Legal challenges to planning decisions after Champion

I reported on the Supreme Court decision in R (Champion) v. North Norfolk DC [2015] UKSC 52 on Friday, 7 August 2015 (Lack of EIA not fatal to planning permission). As the title of that piece indicated, I was concentrating in that article on the substantive issue that was before the Court, namely the legal effect of a failure to obtain a screening opinion in a case where it had been a legal requirement to do so. However, the decision clearly has wider implications for judicial review generally.

I am not a regular reader of Solicitors Journal but I spotted an interesting article by Robert McCracken QC in this week’s issue which discusses the wider implications of Champion. He identifies an inherent tension between two alternative judicial approaches to the issue of granting relief when the Court accepts that a legal error on the part of a decision maker has been shown to have occurred. It has long been the practice of the courts in this country to uphold the principle that the Court has a discretion as to whether or not to grant relief in such cases, and Champion is a clear demonstration of this approach.

Whether or not relief should be granted in a particular case is never an arbitrary decision, and certain broad principles have become well established. I don’t propose to rehearse all of these here, but some of the more important considerations are whether there was an alternative means available to the claimant to secure a review of the decision (for example a statutory appeal process), whether the claimant has been substantially prejudiced by the decision and whether, if the decision were to be quashed, there is a reasonable chance that a different decision would be reached upon the matter being redetermined. The second of these points appears to have been given particular weight in Champion (i.e. lack of substantial prejudice). [See my earlier blog post, mentioned above.]

In his article, McCracken points out that the Supreme Court (per Lord Carnwath) appears to be saying in Champion that, not only must there have been substantial prejudice, but the claimant must also show that the decision would have been different were it not for the legal error. I have already drawn attention in my earlier article to Lord Carnwath’s suggestion that a court considering an application for permission to bring judicial review proceedings should take into account the likelihood of relief being granted, even if a legal error were to be clearly established. I observed that, if this suggestion is followed, permission to bring such cases in future may be refused at the outset if the view is taken that, upon a full hearing of the case, relief is unlikely to be granted. This would seem to me to amount to a ‘pre-trial’ of the substantive issues, which would effectively undermine the purpose of the permission stage, and could lead to longer permission hearings, which were originally intended solely as a filter to knock-out unarguable cases.

The main thrust of McCracken’s argument, however, is that Lord Carnwath’s suggestion may not comply with European law, in light of the decision of the European Court of Justice in Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12) [2014] PTSR 311, which suggests that it is not for the claimant to be required to show that the decision would have been different in the absence of legal error. However Altrip was specifically considered by Lord Carnwath in his judgement in Champion, and it is difficult in light of his conclusions to see how it can now be argued that the Supreme Court’s decision is incompatible with Altrip. I haven’t got time to go into this here in any more detail, but the judgment in Champion seems to me to be very much in line with previous decisions on similar matters in our domestic courts, (for example judgments such as R (Hart DC) v. SSCLG [2008] EWHC 1204 (Admin), and the Court of Appeal’s decisions in Gillespie v Secretary of State for Transport Local Government and the Regions & Ors [2003] Env LR 30 ([2003] EWCA Civ 400) and in R (Catt) v Brighton and Hove City Council & Anor [2007] EWCA Civ 298, in light of Waddenzee judgment).

The general thrust of Lord Carnwath’s judgment in Champion therefore appears to me to be perfectly valid, namely that in the absence of substantial prejudice to the claimant, the Court has discretion to withhold relief from a ‘successful’ claimant for JR. The fact that the error of law under challenge involved a technical breach of a European directive does not alter the position, for the reasons that were clearly stated by Lord Carnwath.

On another point, following the well known decision of the House of Lords in R v. Hammersmith & Fulham LBC (ex p Burkett) [2002] UKHL 23, it has been a rule that the challengeable event in the case of a decision to grant planning permission is the actual issue of the planning permission itself, rather than the decision (taken quite a lot earlier in some cases) that planning permission should be granted. This is relevant for the purpose of calculating the 6-week time limit for bringing forward an application for JR. It had previously escaped my notice that Lord Carnwath suggested at the end of his judgment in Champion that there might be an earlier ‘challengeable’ event (in this case the absence of a screening opinion for the purposes of EIA) in respect of which time should run for the purposes of JR. He simply reserved the Court’s position as to whether failure to challenge that earlier error in a timely manner might (contrary to Burkett) bar a challenge to a subsequent grant of planning permission on the same grounds.

Finally, McCracken reminds us in his article of section 31(2A) of the Senior Courts Act 1981 (inserted by the Criminal Justice and Courts Act 2015), which prevents the High Court from granting relief or costs on a claim for JR if the Court takes the view that it is “highly unlikely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. However, there is an exception where the Court determines that there are “reasons of exceptional public interest”. This new provision effectively puts into legislative form the principle that Lord Carnwath was expressing in his judgment in Champion.

© MARTIN H GOODALL

Cities and Local Government Devolution Act 2016

The Cities and Local Government Devolution Bill received royal assent on 28 January. The power to make statutory instruments for the purposes of the Act came into effect immediately. The Secretary of State may also make regulations (by statutory instrument) containing saving, transitory or transitional provisions in connection with the coming into force of any provision of the Act. Subject to this, the other provisions of the Act come into force at the end of the period of two months (i.e. on 28 March).

The Act is concerned mainly with revised local government structures, leading (the government hopes) to more elected mayors, as well as some combined authorities (primarily in city regions), and does not contain any specific provisions relating to town and country planning as such, and does not amend existing planning legislation. Its practical effect on the exercise of planning powers will therefore be confined to the practical consequences of any restructuring of local government under the terms of the Act in the areas affected.

Section 23 gives revised powers to National Park Authorities.

© MARTIN H GOODALL

Amalgamating two or more dwellings (2)

[UPDATE 28.6.16: The appeal decision summarised below has been subject to a challenge in the High Court, which was heard a couple of weeks ago. My sources tell me that an oral indication of the judgment was then given, but that this was embargoed to await the handing down of the formal written judgment in due course. When his becmes available, I will return to this topic in a further post.]

Those of you who follow the comments on various posts in this blog may have seen that Andy Rogers contributed a comment on my previous piece about the amalgamation of dwellings to form a single enlarged dwelling, in which he drew attention to another appeal decision in London last October that led to the opposite conclusion to that reached in the appeal on which I reported in my last article.

For reasons that I shall explain, I do not see any inconsistency between these two appeal decisions. I made it clear in my first article that the amalgamation of two dwellings (or in some cases, perhaps, more than two) will not automatically be a material change of use. A decision on this issue must necessarily depend on the facts of each case and on the relevant policy considerations that apply in that situation. I appreciate that people may be uncomfortable (as I am myself) with the proposition that what should in principle be an objective judgement as to the lawfulness of a change of use should be dependent in any way on the consideration of planning policies but, in light of the Richmond judgment, this would appear to be unavoidable in these cases.

The appeal to which my attention has now been drawn (3028049) was in the Royal Borough of Kensington and Chelsea and involved the amalgamation of two self contained flats to form one self contained residential unit, involving internal alterations. The appeal site was a mid-terraced property that was originally two houses, which had been amalgamated into one dwelling in 1949 and the building was subsequently converted into flats. The proposal involved the amalgamation of the flat at ground floor level and the flat above it on the first floor so as to create a single residential unit.

The main issue was whether the amalgamation of the two flats to create one residential unit would constitute a material change of use. The amalgamation of the two flats would have no material effect on the external appearance of the property and no harm would be caused to the character of the building or to the surrounding area. The Council did not allege that the proposed amalgamation of the two flats would have any effect on the character of the use of land other than through the loss of one residential unit. However, they argued that the “…scale of amalgamation currently under way in this Borough is having a material effect on a matter of public interest, namely it is significantly reducing the number of dwellings in the housing stock”.

The Inspector pointed out that prior to 2000 it was commonly accepted that a reduction in the number of dwelling units on land in residential use did not represent, and could not contribute to, a material change in use of the land. [Although it was not spelt out in the decision letter, this was by reason of the operation of section 55(2)(f) in the 1990 Act.] However, the judgment in the Richmond case, cited in my previous article, modified that view, and the Council sought to rely on this judgment in resisting the grant of an LDC in the present case.

The Inspector drew attention to the reference in the Richmond judgement to Mitchell v SSE [1994] 2 PLR 23, although it has always seemed to me that Mitchell was only of marginal, if any, relevance in the context of the Richmond case, because it dealt with an application for planning permission and was concerned with the material considerations that had to be taken into account under section 70, and so it would not appear to me to have been an appropriate foundation on which to base the judgment in Richmond (although that judgment might perhaps be justified on other grounds that do not depend on Mitchell, for example the passage I quoted in my last article from the judgment of Lord Denning in Wakelin). Nevertheless the Inspector accurately quoted the relevant passage from Richmond: “It is undoubtedly the law that material considerations are not confined to strict questions of amenity or environmental impact and that the need for housing in a particular area is a material consideration...…”. But he pointed out that, in order for it to be a material consideration, the need for housing must be expressed in and supported by local planning policy.

The Inspector observed that the High Court challenge in Richmond was successful because the Inspector in that case had failed to take into account a material consideration, namely the policy factor, which he considered to be “…a question of planning merit than of law”. The Inspector in the present case stated (correctly, in my view) that Richmond did not establish that the policy factor can be the sole determinative factor in an LDC case but one that must be taken into account with all other considerations. But, in the instant case, the Council was wholly relying on the policy factor.

The Inspector nevertheless, went on to consider whether this was a material consideration of any weight. Policy CH 2 ‘Housing Diversity’ of the Council’s Core Strategy (CS) states that the Council will, amongst other things, resist development which results in the net loss of five or more residential units. The proposed amalgamation of the two flats would result in the loss of only one residential unit. So the proposal did not conflict with CS policy CH 2. Saved policy H17 of the Council’s Unitary Development Plan (UDP) states that the loss of existing, small, self-contained flats of one or two habitable rooms will be resisted. Both flats had more than two habitable rooms, so the proposal did not conflict with UDP policy H17.

Policy 3.14 of the London Plan states, amongst other things, that the loss of housing should be resisted unless the housing is replaced at existing or higher densities with at least equivalent floorspace. The London Plan is a strategic plan and places an emphasis on the increase or preservation of residential floorspace rather than the number of housing units. This strategic objective is reflected in the LPA’s Core Strategy, but the relevant policy in this element of a local plan was considered in the passage in the decision letter referred to above. The proposed amalgamation of the two flats would not result in any loss of residential floorspace. The proposal did not therefore conflict with London Plan policy 3.14.

The Council had referred to similar LDC cases in a neighbouring London Borough but planning policy in place (or planning decisions made) in that area could not be imported to support the Council’s case. The scale of amalgamation in Kensington & Chelsea may be having a material effect on the number of dwellings in the housing stock but the proposed amalgamation of the two flats did not conflict with CS policy CH 2, UDP policy H17 or London Plan policy 3.14. The policy factor in this case, given that there was no policy conflict, was a material consideration of no weight. Given that the Council accepted that no harm would be caused to the character of the building or to the surrounding area, the proposed amalgamation of the two flats to create one residential unit would not, as a matter of fact and degree, be a material change of use that would constitute development as defined in Section 55 of the Act. Planning permission was not therefore required for the proposed use. The section 195 appeal thus succeeded, and the Inspector issued the requisite LDC.

I have no doubt whatsoever that this appeal decision is entirely compatible with the judgment in Richmond, and it clearly demonstrates the limits of what might be called “the rule in Richmond”. Re-reading that judgment myself while preparing this article has brought home to me the strictly limited application of that rule. One can see why it was applied in the appeal that I reported in my previous article, and on the facts of that case, that Inspector’s decision was also correct. In fact, my statement that the amalgamation of two dwellings (or in some cases, perhaps, more than two) will not automatically be a material change of use should perhaps be qualified, by saying that it will not be a change of use in the absence of clear policy objections, and that this in turn will depend on the nature and scale of the proposed amalgamation. Clearly the amalgamation of only two residential units is going to be of less significance in policy terms than the amalgamation of a larger number of existing flats or houses, and is therefore rather less likely to be material in planning terms. Ultimately, of course, it is going to be ‘a matter of fact and degree’ in each case, taking all material considerations into account.

© MARTIN H GOODALL

Amalgamating two or more dwellings

Many readers are no doubt aware that section 55(3)(a) of the 1990 Act declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part of it which is so used. However, there is no provision in the 1990 Act itself dealing with the converse, where two or more separate dwellings are combined to form a single dwelling. In principle, it might well be argued that such an amalgamation of planning units is covered by section 55(2)(f), because this refers to buildings which are used for a purpose of any class specified in the Use Classes Order and (as a result of the amalgamation) the building is being used for other purposes within the same class.

However, the judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84 suggested that a change in the character and impact of the use in planning terms might nevertheless amount to a material change of use. This need not be confined simply to the physical or environmental impact of the change, but may also include other factors, such as the loss of a certain type of accommodation or facility that the previous planning unit provided. The Richmond case was concerned with the conversion of a property from seven flats into a single dwellinghouse. It was held that a judgement has to be made as to whether the amalgamation of the planning units has ‘as a matter of fact and degree’ resulted in such a change in the character and impact of the use as to constitute a material change of use in planning terms.

This point had previously been made in the Court of Appeal’s decision in Wakelin v. SSE [1978] JPL 769. That case confirmed that the creation of a new planning unit out of an existing planning unit would not always result in a material change of use, but it may well do so if it is (to use the words of Lord Denning) “not in accordance with good planning policy having regard to the surrounding circumstances”. Wakelin was in fact concerned with the creation of a separate dwelling out of an existing dwelling (now covered by section 55(3)(a)), but it clearly applies (as does Richmond) to other types of use.

Richmond involved the loss of no fewer than six separate residential units, and it was held that the inspector had been wrong to ignore this point in considering the material character and impact of the resulting change of use – in other words, it was not simply the environmental effect of the change that had to be considered but also its effect in relation to planning policies seeking to resist the loss of small residential units. On the other hand, it should be clearly understood that the amalgamation of two planning units, for example by combining two existing dwellings into a single unit, need not automatically be treated as a material change of use amounting to development. This will have to be a matter of objective judgment depending on the particular facts in each case.

It seems that a distinction is to be made between, on the one hand, situations such as those in Wakelin and in Richmond, where a planning unit is either subdivided or amalgamated with another planning unit and, on the other hand, the effect of a change within the planning unit where, both before and after the change, the use or combination of uses falls within one and the same use class. The latter is illustrated by the judgments in Brookes & Burton Ltd v. SSE [1977] 1 WLR 1294 and Eastleigh BC v. FSS [2004] EWHC 1408 (Admin).

I confess that I have always had misgivings about the Richmond judgment, as it does not seem to sit comfortably with section 55(2)(f), but I have explained above how it may be rationalised by arguing that section 55(2)(f) impliedly refers to the use of a single planning unit, whereas in a case such as Richmond one is dealing with two or more pre-existing planning units, so that (the argument would go) section 55(2)(f) does not apply in such a situation.

My reason for discussing the Richmond case now, some 15 years after it was decided, is that a planning inspector in dismissing a recent LDC appeal (under section 195) has relied on Richmond as the basis for the rejection of the lawfulness of the development in question. The appeal had clear similarities with the Richmond case. It involved a six-storey house in Central London that had been divided some time ago into four flats. The amalgamation of the four flats to restore the building to use as a single dwelling would involve the loss of several units of accommodation that the previous planning units provided. The inspector therefore considered, in accordance with Richmond, whether the amalgamation of the planning units would ‘as a matter of fact and degree’ result in such a change in the character and impact of the use as to constitute a material change of use in planning terms.

This necessarily required some consideration of policy issues, including the NPPF and the London Plan, both of which seek significantly to increase the supply of housing in the area. The mix and size of the current residential units in the building was therefore relevant from this point of view, and these were more suited to meeting identified housing needs than a single large dwelling would be. These considerations were sufficient, in light of the judgment in Richmond, to bring about a significant change in the character and impact of the use in planning terms, and thus would constitute a material change of use, and would not therefore be lawful.

© MARTIN H GOODALL

Limiting the scope of a planning permission

At times when I am busy it has occasionally been difficult to write up posts for this blog, and there were times last year when I was very busy indeed. One case which deserved attention was the decision of the Court of Appeal in Wall and others v. Winchester City Council [2015] EWCA Civ 563 [which seems sometimes to be referred to by its name at first instance - as Winchester City Council v SSCLG], in which judgment was given on 17 March 2015.

I don’t propose to rehearse the facts of the case. Its significance lies in its discussion of the limitation of the scope of a planning permission by description. In other words, in the absence of a condition attached to the permission, to what extent does the description in the operative words of the permission have the legal effect of limiting the scope of the permission?

The previous judicial authorities on this issue are well known. They include Wilson v. West Sussex CC [1963] 2 Q.B. 764 – “an agricultural cottage” and East Suffolk CC v. SSE (1972) 70 L.G.R. 803 - “a detached bungalow or house for occupation by an agricultural worker”) which established that the initial use of a development is limited by the description of that development in the operative words of the planning permission that authorises it, but it was clear from those cases that such a description could not prevent the subsequent use of the property for some other purpose within the same Use Class (by virtue of what is now section 55(2)(f) in the 1990 Act). It was subsequently confirmed that in the absence of an express condition attached to the permission, this does not prevent a different use being implemented at a later date, provided it does not amount to a material change of use constituting development. (See I’m Your Man Ltd v. SSE [1998] P.L.C.R. 107, also Uttlesford DC -v- SSE (1989) JPL 685).

The Winchester case related to a travelling show people’s site, and the crucial point is that this is a sui generis use, whereas the use of a single private dwellinghouse (for example) for holiday lets still falls within Use Class C3 in most cases (although there can be exceptions, as previously discussed in this blog – such as Moore v. SSCLG [2012] EWCA Civ 1202). As I have just mentioned, in the absence of a condition preventing this, section 55(2)(f) would normally apply to such a use. The Winchester case is very clearly distinguishable from this situation, because the planning permission authorising the change of use of the site to use as a travelling show people’s site did not merely contain a limitation, but it prescribed the scope of the sui generis use that was authorised. It did not authorise a general caravan site use.

In the judgment, reference is made to the well known case of Wilson (cited above). This established that the description of the development [erection of “an agricultural worker’s dwelling” in that case] limited the purpose to which the planning unit could be put, at least in the first instance. In that case, the court left open the question as to whether a subsequent change in the manner in which the dwelling was used would be a material change of use. In later cases (also cited above) it was established that a limitation by description of the kind in the Wilson case was insufficient, in the absence of an appropriate condition, to prevent the operation of section 55(2)(f). The essential point is that where (as in the Winchester case) the limitation in the description of the authorised development is describing a sui generis use, then a change of use to a wider caravan site use could, as a matter of fact and degree, be a material change of use, as the High Court and CA found it was in the Winchester case (over-ruling the inspector). The other cases cited in Jeremy Sullivan’s judgment all involved sui generis uses.

Nothing in the Court of Appeal’s judgment disturbs the principles applying to dwellings and holiday lets (and/or any other change of use within one and the same use class). In these cases, the rule in I’m Your Man is still fully effective – i.e. if there is no condition, then there is no restriction on any other use within the same use class.

Because Winchester was a case in which the change of use authorised by the planning permission related to a sui generis use, the well known rule in Wilson applied not only to the initial use but to the use of the site without limit as to time and without limit as to the scope of the use. The planning permission authorised only a travelling show people’s site and nothing else.

The position would have been different if the authorised use had in fact fallen into one of the Use Classes identified in the Schedule to the Use Classes Order. If, for example, the planning permission had authorised a specific and limited category of residential use of a building, which would fall wholly within Use Class C3 (dwellinghouses), then whilst the initial use of the building could only have been for the limited category of use specified by the permission, the description of the authorised development would not (absent a relevant condition) have prevented the subsequent use of the building for any other purpose also falling with in Use Class C3.

A residential caravan site does not, of course, come within Use Class C3 (or any other use class) and so a condition was not required in the Winchester case to limit the future use of the site, because the description of the specified sui generis use in the planning permission was sufficient to limit the use of the site to that use and no other. The attempt by the occupiers of the site to call in aid I’m Your Man Limited in this context would appear to have been wholly misconceived.

© MARTIN H GOODALL

Enforcement Notice issued without authority

My attention has been drawn to an appeal decision in Hertfordshire in November 2015 (Ref: 3005612), where an enforcement notice was found to be a nullity because it was issued without proper authority.

One of the first things that was drummed into me in my first job in local government back in 1979 (at Hertsmere Borough Council, as it happens) was that, when taking any action on behalf of the Council, officers should always ask themselves “What is my authority for doing this?” In those days, this usually meant finding the appropriate committee minute authorising the action being taken, but with the increasing use of delegated powers by officers, it is often a question nowadays of checking the Council’s scheme of delegation and ensuring that the officer who purports to have authorised a particular action, such as the service of an enforcement notice, has delegated authority to do so and that the action is taken in the name of that officer.

The usual practice in most authorities to enable officers to exercise delegated powers used to be to designate the Chief Officer in the department concerned as the officer having the relevant delegated power, although other named officers may be given specific delegated powers. There is judicial authority (although I am sorry I haven’t got time to look it up at the moment) that indicates a fairly relaxed attitude on the part of the courts to the actual detail of the exercise of such delegated power. It seems that the courts do not insist that the Chief Officer should personally sign off the action concerned, provided that the action is taken in the Chief Officer’s name by someone acting on instructions within the scope of their own proper responsibilities. The notice should certainly bear the name of the Chief Officer (or other officer) to whom the relevant delegated power has actually been assigned, even if this is only a rubber stamp or a facsimile signature. There must however be an ‘audit trail’ that enables the action to be traced back to that senior officer through a line of reporting, even though that senior officer may not actually have actively instigated the action in question.

The old rule - “Delegatus non potest delegare (a person with delegated power cannot sub-delegate that power) still applies, in the sense that ultimate responsibility must still rest with the officer to whom executive authority has actually been delegated under the council’s scheme of delegation. But provided another officer acting on their behalf and with their knowledge (in a general sense) is acting within the limits of their own responsibilities and reporting obligations, the courts have not been prepared to treat the resulting action as a nullity for want of authority, just because the senior officer did not personally take the formal decision themselves to initiate the action in question.

Where the local planning authority went wrong in the present case was that the council’s officers got into a muddle over recording the delegation of power to issue enforcement notices to the officer by or in whose name this enforcement notice was issued and, when challenged by the appellant’s representative in the appeal, were unable to produce a written record showing that this officer had actually been given the relevant delegated power to issue the enforcement notice. A notice issued without proper authority must be ultra vires and a nullity; it cannot be an enforcement notice at all, and so there was nothing to quash. For the reasons briefly outlined above, the inspector concluded that the notice was a nullity and therefore took no further action in connection with the section 174 appeal against the purported enforcement notice.

The LPA could have had a ‘second bite’ by serving another enforcement notice within 4 years, taking care this time to ensure that it would be issued under properly delegated authority, but in practice, planning permission was granted by the Inspector in a parallel section 78 appeal against the refusal of planning permission, and this no doubt resolves this particular case.

© MARTIN H GOODALL

The 56-day rule – a further example

I am grateful to Greg Dowden of Indigo Planning for passing on to me a copy of a double appeal decision (3065819 and 3133462) in Richmond issued last November, which demonstrates how a local planning authority can come unstuck on the 56-day rule, and the consequences they may then face in terms of costs. The two prior approval applications that were the subject of these appeals were dated 20 October 2014, and each was refused by notice dated 30 December 2014. In each case, the development proposed was change of use from B1(a) to C3 residential to provide two 2-bed dwellings. One application proposed one on-site car parking space and the other proposed two on-site parking spaces.

The Council received the two prior approval applications on 23 October, as acknowledged on their web-site. On 4 November the Council requested revised site plans showing the car parking spaces, and these were provided, after which the Council stated that the applications were accepted as valid on 5 November. On the basis of the date that the Council received the applications, the 56 days would expire on 18 December, whereas if taken from the date when the Council stated that the applications were valid, the 56 days would expire on 31 December. The refusal notices were dated 30 December 2014.

The GPDO does not contain a requirement or provision for applications to be validated, as is confirmed by the Court of Appeal decision in Murrell, but paragraph W(2) lists the information that must accompany an application, including ‘a plan indicating the site and showing the proposed development’ and paragraph W(3) provides that a local planning authority ‘may refuse an application where, in the opinion of the authority the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with any conditions, limitations or restrictions specified in this Part as being applicable to the development in question.’ The Council claimed that whereas they could have refused the application when they considered it did not provide the necessary information, ‘in the spirit of reasonableness an e-mail was sent to the appellant on 4 November 2014’ requesting the site plan showing the car parking. Whilst it appears to be the case that the appellant complied with the request and supplied another site plan, this approach is not what is provided for in the Order, and the Inspector referred again to Murrell, which confirmed that a request for further information does not stop the clock. Whether or not the application did contain the necessary information, as set out in sub-paragraph (2), the choices open to the Council were clear - accept the information or refuse the application under paragraph W(3). [The Council was, of course, entitled to request further information, but still had to determine the application within the 56-day period.]

The council also fell into error in relation to their consultations. They sent out a consultation letter dated 7 November 2014, that is to say after the request for and receipt of, the disputed site plan, stating that “We are writing to advise you that this Council has received the above prior notification on 23 October 2014 and are required to give notice on any adjoining owner or occupier of the proposed development. Any comments must be received within 21 days from the date of this letter i.e. 28/11/2014 because the local planning authority must issue written notice to the developer within 56 days from receipt of the application (31/12/2014) that either prior approval is not required or prior approval is granted, otherwise the developer may proceed”. In the terms of the GPDO (see paragraph W.(11)), the 56 days calculated from the stated date of receipt, 23 October would end on 18 December, not 31 December as stated by the council.

The Inspector noted that there appears to have been some interchangeable use by the Council of the words ‘received’ and ‘valid’ but the wording in the GPDO is clear - “56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority”. The Inspector therefore concluded that the 56 days should be considered as running from the acknowledged date of the Council’s receipt of the applications, 23 October 2014, and expired on 18 December. In the absence of a written notice under paragraph W(11) by that date, the permitted development could now proceed.

The LPA raised two other issues on appeal. The first of these was whether the building was in use within Use Class B1(a) on 29 May 2013, or if it was not in use on that date, when it was last in use before that date. The appellant produced a statutory declaration to which a lease was exhibited, showing that the appeal premises were leased as offices until surrender of the lease in November 2007. The Inspector accepted that Class B1(a) could be taken to be the lawful use of the building. No other use had been shown to have been established or permitted between the surrender of the lease and 29 May 2013. The Council and others had referred to various indications to the contrary, but no firm evidence was submitted, even where this might reasonably have been obtainable by the Council, such as the business rate record. On the balance of probabilities on the information available, the Inspector therefore concluded that the premises in question were in B1(a) office use on 29 May 2013, or when last in use prior to that date, and that the proposed change of use was therefore development that is permitted under Class O.

The other issue raised by the LPA related to transport and highways impacts. The Inspector did not accept the Council’s contentions in this regard, and in any event, having determined that the Council had missed the 56-day deadline for determining the prior approval application, it would not have been open to him to consider any transport and highways impacts of the development [nor could any contamination risks or flooding risks on the site be taken into account by the Inspector in these circumstances].

The Council also suggested various conditions, but since the Inspector had already concluded that the appellant was entitled to go ahead with both developments in any event, there was no basis on which he could attach further conditions in addition to the standard ones contained in Class O. Unilateral obligations under section 106 (relating to the proposed parking arrangements) had been submitted to the Council with the prior approval applications, but they were subject to a proviso that “the obligations in this Deed are conditional upon the receipt from the Council of a written notice that Prior Approval is not required or a receipt from the Council of a written notice giving their Prior Approval”. Neither of these events had occurred and so the Inspector confirmed that these planning obligations under section 106 are not binding on the appellants.

Having got it so comprehensively wrong, the Council can hardly have been surprised that a full award of costs was made against them, although they did their best to resist the costs application. The appellant had sent an e-mail to the Council on 30 December 2014 stating their view that the 56-day period had elapsed, and by return e-mail the Council disagreed with that view, issuing the refusal notice that day. The Council did not agree that the premises were in B1(a) use on 29 May 2013 or when last in use. There were several options open to the appellant after the expiry of what they viewed as the 56-day period, or after the receipt of the refusal notice. First, they could accept the situation as stated by the Council and make a planning application for the proposed development instead. Secondly, they could carry out the development on the basis of their view that the 56 days had elapsed, so that it was now lawful to go ahead with the two developments. Thirdly, they could submit an application for a lawful development certificate for the proposed development, on the basis that the development applied for had become lawful due to the Council's failure to respond within the 56-day statutory period. Finally, they could lodge an appeal against the Council’s purported refusal of prior approval (and also against its failure to determine the application with the 56-day period).

Obviously, a planning application was not a realistic option, and might have been dismissed, quite apart from the expense and delay that would have been involved. The second option would also have carried a significant risk in view of the difference of opinion with the Council, both over the 56-day period and over the qualifying office use, and could well have led to enforcement action being attempted against the appellant. The third option of seeking a lawful development certificate would have been less risky but likely to lead to the same differences of opinion being aired as became the subject of these two appeals, with the possibility of refusal. (Another option referred to by the Council of obtaining a lawful development certificate to show the lawful use at 29 May 2013 would also have resulted in delay.) These appeals were a reasonable response to the situation and the only real option open to the appellant.

The appellant had in fact made continuing attempts to avoid the cost and delay of appeal. This started with the e-mail of 30 December, the response to which was the Council’s assertion that the 56 days was still running followed by the refusal notice. On 24 March 2015 the appellant contacted the Council to again to give them the opportunity to rectify what was seen as an error, but the Council refused. The first appeal was submitted on 3 May 2015 and the appeal in respect of the second development appears to have followed a few months later. It is unclear why this occurred, but possibly in light of the Council continuing to contest the first appeal.

On the procedural matters that the Council alleged were relevant to the costs issue, the Inspector drew attention to his accompanying appeal decision and the reference to the Murrell case, which explained the situation regarding the amount or quality of information submitted for prior approval, it being for the Council to accept it or refuse the application; there is no provision for ‘stopping the clock’ from the operative date of receipt of the application provided that the information is as required under paragraph W(2).

On the substantive grounds, there was a lack of evidence to back counter-claims on the B1(a) use, in the face of the statutory declaration. Parking was a matter that had been accepted by a previous Inspector for what appears larger numbers of domestic users, although the loss of any commercial users would have had an effect, but the dimensions of the parking and access were stated not to have changed.

Ministerial advice on costs in appeals is now set out in the online Planning Practice Guidance (although it largely repeats the basic principles that were previously set out in the well-known costs circular). Among the sins on the part of LPAs that may result in an award of costs are:

• preventing or delaying development which should clearly be permitted, having regard to its accordance with the development plan, national policy and any other material considerations; (The Inspector decided that the LPA’s conduct had had that result in this case.)
• acting contrary to, or not following, well-established case law; (The Murrell case and the GPDO give the procedure for accepting or rejecting information in a prior approval application, but not ‘stopping the clock’.)
• failure to produce evidence to substantiate each reason for refusal on appeal; (In the circumstances of this case, because of the operation of the 56-day rule, this did not arise in this case with regard to transport and highways, and the evidence produced by the LPA in defence of their contrary view of the B1(a) use was lacking.)
• persisting in objections to a scheme or elements of a scheme which the Secretary of State or an Inspector has previously indicated to be acceptable. (Once again this did not in fact need to be addressed in the Appeal Decision, but a previous Inspector had ruled on highway and parking matters for a similar-enough proposal. The appellant had to bring evidence to address this at appeal in case their 56-day claim failed.)
• not reviewing their case promptly following the lodging of an appeal against refusal of planning permission (or non-determination), as part of sensible on-going case management. (The appellant gave the Council numerous opportunities to address the case and avoid the appeal, and these were not taken.)

The Inspector reiterated that the appellant had little viable option but to appeal, having taken all available steps to avoid that state of affairs and had then tried to broker a reason to withdraw it, but to no avail. As a result the appellant had been put to the cost of appeals that should have been avoided, by the Council’s refusal to accept that the 56 days had elapsed and by their persisting with the claim that the proposal was not permitted development [by reason of the disputed B1(a) use] and that it would result in highway impacts. He therefore found that unreasonable behaviour resulting in unnecessary or wasted expense, as described in the Planning Practice Guidance, had been demonstrated and that a full award of costs was justified in both appeals.

I felt it was worth reporting this appeal decision (and the accompanying costs decision) fairly fully, because it is a graphic example of a local planning authority’s failure to appreciate how the 56-day rule operates, and the consequences of missing the 56-day deadline. The costs decision is also in line with similar decisions in other cases, and it behoves LPAs to sit up and take notice, and to ensure that planning officers clearly understand how the prior approval procedure under Part 3 of the Second Schedule to the GPDO actually operates.

© MARTIN H GOODALL