Monday, 16 January 2017

Can an LPA override a prior approval ?

My colleagues and I in Keystone Law’s planning law team are currently wrestling with a point that has arisen in two separate cases that have come across our desks recently, and which has also been raised by a correspondent in this blog.

The question can be briefly summarised, but the answer is not quite so simple. The question is this - Where prior approval has been sought and given in respect of the specified matters under the relevant Class of permitted development in Part 3 of the Second Schedule to the GPDO, is it open to the LPA (after having given that prior approval) to assert subsequently that the proposed development is not in fact permitted development by reason of its not meeting the qualifying criteria for that Class of development?

A short time ago, I set out my preliminary view on this point in a response to a comment posted under my recent blog post on the ‘convertibility’ of agricultural buildings in light of the judgment in Hibbitt v. SSCLG . It is an issue that several local planning authorities seem to have latched onto following that judgment. However, a discussion with my colleague Ben Garbett has convinced me that the legal position may not be so straightforward as it originally seemed to be.

There is no doubt as to the position where the legal status of the land or building has changed since the prior approval was given, for example by reason of the subsequent listing of the building under section 1 of the Listed Buildings Act, or designation of the area in which the site is located as a conservation area. The decision of the Court of Appeal in R (Orange Personal Communications Services Ltd) v Islington LBC [2006] EWCA Civ 157 made it clear that once prior approval has been given, this has the effect of ‘crystalising’ the planning permission granted by Article 3(1) of the GPDO, so that any subsequent change in the status of the land cannot affect the right to carry out the permitted development, even if that development does not commence until after the status of the land has changed by reason of a designation that would otherwise disqualify it from permitted development.

However, my initial view was that the Orange case does not assist a developer where the alleged disqualification of the site from PD does not arise from a subsequent change in its status or designation, but was an existing factor that would have disqualified the site from PD even before the prior approval application was determined. I originally took the view that a grant of prior approval cannot be relied upon in these circumstances, because if the site does not in fact qualify for permitted development then a purported prior approval by the LPA of those matters specified for prior approval cannot overcome that disqualification.

The basis for my earlier opinion was that the actual planning permission for the development is granted by Article 3(1) of the GPDO and it is this permission that is dependent on the qualifications in the GPDO being met. The LPA is not itself granting planning permission, nor in giving its prior approval is it approving the development as such; it is merely approving the submitted details in respect of those matters that specifically require prior approval. It follows (or so I originally thought) that the giving of prior approval could not overcome the fact that the development is in any event disqualified from being PD. However, I have now come round to the view that that there may be other factors to consider.

It seems clear that in relation to Part 3 (and also to Parts 6 and 16) of the Second Schedule to the GPDO, planning practice guidance, as well as certain judicial dicta, both indicate that there is at least an implied requirement that the LPA, in dealing with a prior approval application, should also consider whether the proposed development does in fact qualify as permitted development, or whether it is disqualified or precluded for any reason. I will discuss this below, but if this proposition is correct, the argument is that after it gives its prior approval it is not then open to the LPA to claim that the proposed development does not in fact qualify as PD, so as to prevent the development being carried out.

Even the wording of the relevant statutory provisions seems to support this alternative view. So, for example, in Part 3, paragraph W(3) provides that the local planning authority may refuse an application where, in the opinion of the authority, the proposed development does not comply with, or 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 Part 3 as being applicable to the development in question.

There is a clear implication in paragraph W(3) that the LPA will consider not only the specific matters requiring prior approval but will also consider whether the proposed development complies with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. It is therefore arguable that in giving its prior approval in respect of the prescribed matters, the LPA thereby also accepts that the proposed development complies with the relevant conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, because paragraph W(3) provides that the LPA may refuse the prior approval application where these qualifications are not met, and there must be a reasonable expectation that the authority will necessarily do so in those circumstances. Ergo, the prior approval also has the effect of confirming that the proposed development does qualify as permitted development, in compliance with the applicable conditions, limitations and restrictions.

I am sure I am not alone in finding the government’s online Planning Practice Guidance next to impossible to navigate, which renders it practically useless. So far as I have been able to ascertain, current practice guidance does not advise LPAs as to how they should consider and determine prior approval applications, and so in researching this issue I was driven back on previous ministerial policy guidance (now withdrawn) that dealt with this type of development. For example, paragraph E.14 in Annex E to the former PPG7 (which was not finally cancelled until the publication of the online PPG in March 2014) advised in relation to prior notification applications under Part 6 that in determining whether their prior approval would be required to the siting or design of the proposed development, local planning authorities should also use the determination procedure to verify that the intended development does benefit from permitted development rights. As I have indicated, I have been unable to ascertain whether this advice has been carried over to the online PPG, but it seems to me that the principles expounded in Annex E to PPG7 are still applicable (notwithstanding that they no longer have the ministerial imprimatur). If so, then this is a further example of the implication mentioned above that the LPA’s prior approval (or a determination that their prior approval will not be required) necessarily involves acceptance that the development does qualify as permitted development.

Off-hand, I can’t recall whether there was a circular on prior approvals under Part 3 before the great bonfire of ministerial guidance conducted by Eric Pickles, and I no longer have the 13-page list of cancelled circulars that was issued when the online PPG was launched in March 2014. If any reader is aware of any past or present ministerial guidance on the determination of prior approval applications (other than that in Annex E of PPG7 mentioned above), I would be grateful to have my attention drawn to it.

Further support for the proposition put forward above is to be derived from the judgment of May J in R. v. Sevenoaks DC ex p Palley [1994] E.G. 148 (C.S.).

This was a case that concerned development that was allegedly permitted agricultural development under Part 6. The LPA had confirmed that their prior approval of siting and design would not be required (and so, it was argued, had accepted as matter of law and of fact that the development in question qualified as permitted development). However, a neighbour successfully applied to the High Court to quash that determination on the grounds that the development did not in fact qualify as PD under Part 6. The case turned on whether the site qualified as “agricultural land”, but the Court first had to consider whether this question was a matter of precedent fact or whether it was a question for consideration by the LPA in determining whether their prior approval would be required.

The parties agreed that the question whether the relevant land is “agricultural land” [and so whether it qualifies for PD under Part 6] has to be considered before the development is carried out. Counsel for the LPA submitted that the same question did not strictly have to be answered at the time a determination was made by the LPA. In May J’s judgment, however, it was clear that the question does have to be asked and answered at the time of determination. If there is a material delay between the determination and the works the question may have to be considered again and may not in any particular case have the same answer. [This implied that a subsequent change of circumstances might disqualify the development as PD, but this judgment was long before the Court of Appeal decision in Orange.]

The definition of “agricultural land” includes that the land is “in use for agriculture” and that it is so used “for the purposes of a trade or business.” Counsel for the neighbouring objector submitted that these are matters of precedent fact such that the Court can make a factual determination on the evidence and is not limited to reviewing the LPA’s factual determinations on Wednesbury grounds.

He referred first to a passage in R. v. Home Secretary ex p. Khawaja [1984] A.C. 74 at 97, in the speech of Lord Fraser of Tullybelton, who had opined (in agreement with Lord Bridge and Lord Scarman) that whether a person was an illegal immigrant was “a precedent fact which has to be established”. It was not enough that the immigration officer reasonably believed him to be an illegal entrant if the evidence did not justify his belief. Accordingly, the duty of the court must go beyond inquiring only whether he had reasonable grounds for his belief. [The House of Lords nevertheless recognised that this decision was at variance with a train of decisions culminating in R. v. Home Secretary ex p. Zamir [1980] A.C. 930 to the contrary effect, namely that that the function of the court was only to see whether there were reasonable grounds for the decision of the immigration officer.]

May J therefore turned to R v. SSE ex p. Davies (1991) P. & C. R. 487, where the Court of Appeal held that the question whether a person had an interest in land within section 88 of the Town and Country Planning Act 1971 was a question going to the jurisdiction of the Secretary of State to hear an appeal. The Court was therefore entitled to determine the question itself and was not limited to reviewing the decision of the Secretary of State on grounds of perversity or unreasonableness. Neill LJ said (at 492): “It seems to me that, in such circumstances, where the decison impugned involves a question as to the jurisdiction of the decision maker, and where the primary facts are contained in documents and do not involve any questions of credibility or policy, the Court should look at the matter afresh and make up its own mind.”

Reference was also made to R v. Oldham MBC ex p. Garlick [1993] A.C. 509, a case which turned on whether an applicant for housing (on grounds of homelessness) did or did not have the mental capacity to make that application. Lord Griffiths said (at page 520) that it was understandable to regard this as a question of fact to be decided by the Court. But if the relevant Act only imposed a duty on the housing authority in respect of applicants of sufficient mental capacity to act upon the offer of accommodation, then it seemed to him that Parliament must have intended the housing authority to evaluate the capacity of the applicant. It followed that the authority’s finding could only be challenged on judicial review if it could be shown to be Wednesbury unreasonable.

In R. v. South Hams DC ex p. Gibb (The Times June 8th 1994), the Court of Appeal had to consider whether applicants were gypsies within the meaning of the Caravan Sites Act 1968. Neill LJ held that the possibility of applying the Khawaja principle in a case such as that before the Court had been rendered impossible, certainly in the Court of Appeal, by the House of Lords decision in ex p. Garlick. Neill LJ was satisfied that Parliament must have intended that, if as a matter of law local authorities had applied the right test, the question whether particular persons or groups of persons were, as a matter of fact, gypsies was pre-eminently a matter for the authorities concerned.

In any matter which a public authority has to decide, there will always be initial facts to be established. It was, in May J’s view, clear that the mere fact that a particular fact or group of facts is logically the first consideration does not constitute it as a “precedent fact”. The passage relied upon by counsel for the neighbouring objector in ex p. Davies referring to primary facts contained in documents and not involving any questions of credibility or policy suggested that the Court was unlikely to look afresh at matters which require detailed investigation and factual judgment. The passage quoted above from ex p. Garlick said that the Court must look at the intention of Parliament, and that where very immediate investigations are needed to make the system work, the likely conclusion is that they can only be carried out by the authorities concerned. In his judgment, that applied to the instant case. A question whether land is in use for agriculture and so used for the purposes of a trade or business is not likely to be a straightforward paper enquiry. It may require site inspections and consideration of a range of facts and perhaps documents by suitably qualified people. In his judgment, it was plain that the legislative intention was that these matters should be considered (subject to any question of perversity) by the planning authority alone.

In the event, May J found that the LPA’s determination that the site in question was agricultural land was legally flawed (due to only the most perfunctory consideration having been given to the site’s actual status), and it was for this reason that their determination was quashed. It is clear, however, that absent this legal flaw, it was for the LPA to determine, as a matter of fact and degree, whether the land in question was “agricultural land” so as to qualify for PD under Part 6, as part of their determination as to whether their prior approval would be be required in repect of the siting and design of the proposed development. As noted above, this would have reflected the ministerial guidance in Annex E of PPG7 [or the equivalent guidance that would have been applicable in 1992] to which I have drawn attention above.

It would therefore appear from the judgment in ex p. Palley, following the judicial authorities cited in that judgment, that the question as to whether proposed development qualifies as PD (in those cases where the LPA has to determine whether their prior approval will be required, and if so whether or not it will be given) is not “a matter of precedent fact”, but is a matter of fact and degree to be determined by the LPA as part of their determination of the prior approval application. In particular, in the case of permitted changes of use under Part 3, the provisions of paragraph W(3) clearly envisage this approach.

Arguably, therefore, where a prior approval has been given, the LPA must be taken to have confirmed that the proposed development complies with the conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, so that it duly qualifies as PD. It will not thereafter be open to the LPA to argue that the development does not in fact qualify as PD for any reason. The only exception to this would be deliberate deceit on the part of the applicant, whereby they had misled the authority as to the true factual position, in which case (in accordance with the Connor principle, as applied in the planning context by the Supreme Court in Welwyn Hatfield) the applicant’s deceit would prevent them in those circumstances from relying on the benefit of the planning permission granted by Article 3(1) of the GPDO.



  1. Martin

    Another interesting post thank you.

    Another factor, which I think is unique to planning, is that the same Acts that provide for the GPDO and the prior approval processes also includes the familiar express provisions for landowners/developers to seek a ruling from the LPA on the lawfulness of a proposed development. I can't help but feel that where there is an express process for a party to resolve what might be a precedent fact then the courts might not easily be persuaded that that the same determination is implied in another process. Isn't there a case mid 90's that discusses this point in relation to the refusal of a planning application which was for development which it was subsequently argued was PD?

    1. Isn't Lawful Development Certificate and Prior Approval both subject to TCPA 1990 Sections 191-192 ?
      Are you saying both are effectively the same thing !

  2. I think the case Richard W may possibly have in mind was the House of Lords decision in Reprotech, which finally put paid to the idea that the doctrine of estoppel could be applied in planning matters (other than issue estoppel or estoppel per rem judicatam which do still apply in planning law). The point was made that rather than seeking the informal opinion of planning officers, which cannot bind the LPA, a person wishing to confirm that existing or proposed development is lawful should apply for an LDC under section 191 or 192. The HL emphasised that it was only by this formal procedure that a binding opinion could be obtained from the LPA.

    However, that is a rather different point from the one raised here. We are dealing here with a planning permission granted by Art. 3(1) of the GPDO, subject only to prior approval of certain matters by the LPA (or their determination that their prior approval is not required). Once prior approval is granted, the Court of Appeal decision in Orange confirms that the planning permission is thereby ‘crystalised’.

    In principle, the qualification of a proposed development as PD would appear to be an issue that is entirely separate from the grant of prior approval (and this was the view I initially expressed). However, it appears on closer examination (particularly bearing in mind the wording of paragraph W(3)) that the prior approval must be taken also to involve a determination by the LPA that the restrictions, limitations and conditions applicable to that Class of PD are met, and that the proposed development accordingly qualifies as PD.

    It is in light of this factor that the judgment in ex p. Palley becomes relevant, because the determination by the LPA is necessarily a judgment by them of a matter of fact and degree that can only be challenged on Wednesbury grounds by way of an application for judicial review. The point of the judgment in ex p. Palley is that because (having regard to the wording of paragraph W(3)) the LPA must be taken to have considered and determined whether the development does in fact qualify as PD that the issue is not merely “a matter of precedent fact .”

  3. Thank you, yes it was Reprotech I had in mind.

    Re-reading para W3 reminds me of my original double take when CLG first started using the language of 'refusing an application' when the application in question should merely be for approval of the details of a development which is deemed to be permitted. The whole problem seems to me to stem from this misapprehension in the drafting of para W that an LPA somehow determines a prior approval application (as opposed to determining whether certain details are required for to be approved and if these details are acceptable).

    Two more thoughts:
    W3 refers to "conditions, limitations or restrictions"
    I can think of several instances where an arguable 'precedent fact' comes within this - in Class P for example development is restricted in the locations listed in (g) and limited to the floorspace stated in (d). But in other cases the issue will be about whether as a matter of fact and degree the development comes within the description of permitted development. Might be an arguable point there.

    And my second thought is that W3 only applies to Part 3 and I don't think there are equivalent sections for any of the prior approvals outside of Part 3. Happy to be corrected if wrong!

  4. Richard W makes some pertinent points.

    I agree that the legislative wording I have quoted appears only in Part 3. On the other hand (as noted in my blog post), ministerial guidance on the operation of Part 6 also encouraged LPAs to consider whether the proposed development did in fact qualify as PD when considering the prior notification application.

  5. Is there anything the applicant can or should do in respect of this conclusion?

  6. In answer to Passer-by, any action on the part of the applicant/developer would depend on what attitude the LPA is taking to the matter. If the LPA has not sought to question the qualification of the development as PD in light of Hibbitt, the developer may feel they can just go ahead. However, if they have any doubts about it (or if the LPA has raised any doubts), the way forward in those circumstances would appear to be an application for an LDC under section 192, followed if necessary by an appeal under section 195.

  7. And does this affect the position if the LPA fails to determine the application within 56 days?
    Does this now approve all requirements and conditions by default?

  8. In answer to CJS, where no decision has been made and communicated to the applicant within the 56-day period, there has consequently been no determination as to whether or not the proposed development complies with the applicable limitations, restrictions and conditions, so as to qualify as PD under that Class in Part 3. It follows that there can be no presumption in these circumstances that the proposed development does qualify as PD. If in practice it does not qualify, then the 56-day rule does not apply, and the development will be unlawful, notwithstanding the failure of the LPA to determine the prior approval application.

  9. Interesting post, Martin. I agree, for what it's worth, with your conclusion re Part 3 and that the granting of prior approval also comprises the LPAs determination that the proposal is permitted development because of the direction of paragraph W(3).

    However, as Richard W points out, paragraph W pertains to Part 3 proposals only which leaves prior approval applications against other parts of the GPDO, Part 6 for example, without legislative direction. Indeed appeal decision 2165862, the only authority of which I was previously aware, appears to substantiate the view that it is not within the gift of the authority to determine a Part 6 proposal's compliance with permitted development rights as the legislation provides no mechanism for refusing the application on such grounds. Rather, it infers that a developer should apply for prior approval and upon receiving a favourable determination on those matters, should follow with an CLOPD submission to unequivocally determine the proposal's compliance with the permitted development criteria.

    It would seem, if I have understood correctly, that R. v. Sevenoaks DC, which interestingly preceded the appeal case I have quoted above, indicates the opposite to be true and that a prior approval decision, even against non Part 3 proposals, determines the permitted nature of the development.

    It would be interesting to see whether or not this judgement retains its applicability without the direction of PPG7.

  10. I am grateful to MT for contributing this comment.

    I fully accept that it is only in Part 3 of the Second Schedule that the provisions of the GPDO would seem to indicate that a prior approval necessarily involves confirmation by the LPA that the proposed development complies with the restrictions, limitations and conditions applying to that development.

    However, as MT reminds us, R. v. Sevenoaks DC exp p. Palley is authority for the proposition that in any case where the lawfulness of permitted development depends on certain factual qualifications being met (and/or compliance with specified restrictions, limitations and conditions), and also upon a determination by the LPA as to whether their prior approval will be required, and if so whether it is granted, this necessarily involves a determination by the LPA as to compliance with those qualifications (etc.). This is an inescapable part of the LPA’s determination of the prior approval (or prior notification) application. The Court held in ex p. Palley that factual qualification and compliance with the stipulated criteria is not “a matter of precedent fact”, as had been contended in that case. Ex p. Palley related to PD under Part 6, and so the principle that it established would appear to apply equally to any development under Parts 3, 6 or 16 requiring a determination by the LPA as to prior approval.

    I have looked at the appeal decision of 2012 [2165862], to which MT also refers, but this was a case where, having received a prior notification under Part 6, the LPA refused to determine it at all “because of the nature of the current operation and the intended use.” The Inspector concluded that this was not a decision that it was open to the LPA to reach in the absence of an application under section 192. The Inspector therefore held that the determination made by the Council in this case was not a lawful decision. As such there could be no appeal against it, and so he would take no further action on the appeal.

    I have in the past suggested that where the LPA takes the view that the proposed development does not meet the relevant qualifying criteria, they are at liberty to take no action on the application. However, as I have previously pointed out, I would describe this as a “high risk strategy” on the part of the LPA, because if they prove to have been objectively wrong in their view, the right to go ahead with the PD would then arise automatically under the 28-day rule in Part 6 (or under the 56-day rule in Part 3 or Part 16).

    I think the Inspector was wrong in categorising the LPA’s decision in this case as an unlawful decision. However, as there had been no determination of the prior notification application under Part 6, there could be no appeal against this. He was right to point out that in those circumstances the only way in which the developer could obtain confirmation that he could lawfully proceed with his proposed development would have been by way of an application for an LDC under section 192.

    The better course for an LPA in these circumstances might be to determine the application, stating that their prior approval would be required, but refusing their prior approval on the ground that the development does not qualify as PD or that it does not comply with the relevant restrictions, limitations and conditions. I would not consider such a determination to be unlawful (in light of the judgment in ex p. Palley).

    However, I don’t consider that this appeal decision was in fact inconsistent with the underlying principle that was established by the High Court in ex p. Palley, because the LPA simply had not made a determination at all, and so the Inspector had no choice but to decline jurisdiction.

  11. Thank you for your elaboration. Some interesting points. What strikes me as unfortunate is that the Government didn't take the opportunity afforded to them in 2015 at the reworking of the GPDO to extend paragraph W to all Prior Approval applications rather than Part 3 alone. This would provide far more certainty on the matter and would be beneficial to applicants and LPAs alike.

  12. Hi all,

    Just to help with this- The GPDO sets out that LPAs ‘may’ refuse prior approval if the information submitted demonstrates that the development would not comply with the relevant GPDO restrictions, or where insufficient information has been submitted to demonstrate that the development would comply:

    (3) The local planning authority may refuse an application where, in the opinion of the authority—

    (a)the proposed development does not comply with, or

    (b)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 simplest example to consider is the prior approval regime for larger householder extensions. The applicant is not required to submit full details of the proposed extension. Indeed the fundamental (if flawed) objective of Government was to avoid the need for plans being drawn up. An OS extract with the location of the extension marked and three measurements is all that is required to be submitted.

    Based on this level of information it is not possible for the LPA to ascertain whether a particular extension would comply with the notoriously complex restrictions of ‘Class A’. It would be nonsensical in this circumstance if every LPA then required full drawings and details of every extension and refused Prior Approval if such information was not forthcoming. That would cancel out the very purpose of the streamlined process which Government introduced.

    Councils must therefore work on their own principles; e.g. refuse prior approval if the information submitted indicated a definite breach of GPDO restrictions, or if it is clear the particular PD rights do not apply.

    There is no legal requirement for the LPA to confirm whether a particular development would comply with the GPDO restrictions or even to confirm whether a particular property would benefit from the rights in the Class which has been applied for.

    I agree it is prudent for LPAs to refuse prior approval where there is an obvious breach of GPDO restrictions, or if it is clear the particular PD rights do not apply.

    It’s a ridiculous situation, but that is the situation which results from the way the legislation is written. The only way to seek confirmation from an LPA as to whether a particular development would in fact be lawful, is, as Martin states, to apply for a Lawful Development Certificate.

    I know many applicants do follow up Prior Approval applications with LDC applications to gain confirmation of whether their proposed development would be lawful, although strangely this is more common with householder extensions than it is with changes of use. Presumably householders are more risk adverse although clearly the stakes are higher with a change of use development.

    It may be the case that the grant of a prior approval ‘crystalises’ the planning permission, but this only applies where the development actually complies with the GPDO restrictions, and the property actually benefits from the rights set out in the particular class.

    If an LPA grants a prior approval where this is not the case, this could purely be down to the basic level of information which is required to be submitted. If the LPA has missed something, that is unfortunate, but as detailed above, there is no requirement on the LPA to ascertain that the prior approvals they grant can actually be lawfully implemented. They just have the option to refuse prior approval should they so wish if it appears the development would / may not be lawful.

    In the absence of a LDC application, it is for each developer to ascertain whether they have a prior approval they can lawfully enact.

  13. This does seem to open an interesting conundrum.

    A key question is: what is the status of a building where the LPA has issued Prior Approval for say change of use, but has subsequently refused a Lawful Development Certificate? Is it possible to legally enact the change of use?

    Also if Prior Approval really does not confer or consider PD, then is it possible to apply for a LDC that details a change of use without having first applied for Prior Approval? For example in the case of Class Q Barn Conversion.

    And finally do the external appearance of the Prior Approval and the LDC submissions need to be identical? i.e. would a minor change to the LDC application invalidate the existing Prior Approval?

    It would seem to my untrained eye that if the Prior Approval does not in fact confer Permitted Development then it seems possible to place a building in limbo where it is considered to be Permitted Development by Prior Approval, but that Permitted Development has been refused! Where then?

  14. The first of the two comments posted on 26 January expresses a view that was broadly similar to my own before my attention was drawn to ex p. Palley, but one cannot ignore this judgment, nor can one ignore the way paragraph W.(3) in Part 3 is worded. Applying both paragraph W.(3) and ex p. Palley, I think we have to accept that prior approval under Part 3 necessarily involves a determination by the LPA that the proposed development complies with the limitations, restrictions and conditions applicable to the relevant Class of PD. In light of ex p. Palley (which was concerned with a prior notification under Part 6) it seems that this also applies in respect of other parts of the Second Schedule to the GPDO where an LPA determines a prior approval application or prior notification.

    As regards yesterday’s second comment, from “Lost the Plot”, an LPA would appear to be wrong in refusing to grant an LDC in respect of a proposed development where a prior approval has been given. If both paragraph W.(3) and ex p. Palley are applied, an appeal under section 195 ought to succeed.

    However, I would have to answer the second part of the question in the negative. In the absence of a prior approval application having been made, or determined, the lawfulness of the proposed development cannot be presumed or predicted.

    Furthermore, if (after prior approval has been given) an application for an LDC is to succeed, it must necessarily describe the permitted development accurately, including the details of any building operations that were the subject of the proposal that was before the council. Any development that departs from those details would be unlawful, unless the LPA and the developer and the LPA have agreed otherwise in writing (in accordance with paragraph W.(12)). In the absence of any such written agreement, the revised scheme would have to be the subject of a fresh prior approval application before any such development commences.

  15. I have received a recent "Required and Granted" Class Q Prior Approval decision.
    A neighbour has since indicated to the LPA that he will request enforcement action if the permitted development is commenced, on the grounds that he disagrees that the development meets the qualifying agricultural use criteria. I have therefore submitted a Section 192 CLOPUD application to confirm the position.
    The LPA have now requested further evidence on the qualifying use, which is a grey area in this case.
    Given that the LPA considered evidence, and counter evidence from the objecting neighbour, in determining the original application in the Applicant's favour, I am questioning the need to proceed with the CLOPUD application - what happens if the Certificate is not provided, and what is the neighbour's recourse if the Applicant just proceeds with the permitted development?

  16. I cannot offer legal advice on the issue raised by my anonymous correspondent of 12 February without full professional instructions. On the face of it, however, it would appear that the council, in determining that prior approval should be granted, must be taken to have considered the agricultural qualification of the building for conversion under Class Q, in light of ex p. Palley. However, in view of the fact that the council has now called for clarification on the point, of what is admitted to be “a grey area”, an application for an LDC (CLOPUD) under section 192 may be the safest course to take. However, if push comes to shove and my correspondent wishes to contest the approach now being taken by the council, he should draw the judgment in ex p. Palley to the council’s attention. It might in fact be helpful to include it as one of the reasons for granting an LDC under section 192.

    Refusal of an LDC can be appealed to the Planning Inspectorate under section 195.

  17. I am new to your planning blog (very new as my interest flowed from a dinner conversation at the weekend) and I should stress I am a surveyor and a local councillor, not a planning professional. The dinner debate was about the idea that under a Class O prior approval application there would seem no reason why residential units which were sub standard in terms of Internal space, amenity space etc. would not obtain a planning consent despite flying in the face of Development Policies and the NPPF. Everything I have read in your blog and in other places seems to bear out this idea and yet there are Inspectors decisions which refer in the NPPF in their determinations. Is there a definitive answer?

  18. The answer to Alan S is that the NPPF is relevant only so far as applicable to the specific matters requiring prior approval. The size and internal arrangement of individual residential units, availability or adequacy of amenity space and similar planning issues are not matters requiring prior approval under Class O (or under any other Class in Part 3), and so neither the NPPF nor adopted local planning policies on these issues are of any relevance in the determination of a prior approval application.

    Where inspectors refer to the NPPF in their appeal decisions in prior approval cases, they are doing so in relation only to those matters that specifically require prior approval, and only to the extent that the NPPF is relevant in relation to those matters.

  19. In a similar vein, I have recently obtained Class O prior approval for conversion to 5 units, which my clients are yet to be implement. My clients now wishes to add a roof extension (thereby resulting in 5 larger units) and make various curtilage alterations, such as a refuse storage area for each unit, individual gardens etc.

    Originally the intention was to twin-track both the prior approval and operational development applications, but my client decided to take the cautious route and wanted to secure prior approval first, particularly as the LPA had indicated at pre-app that it didn't like the proposed roof extension.

    The LPA is now refusing to validate that planning application on the grounds that it should be for the change of use from offices to 5 units, and hence should attract a fee of £385 x 5, that Section 17 of the application forms (i.e. does the proposal include the gain or loss of residential units) should be completed, and that an FRA is required (despite the site being in Flood Zone 1 and the LPA having already granted prior approval with that application not including an FRA, and no additional hardsurfacing etc. being proposed).

    I envisaged the LPA being 'difficult' and consequently my submission included extensive reference to the appeal decision (31492229) cited some months on this blog relating to Wood Farm, Myddlewood, although I acknowledge in that case the prior approval was already being implemented.

    I also wasn't entirely sure about the correct fee, but to me the only appropriate fee would be based on the gross floorspace of the roof extension, although not as residential seeing that the prior approval is yet to be implemented.

    Needless to say I intend to go back to the LPA and try to 'ram' home the points I previously made but I'd be interested to hear people's views (Martin I've left your book in the office just when I most need it !).

  20. In reply to Adam B, I cannot give legal advice on this point without instructions but, as I see it, this is an application for planning permission solely for operational development in the form of the enlargement of the building. The use of the resulting residential units will then automatically be authorised by section 75 of the 1990 Act, and will not need any separate planning permission for change of use. I therefore see no excuse for the LPA’s refusal to validate the application. However, if they cannot be persuaded, then it may be necessary to invoke the dispute resolution procedure that is now available in respect of validation issues.

  21. In response to Adam B, it seems to me that the number of units is irrelevant. The process requires submission of 'a plan', nothing more, so no need to inform the LPA as to the number of units. But I've been in this position with an LPA before; it's a very unrewarding process, even though we seem to get the right result in the end.

  22. I fear that Passer-by may have overlooked the fact that Adam B is now seeking planning permission for enlargement of the building. The number and size of the newly created residential units may be relevant in this context. What Passer-by is referring to is the requirement when making a prior approval application under Part 3 simply to provide “a plan”. If this were a question of the detail to be provided in the prior approval application, I would be inclined to agree with Passer-by. However, the application that has now been made is for planning permission for the operational development involved in enlarging the building. However, it is only the physical aspects of the development that should now be of concern to the LPA, as the change of use of the building to residential use already has planning permission under Article 3(1) of the GPDO, following prior approval of those matters that required approval under Class O.

  23. Thanks all, the concern of my clients is that when it comes to selling the properties or plots, the planning history will only show "conversion of existing office floorspace to residential" and "erection of roof extension, elevational alterations (fenestration) and provision of refuse stores", and they are concerned that property solicitors will not be comfortable with this.

    From a strict planning perspective it's become an awfully lot more complicated than it needs to be !.

  24. The lawfulness of development is not dependent on the issue of a Lawful Development Certificate. It follows, therefore, that the provisions of sections 191 and 192 apply even in the absence of an application having been made for an LDC. However, the lawfulness of a particular development is dependent on the applicable law and the facts in that particular case.

    If I understand correctly what Passer-by is saying, the granting of prior approval should act as confirmation of the lawfulness of the proposed development, applying the principle established by ex p. Palley. I would agree with that proposition.

  25. Hi Martin

    I bought a office block from previous owners in 2014, who had applied for prior notice to LPA and proposed number of units to be constructed. However when I purchased the property,I was not aware of the numbers of units proposed by the previous owner agent and just assumed as the prior notice is approved and no external building work was required, I sent my design to local authority's building control and build more units than proposed, which was completed in 2015 and building control certificate was issued. In August 2017, I have received a notice from planning officer that either I reduce the number of units to the proposed by the previous owner agent or I apply for full planning with each units planning fees.
    Is there anything I can do,as it was genuine mistake by me to assume that under permitted rights, I do not have to advice the planners of the number of units and just require building control. Please help.

  26. Acting on behalf of an Authority, an applicant in Wales has created a new vehicular access onto an unclassified highway under GPDO Part 2 -Class B.

    The access is substandard in terms of design and visibility. What can the Authority do?

  27. In order to qualify as permitted development under Part 2, Class B, the highway access must be objectively required in connection with other permitted development. It must, in some sense, be ‘necessary’. This permitted development under Class B of Part 2 is, however, subject to the proviso in Article 3(6) of the GPDO that this does not authorise any development which creates an obstruction to the view of persons using any highway used by vehicular traffic, so as to be likely to cause danger to such persons. So if the Highway Authority considers that the substandard design and invisibility falls foul of Article 3(6), it is arguable that this development is not PD, and enforcement action can be taken against it by the LPA.

  28. Raj’s query of 23 August raises an interesting point. I have always taken the view that the number of units should be stated in a Class O application (although I am aware of at least one case where an appeal was allowed, even through the application did not specify the number of units). The number of units might possibly raise issues as to transport and highways impacts, but should not otherwise be an issue. This is clearly a question that cannot be answered with any certainty except on the basis of formal legal advice being given after a careful study of all the facts. This would require proper professional instructions and is beyond the scope of this blog.

  29. Hi Martin,

    Great blog.

    Does Keenan v Woking change your view on this matter?

    Thank you

  30. In response to Jennie B, someone else had already raised with me the case of Keenan v Woking, but in my view it does not affect the position. All that Keenan does is to confirm that if the development does not qualify as PD, the 56-day rule will not operate so as to allow the proposed development to go ahead in the absence of the prior approval application having been determined within the statutory time limit. There have previously been several appeal decisions to the same effect and I stressed this point in my book, A Practical Guide to Permitted Changes of Use (see page 201 in the Second Edition, and for good measure, I repeated it at the bottom of page 210).

    In my view, the judgment in Keenan does not affect the position in relation to Ex p. Palley, where determination of the prior approval application has necessarily involved consideration by the LPA as to whether the development qualifies as PD or not. in light of Ex p. Palley, I don’t think it is open to the LPA, having issued a prior approval, then to attempt to reopen the question of whether the development meets the relevant qualifying criteria.