Wednesday, 1 March 2017

Jumping the gun on permitted development


In my book (A Practical Guide to Permitted Changes of Use), I warned both in paragraphs 13.0 and 14.10 of the consequences of commencing development before the happening of one or other of three events – (a) notification that the LPA’s prior approval will not be required, (b) notification that prior approval is granted, or (c) the expiry of 56 days following the date on which the application was received by the LPA. I cited as an example an appeal decision [3136527] in February 2016, and I made the point that this was only one of a number of such appeal decisions where the developer had “jumped the gun”.

A judgment of the High Court in Winters v. SSCLG [2017] EWHC 357 (Admin), which was issued on 24 February, has provided further confirmation of this point. This case involved the erection of a larger domestic extension under Part 1, Class A of the Second Schedule to the GPDO, but exactly the same principle applies to developments requiring prior approval under Part 3 (Classes C, J, M, N, O, P, PA, Q, S, T and, in some cases, R).

In Part 1, Condition A.4(2) stipulates that “Before beginning the development” the developer must make a prior approval application, including all the information prescribed by this condition. In the same way, each of the Classes in Part 3 mentioned above is “subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required” as to the matters specified in respect of that Class of permitted development.

Furthermore, in Part 1, Condition A.4(10) clearly states that –

“The development must not begin before the occurrence of one of the following—
(a) the receipt by the developer from the local planning authority of a written notice that their prior approval is not required;
(b) the receipt by the developer from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 42 days following the date on which the information referred to in subparagraph (2) was received by the local planning authority without the local planning authority notifying the developer as to whether prior approval is given or refused.”

In Part 3, paragraph W.(11) similarly provides that :

“The development must not begin before the occurrence of one of the following—
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”

It is therefore clear that the judgment in Winters is equally applicable to developments under Part 3. The provisions in Part 3, including paragraph W.(11), are unequivocal. Before beginning the development the developer must make a prior approval application and, furthermore, the development must not begin before the occurrence of one of the three events mentioned above.

In Winters, the LPA did not give notice of their determination within the 42-day period that applies under Part 1, and it was contended on behalf of the claimant that this entitled her to continue with and to complete the development. However, as the learned Deputy Judge observed, whilst it is true that once the 42-day period [56 days in the case of Part 3] has expired without receipt by the developer of written notice that prior approval is not required or has been granted, the developer’s proposed development can be carried out in accordance with the details provided in the application, the planning permission granted by the GPDO does not authorise the carrying out of any development any part of which was begun before an application for prior approval was made to the LPA. Accordingly, in the Winters appeal, the Inspector was not obliged to allow the Claimant’s appeal if works to provide the extension had begun before she submitted her application to the Council.

It was contended on behalf of the claimant in that case that the Inspector had erred in law in finding that development had in fact commenced, but the court found nothing amiss in the Inspector’s treatment of the evidence or in respect of his observations on his site visit, and so the challenge to the Inspector’s conclusion that works on constructing the extension had begun before the claimant applied to the Council therefore failed and, for the reasons given in the judgment, the claimant’s challenge to the Inspector’s appeal decision was dismissed.

© MARTIN H GOODALL

8 comments:

passerby said...

One can well imagine commencing construction of a 4m extension on the assumption that it could be easily extended a further 2m, while still under construction, once the Prior Notification process is completed. But this makes clear that the act of commencing the extension itself voids the Prior Notification process.

Anonymous said...

What if applicant applies and then 4 days later commences by digging a trench , but the council gives refusal after 42 or 56 days, doesn't that crystalise the permission in this case ?

Archie said...

Martin - with reference to Part 3 applcations - the operative term must remain 'development' and what that actually comprises. ABD if operations, that were not development were undertaken prior to a Prior Notification application / approval (under section 55, paragraph (2) (a) (i) & (ii) then they cannot be development during or after; ever.
I'd say most LPA's are now interpreting Part 3 of the GPDO and those appeals that suit them, such that they would require planning applications to dry line a house or to change the milking machine!
If a 4m metre extension is PD then its always PD, irrespective of any PN appliction for a larger one, it is the right to build the larger (under PN) that is lost by commencement, not the right to build the 4m one. If there are no material objections to a larger one then it presumably would get planning consent anyway, and the guidance in the gpdo would be a big clue, and so it all becomes a bit immaterial other than to intelectualise someone's kichen size!

Martin H Goodall LARTPI said...

I entirely agree with Archie. The Winters judgment has no effect in relation to any works that do not amount to development by virtue of section 55(2)(a). The criterion for section 55(2)(a) is whether the works in question affect only the interior of the building or, at least, do not materially affect the external appearance of the building. I have made the point before (as well as re-stating it in A Practical Guide to Permitted Changes of Use) that carrying out works preparatory to a proposed change of use, provided that those works do not in themselves constitute development, do not amount to the commencement of development for the purposes of Part 3 of the GPDO. However, one should bear in mind the risk, in light of Impey, as confirmed in Welwyn Hatfield, that the change of use may be taken to have taken place if those internal works have reached such a stage as to render the building useable for its new intended purpose.

Reverting to Part 1, Class A, I agree that a domestic extension of less than 4m would be lawful in itself, but the whole extension will be unlawful as soon as it goes outside that dimension. There have been several examples of enforcement notices requiring the demolition of extensions in their entirety being upheld on appeal, despite arguments that the breach of planning control could be adequately remedied by simply reducing those extensions to within PD limits. Starting an extension that is designed and intended to extend more than 4m will be unlawful in the absence of a prior approval application having been submitted and determined (other than in default of determination by the LPA by the statutory deadline). A prior approval application submitted after building operations have started, even if they have not gone more than 4m beyond the rear wall of the original house, will be too late. I frankly thought this was obvious from the wording of the GPDO, so the judgment in Winters is unsurprising.

Martin H Goodall LARTPI said...

In answer to the anonymous query sent on Saturday 4 March, digging a foundation trench in these circumstances, i.e. before prior approval is granted, renders the entire development unlawful. This is very clearly spelt out in the GPDO. A prior approval should not be issued in these circumstances, but if it is (presumably because the LPA is unaware of the premature commencement of development), it cannot retrospectively authorise a development which is irretrievably unlawful.

The uncompromising advice has to be – “Don’t jump the gun!”

Archie said...

I was being a little tongue-in-cheek my meaing was that they cannot take the PD rights away (other than through Article 4). or you might have ot take down the whole 8m to rebuild the 4m! smacks of a penalty to me...thought that wasn't allowed in UK!

david said...

another great post Martin!

in regards to archies comment is a change of use a development? just lets say a prior notification was submitted for a permitted change of use such as class J or O the LPA accepted the notification and validated it, However they refused it after the 56 day period on the basis the change had allready occurred? would that be grounds of appeal either on the refusal or as the 56 days had expired?

Martin H Goodall LARTPI said...

In answer to David, a clear distinction has to be made between the position where the LPA has granted its prior approval or has notified the applicant that its prior approval will not be required (in which case ex p. Palley should apply, so that the LPA cannot then deny the basis on which that determination was made) and, on the other hand, the position where the LPA has either failed to determine the prior approval application, or has purported to notify the applicant of its refusal outside the 56-day period.

In the latter case, the 56-day rule will only apply if the proposed development really does qualify as permitted development. Purported “validation” of the prior approval application is irrelevant, as it has no legal effect whatsoever. Ex p. Palley certainly cannot apply in these circumstances.

In the scenario that David proposes, the developer has three choices – (1) go ahead with the development anyway (a high risk strategy, as the development will be unlawful, and subject to enforcement action, if it turns out that it doesn’t qualify as PD); (2) appeal under section 78 against the purported refusal of prior approval (which the Planning Inspectorate has accepted it is open to the developer to do, in view of the possibility that issues as to meeting the relevant criteria for PD may be in dispute); or (3) make an application under section 192 for an LDC (CLOPUD), based on the assertion that the 56-day rule has operated (but the LPA would probably refuse this on the grounds that it doesn’t qualify as PD in any event, in which case an appeal would then have to be run under section 195, and the same issues would arise as in the section 78 appeal suggested above).

What the LPA can’t do in an appeal where it has either failed to determine the prior approval application, or has notified the applicant of its refusal outside the 56-day period, is to raise in the appeal issues that relate to the matters that required prior approval (traffic and transport, flooding risk, etc., etc.). The only issues that can be raised in this case would be those that go to the qualification of the development as PD.