with the development, unless (a) the proposed development is fully compliant with all the qualifying criteria, (b) the proposed development is not prohibited by any of the exceptions in the relevant Class (such as being a Listed Building, etc.), (c) the proposed development does not, either by itself or cumulatively, exceed the size limits that apply to that class of development, or any other limitations and (c) the prior approval application complied fully with the requirements set out in the GPDO.

In the case mentioned by “I LOVE my council”, the 450 sq m floorspace limit was exceeded, so the proposed development cannot be Permitted Development in any event. It seems that the the building also failed the agricultural use qualification.

If anyone had thought that the 56-day rule was a “magic bullet” that somehow overcomes such deficiencies either in the development itself or in the prior approval application, they are sadly mistaken. Anyone reading my book “A Practical Guide to Permitted Changes of Use” would be left in absolutely no doubt on this point.

Phil said...

Hi Martin, further to your last post if the LPA don't reply within the 56 days this doesn't entitle you to go ahead unless it complies to the regulation who actually permits it meets all Critaria needed for the PD rights? Doesn't this give the council a second chance to refuse the development so the 56 day rule isn't really worth the paper it's written on?

Martin H Goodall LARTPI said...

I fear that Phil (15 April) has still not understood the rules. Maybe he should buy my book (“A Practical Guide to Permitted Changes of Use”), where I have spelt this out very clearly, both in paragraph 15.0 and at the end of paragraph 15.6 in Chapter 15.

The operation of the 56-day rule is subject to the proposed development actually qualifying under the criteria that apply to the Class of permitted development in question, and to the submission of a valid prior approval application (including the correct application fee). Unless these two pre-conditions are met, the 56-day rule will simply not come into operation.

I don’t see anything the least bit unreasonable about this.

Benzie said...

Hello,

In anticipation of receiving your book I have question.

Does the 56 days start when the form, fee and location plan are received OR when an additional plan was provided 5 days later. It's a A1 to D2 application with no work to the building other than 'a lick of paint'. LPA were aware no changes were proposed and still required an internal plan and delayed the start by 5 days until received.

We're looking to avoid having to comply with imprecise 'conditions' issued after when we consider the valid application submitted (ie form, fee and location plan).

Many thanks.

Martin H Goodall LARTPI said...

The answer to Benzie’s question is that it depends whether or not the documentation originally submitted to the LPA met the requirements of paragraph W(2). This requires that the prior approval application must be accompanied by a plan indicating the site and showing the proposed development. The details are discussed in paragraph 13.5 of Chapter 13 of my book, on page 117.

I have suggested in the book that a site plan alone might suffice in certain cases, including conversions under Class J. An LPA is then entitled to ask for further information, but if the documentation originally submitted satisfied the requirements of paragraph W(2), then the 56-day period started running the day after the completed application and fee were received by the LPA. The request for an internal plan would not therefore appear to have delayed the start of the 56-day period, nor did it stop the clock until that further information was supplied.

I should make it clear that it is only because no operational development is permitted under Class J, so that the permitted development consists solely of a change of use, that a site plan alone should suffice for the purposes of paragraph W(2) in this case. (The purely internal works required to bring about the change of use are not in themselves development - see section 55(2)(a) of the 1990 Act - and so do not form any part of the matters requiring prior approval under Class J.)