Thursday, 19 April 2018

Going behind a prior approval


If an LPA in determining a prior approval application under a relevant part of the Second Schedule to the GPDO decides either that their prior approval will not be required or grants such prior approval, can the authority later resile from that decision on the basis that the development does not in practice qualify as PD, or (alternatively) can a third party successfully challenge the LPA’s decision on the same ground?

I have been meaning to return to this topic ever since the judgment of the High Court in R (Marshall) v E Dorset DC [2018] EWHC 226 (Admin), in which judgment was given on 13 February.

In a blog post on Monday, 16 January 2017 (Can an LPA override a prior approval?), I drew attention to the little-known judgment in R. v. Sevenoaks DC, Ex p Palley [1994] E.G. 148 (C.S.), which appeared to suggest that when an LPA gives its prior approval (or decides that its prior approval is not required), it is inherent in that determination that the authority necessarily accepts that the proposed development does qualify as PD, so that the council cannot thereafter resile from that position.

Until my attention had been drawn to Ex p Palley, it had been my view that if the proposed development does not in fact comply with the criteria for permitted development under the relevant Class in (for example) Part 3 or Part 6 of the Second Schedule to the GPDO, either because a requisite pre-existing use did not qualify under that Class of PD, or because the proposed development is not within the limitations, restrictions or conditions that apply to the relevant Class of PD, then an application for prior approval, even if the approval is given (or if the application is simply not determined within the 56-day or 28-day period – whichever is applicable) cannot make the proposed development lawful, and so it cannot be carried out as PD.

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 specified matters that require prior approval. It follows (I had originally thought) that the giving of prior approval could not overcome the fact that the development is in any event disqualified from being PD.

During the course of discussion in comments that were posted in response to the revised view that I expressed in light of Ex p Palley, a correspondent raised with me the effect of the Court of Appeal’s decision in Keenan v Woking BC and SSCLG [2017] EWCA Civ 438. At the time, I felt that Keenan did not affect the position, because it simply seemed to me to confirm that if the development does not qualify as PD, the 56-day rule [or the 28-day rule in that case] 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 had 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).

However, it seems that the effect of the decision in Keenan is of slightly wider effect than that (at least so far as PD under Part 6 is concerned), and Mrs Justice Lang’s judgment in Marshall has prompted me to look more carefully at Keenan.

In Marshall, Lang J drew attention to the disqualification in paragraph A.1 of Part 6, whereby development is not permitted by Class A if it would consist of, or include, the erection or construction of, or the carrying out of any works to, a building, structure or an excavation used or to be used for the accommodation of livestock or for the storage of slurry or sewage sludge where the building, structure or excavation is, or would be, within 400 metres of the curtilage of a protected building, but in this case the proposed building was within 400 metres of several dwellings (including the Claimant’s home) which were “protected buildings” as defined. Furthermore, paragraph A.2 makes it a condition of permitted development under Part 6 that where development is carried out within 400 metres of the curtilage of a protected building, any building, structure, excavation or works resulting from the development are not used for the accommodation of livestock (except in certain defined circumstances).

Notwithstanding this, the LPA issued a decision notice in response to the developer’s prior approval application under Part 6, which stated that “The development, therefore, constitutes permitted development in accordance with the provisions of Part 6 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) and is subject to the standard conditions.” In dealing with this point, Lang J followed the judgment of the Court of Appeal in Keenan, and in particular the words of Lindblom LJ that, in order to be lawful, the development proposed had to fall squarely within the description of “permitted development” in the relevant Class.

In particular, Lindblom LJ observed in Keenan that the GPDO did not impose on the LPA a duty to decide whether or not the development in question was, in fact, permitted development under Class A of Part 6, albeit that the guidance in paragraph E14 of Annex E to PPS7 might have been read as encouraging it to do so. Nor did it confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. The sole and limited function of this provision was to enable the LPA to determine whether its own “prior approval” would be required for those specified details of that “permitted development”. If the authority were to decide that its “prior approval” was not required, the condition would effectively have been discharged and the developer could proceed with the “permitted development” – though not, of course, with any development that was not “permitted development”. If, however, the authority failed to make a determination within the 28-day period, again the developer could proceed with the “permitted development”, but again not with any development that was not “permitted development”. The developer would not at any stage have planning permission for development that was not, in fact, “permitted development”.

As Lang J put it in Marshall (referring to Keenan), the ‘prior approval’ conditions do not even come into play unless the proposed development falls “squarely within the description of Permitted development” in the relevant Class, and she emphasised that Keenan also decided that the LPA, when deciding a prior approval application under the terms of the GPDO [at least under Part 6, but see below], is not empowered, either expressly or implicitly, to decide whether or not the proposed development comes within the description of the relevant Class in the GPDO.

This confirms the view which I had originally expressed myself as to the effect of the legislation. Clearly, therefore, in the context of Part 6, Ex parte Palley can have no application.

Whilst I accept the logic of both the Keenan and Marshall judgments, I still have a niggling doubt at the back of my mind, which those two judgments do not entirely resolve. Both of these cases involved agricultural development under Part 6, and I fully accept Lindblom LJ’s views, quoted by Lang J in her judgment in Marshall, so far as Part 6 applications are concerned. However, the actual legislative wording of Part 3 does seem to imply that in the case of prior approval applications under that Part of the Second Schedule to the GPDO, the LPA when deciding a prior approval application under the terms of Part 3 is empowered, either expressly or impliedly, to decide whether or not the proposed development comes within the description of the relevant Class in Part 3.

In relation to Part 3, paragraph W. –(1) provides that the following provisions apply where under this Part a developer is required to make an application to a local planning authority for a determination as to whether the prior approval of the authority will be required. Under paragraph W. -(3), the LPA may refuse a prior approval 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 this Part as being applicable to the development in question.

I think I would have to concede that paragraph W. –(3) empowers the LPA only to refuse the prior approval application if the development does not qualify as PD but, arguably, this might reasonably be taken to imply that if the LPA either grants its prior approval or determines that its prior approval of the specified matters is not required, then the authority may be taken to have accepted that the development does qualify as PD, and in those circumstances Ex p Palley (as discussed in the earlier blog post to which I have drawn attention above) would come into play.

Ex p Palley was, of course, decided some years before the House of Lords’ decision in R v East Sussex CC ex p Reprotech (Pebsham) Ltd [2002] UKHL 8, in which it was held that the clear terms of the modern legislation (sections 191 and 192 of the 1990 Act in their currently amended form) provide the only means of confirming the lawfulness of an existing or proposed use or development. Such a determination cannot be construed from the outcome of other procedures, nor can a finding of lawfulness be made or implied informally. 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), rather than with an informal opinion or implied certificate as to the lawfulness of the proposed development in connection with which prior approval has been granted.

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 could reasonably be taken, for the reason advanced above, to involve a determination by the LPA that the restrictions, limitations and conditions applicable to that Class of PD in Part 3 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 may become relevant where prior approval has been given under Part 3, because the determination by the LPA is arguably a judgment by them (in accordance with paragraph W. –(3)) 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 may be taken to have considered and determined whether the development does in fact qualify as PD, this issue is not merely “a matter of precedent fact".

I cannot guarantee that this argument would necessarily be accepted if it were to come before the High Court or the Court of Appeal, but in view of the fact that this argument rests on a legislative provision in Part 3 (which is absent from Part 6), rather than relying on a reference to ministerial practice guidance, as was the case in Keenan, it would appear that a Part 3 case might well be distinguishable from the judgments in Keenan and in Marshall (concerned as they were with the differently worded provisions of Part 6). I suspect we shall just have to sit back and wait for someone to take a punt on this point.

© MARTIN H GOODALL

12 comments:

  1. Hi Martin

    Thanks for your post. I was a little confused as a layman, but this is how I see it works,

    1.Once the applicant has applied the LPA needs to consult and consider if the proposal meets with the description in Q (or other part 3 class). If not the LPA refuses to determine the application as it does not benefit from the P.D right. If so then;

    2. The LPA then considers if the proposal is permitted development taking into consideration the criterion in Q.1. If the proposal is not permitted development, then unlike part 6 the LPA can 'refuse' the application, as allowed by W. If the proposal is permitted development, then the LPA may either confirm prior approval is not required, or if they have concerns regarding the criterion in Q.2, the LPA must then request prior approval;

    I think what you are saying is the LPA cannot refuse an application here, however, PIN's accept appeals at this stage whereas they do not for part 6, and arguably the P.D criterion in Q.1 are 'limitations or restrictions' as set out in W.

    3. Once prior approval is requested, an extension of time can be agreed. If this is not done the proposal is bound by the 56 days on the prior approval considerations only (which by this stage will be much less than 56 days). As prior approval is a 'condition' paragraph W allows the LPA to refuse prior approval, unlike in part 6.

    A big issue is most LPA's do not separate the prior approval procedure from considering if the scheme is P.D, or refuse applications for prior approval criterion without requesting prior approval. I do not think it is possible however to compare part 6 and part 3 very easily, as the procedure if quite different (the LPA cannot refuse part 6 notifications)

    Anyway, thanks for the update, and I look forward to when we get clarification

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  2. There has always been a conundrum for LPAs as to how to react to GPDO notifications which appear on their face to be outside of the description or limitations of the deemed planning permission in question.

    Some LPA's have historically refused details, and then argued at appeal that the notification and the appeal are void. Others have simply invalidated the notification/prior approval application - and if they have any sense - accompanied this with a clear letter/notice recording their informal view that the proposal requires express permission. I've once dealt with an enforcement appeal against a refusal of details (under Part 6)where everyone had overlooked the existence of a 19060's Article 4 Direction about poultry buildings that still had effect - but I digress.

    My feeling is, that against this background, 30+ years of not having any clear process for determining notifications for things that are not PD, CLG have simply drafted W.-(3) intending to direct LPAs to refuse, almost as a point of practice guidance.

    But as you say, (to paraphrase) the clause appears within the statute, so it logically must have some statutory effect, albeit perhaps only to directly empower a refusal. So a refusal would be a formal determination of lawfulness, but perhaps not an approval. I'd be comfortable with that personally. It feels analogous to the enforcement situation where an LPA with an opinion that something is not a breach is not formally determining that it is lawful.

    Personally I doubt that a development that (on its face) was outside the deemed permission could become lawful by dint of an LPA's failure to refuse under W.-(3) BUT there could be some interesting legitimate expectation arguments if an LPA has opted not to refuse THEN later takes the view that the proposal could not ever have been PD.

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  3. Martin
    This is interesting as an LPA that i deal with a lot [and who for the present time shall remain nameless] have granted a number of Class Q prior approvals where they are now trying to say that they are not capable of implementation due to the extent of works necessary, despite the fact that their prior approval has granted those works....
    Steve

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  4. Due to its length, I shall have to split this comment in two.

    First, just a minor clarification in response to Hans Gruber’s comment. In relation to point (1), if the LPA concludes that the proposed development does not comply with the restrictions, limitations or conditions of the relevant Class (including the qualifying criteria for permitted development under that Class), they might simply decline to determine the application, but this would be a risky strategy, because there is a possibility that they could objectively be wrong about that, in which case the 56-day rule would operate. A better course would be to refuse the application in accordance with paragraph W. –(3); whereupon paragraph W. –(4) makes it clear that for the purposes of section 78 (appeals) of the Act such a refusal is to be treated as a refusal of an application for approval.

    I agree with Hans Gruber, though, that it would be good practice to treat this as a two-stage process, especially since, upon a refusal under paragraph W. –(3), paragraph W. –(4) exempts the LPA from the requirement to carry out consultations under paragraphs W. – (5) to (8) and (10).

    Leaving aside a refusal under paragraph W. –(3), the LPA has three choices – (a) refuse prior approval in respect of any of the matters specified in the relevant Class, (b) determine that their prior approval of those matters will not be required, or (c) give their prior approval in respect of those matters. The question posed in my blog post above is whether, in determining that their prior approval will not be required, or in giving their prior approval, the LPA is in effect reaching a conclusion on the compliance of the proposed development with the applicable restrictions, limitations and conditions (on the basis that by not refusing the application under paragraph W. –(3) the LPA might thereby be said implicitly to have accepted that the proposed development does comply with the relevant restrictions, limitations and conditions), so that the [apparent] rule in Ex p. Palley would come into operation.

    As Hans Gruber observes, once a prior approval has been received, an extension of time can be agreed, but I don’t think the scope of the LPA’s consideration of the matter is in any way confined or constrained, even where time has been extended by agreement. The LPA could still refuse the application at this stage (within the 56-day or extended period) under paragraph W. –(3), rather than by reference to the specific matters for which prior approval was sought.

    It is, however, correct to point out that the procedure is quite different for Part 3, compared with Part 6. Under Part 6, there is no provision equivalent to W. –(3) in Part 3, and so the LPA must decide either that their prior approval to siting and/or design will be required, or that it won’t. It is common practice for LPAs, having determined that prior approval is required, also to refuse it at the same time, on the basis of the information already supplied, although this practice may perhaps be questionable. There is, however, nothing to stop the LPA from citing non-compliance with the qualifying criteria as a (or even the main or only) reason for refusing prior approval of siting and design at the same time as their determination that it is required. This may be a safer way of proceeding than the alternative of declining to determine the prior approval application on the ground that it doesn’t qualify as PD in any event, and thereby risking the operation of the 28-day rule if they then turn out to have been wrong in asserting that the proposed development is not in fact PD.

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  5. To continue, I think that what I have written in the comment above also answers Richard W’s point, in that it suggests a safer way forward (both in Part 3 and Part 6 cases) than some of the practices that Richard W mentions.

    Turning to Steve Jupp’s point, whilst I cannot rule out the possibility that Inspectors, and the courts, might prefer in Part 3 appeals to follow Keenan and Marshall , rather than Ex p. Palley (which could conceivably be defeated by Reprotech, notwithstanding my views to the contrary), I think that LPAs are on particularly dodgy ground in retrospectively seeking to argue that the building is not in fact convertible, on the basis of the Hibbitt judgment. It may well be one of these ‘structural’ or convertibility cases that would offer the best chance of distinguishing Part 3 cases from Keenan and Marshall (and Part 6) and establishing that an LPA can’t resile from its position in granting prior approval under Class Q.

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    Replies
    1. Say a hypothetical Prior Approval was issued on the assumption a barn was convertible (as per NPPG 105) to a dwelling, with minimal need for demolition and rebuilding works aside from new openings etc identified on the agreed plans. But when work commences well over 50% of the barn is subsequently demolished as it considered to be unstable by builders?

      Whilst Prior Approval has been issued by the LPA, this was without knowledge of the required demolition and extensive rebuilding work. Such works may then be subsequently viewed as amounting to a rebuild and not a conversion, and ultimately therefore not PD to begin with, despite PA being given.

      Are LPA's able to insist on structural survey's, particularly when minimal rebuilding work is proposed? Such a scenario could end up with retrospective arguments the building is not convertible if insufficient information has been provided at the outset.

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  6. Hi,
    Keenan and Marshall concern Part 6, but has anyone any experience of problems with Part 1 (domestic extensions)?
    Long story short; 2 years ago I applied on behalf of a client for a 6m extension on the rear of a 1930s semi, which had a small scullery on the rear. The LPA accepted the application, no objections were received, and the LPA advised that the work could go ahead. Innocently, I did not allude to the fact that there was an existing lean-to scullery which was to be demolished.

    Fast forward to now, a neighbour 2 doors down in an identical house wanted an identical extension. I submitted a similar notification, but the council refused to accept it on the basis it was not P.D. (because of the side wall of the small extension).

    I reminded them that they approved an identical notification 2 years ago; they are now saying that is null and void because I gave them insufficient information to assess whether it was in fact PD, and will be taking action against the client.

    When quized on this, they replied that they are 'now taking a more stringent view of these applications to check that they are PD'
    My understanding is that under A(3) of Part 1, the LPA should have satisfied itself that it was in fact PD at the time; tightening up their procedures now seems unfair on my first client, who will undoubtedly face enforcement.
    Am I on shaky ground? .

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  7. I would answer the anonymous query of 26 April, by reference to the well-established position in relation to planning permissions for barn conversions.

    I discussed this issue in the blog at great length, and the final word would appear to have been the decision of the Court of Appeal in Williams, which I reported on Monday, 1 December 2014 (“Barn Conversions again (Part 6)”).

    The fact that prior approval was given to those matters that required it is irrelevant in these circumstances. The GPDO grants planning permission for the residential conversion, and for limited building operations for the purpose of that conversion. If, in practice, the works then go substantially outside the scope of that planning permission, then it isn’t PD. It’s as simple as that.

    As discussed in the blog post above, the LPA may reasonably be expected to satisfy themselves that the proposed development complies with the restrictions, limitations and conditions applying to the relevant Class in Part 3 (in this case Class Q), and it is not unreasonable for the LPA to seek to satisfy itself that the building can practicably be converted as proposed, and this may give rise to the need for a structural survey, which quite a few applicants take the precaution of providing when making their prior approval application.

    Where, in the absence of a structural survey, the LPA cannot be satisfied that the proposed conversion can in fact be carried out within the restrictions, limitations and conditions of Class Q, they may reject the application under paragraph W(3). However, even if the LPA does accept (whether or the basis of a structural survey or otherwise) that the proposed development can be carried out within those parameters, and grants prior approval of the matters requiring its specific consideration, this will not save a development which turns out to require such extensive works as to take outside the scope of the planning commission granted by Article 3(1) and Class Q.

    In summary, therefore, it was not my intention in the blog post above to suggest that prior approval gives the developer carte blanche to carry out the development in a way that takes it outside the scope of PD altogether. But, as I hope I have made clear, this particular scenario does not involve having to ‘go behind’ the prior approval; it is simply a matter (as in all the old barn conversion cases) of deciding whether this really is a conversion, as opposed to substantial demolition followed by the construction of what amounts to a new building.

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  8. Hi
    I recently submitted a prior determination for permitted development agricultural road, and on the last day of the 28 i received a notice which cited that they were not convinced of an agricultural purpose, and had concerns over the citing and lack of cross section diagram showing means of construction.
    The notice just said REFUSED
    however looking at this blog refused, is not a valid response for class 6. I am now considering weather failure to give a correct response within the 28 days is the same as giving no response within the 28 days giving me license to continue, on my own head that it is permitted development of cause.
    what are your views

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  9. In answer to the anonymous query today, the notice may not have been as elegantly worded as perhaps it could have been, but it does seem to be clear that the council considered the application, and decided that their prior approval would be required but was refused, in this case because they were not convinced of the agricultural need for this development. It is not uncommon for one and the same decision notice to sayboth that prior approval of the siting and design is required and that it is refused.

    The notice of this determination does seem to have been made within the 28-day period, and so the remedy for the applicant is either to submit a fresh application with clear evidence of the agricultural justification for the proposal or, alternatively, to appeal to the Planning Inspectorate against the council’s refusal, but here again the appellant will be expected to demonstrate that there is a genuine agricultural need for the development.

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  10. Hi Martin,

    Many thanks for the above article.

    While reviewing the GPDO 2015, I have come across provisions for other classes of PD which contain the same relevant wording as paragraph W(3) of Part 3, namely:

    "The local planning authority may refuse an application where, in the opinion of the authority the proposed development does not comply with (...) any conditions, limitations or restrictions specified in this Part".

    The other PD classes I have found to include the above wording are:

    Part 1, Class A - enlargement, improvement or other alteration of a dwellinghouse
    Part 4, Class E - temporary use of buildings or land for film-making purposes
    Part 7, Class C - click and collect facilities
    Part 14, Class J - installation or alteration etc of solar equipment on non-domestic premises

    Is it safe to assume that Ex p. Palley would apply to applications for prior approval under those other classes as well? I am a little unsure as to what principles would apply to applications for prior approval which do not fall under either Part 3 or Part 6.

    Many thanks in advance for your help.

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  11. As I have made clear in the course of discussion, I cannot go so far as to say that it is "safe to assume that Ex p. Palley would apply to applications for prior approval" even in Part 3 cases. It will depend on the view the courts may take on this case in the future in light of the other judgments that have been delivered in the meantime.

    However, I agree that if Ex p. Palley can properly be applied in Part 3 cases, then it should in principle be equally applicable to prior approvals under the other Parts that my anonymous correspondent has listed.

    On the other hand, for the reasons previously discussed, Ex p. Palley would clearly not apply in a Part 6 case, due to the different legislative wording in Part 6.

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