Monday, 1 February 2016
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