Tuesday, 12 June 2018

Unless otherwise agreed


Paragraph W (12) in Part 3 of the Second Schedule to the GPDO provides that the development permitted under Part 3 must be carried out in accordance with the details approved by the LPA. Where prior approval is not required (or where the 56-day period has expired without the applicant having been notified of the LPA’s determination of the prior approval application) the development must be carried out in accordance with the details provided in the prior approval application. In both cases, the requirement for the development to comply with these details applies “unless the local planning authority and the developer agree otherwise in writing”.

The question has arisen as to what formalities, if any, are required in order to obtain the LPA’s agreement to any variation. The reference to such agreement simply being “in writing” seems to me to indicate that a formal application, such as a fresh prior approval application or a planning application (for example under section 73) is not required. However, some LPAs seem to have taken a different view.

My own view is reinforced by a parallel provision in Part 16 (relating to telecoms development). Paragraph A.3(8) in Part 16 provides that the development must, except to the extent that the local planning authority otherwise agree in writing, be carried out in accordance with the details approved in the prior approval, and in any other case, in accordance with the details submitted with the application. Paragraph A.3(9) then goes on to explain that “The agreement in writing referred to in sub-paragraph (8) requires no special form of writing, and in particular there is no requirement on the developer to submit a new application for prior approval in the case of minor amendments to the details submitted with the application for prior approval”.

Now, I appreciate that Inspectors have resisted attempts to import the provisions of one Part of the Second Schedule into another Part by analogy, but if no formality is required in seeking agreement to minor variations under Part 16, then I see no reason why any formality should be required in seeking similar agreement under Part 3.

If the GPDO had been properly drafted, the wording I have quoted from paragraph A.3(9) in Part 16 should also have appeared in paragraph W(12) in Part 3, and this is not the only example of a failure to ensure uniformity in the provisions in different Parts of the Second Schedule to the GPDO. The opportunity should be taken to correct such anomalies in the drafting of the Order. In the meantime, it is to be hoped that common sense will prevail, and that LPAs will not be difficult about accepting informal requests for the variation of approved or submitted details. The only requirement is that the actual agreement between the LPA and the developer should be “in writing”.

© MARTIN H GOODALL

10 comments:

  1. Spooky! Your blog arrived in my inbox on the same day as I had a question from a developer asking how to rectify a situation where they have implemented a Prior Approval application for flats but with a change to the mix between studios and 1 bed flats (but with the same overall number of flats).

    It would seem than they cannot do a new Prior Approval application for the change and we don't believe that it would be possible to do a Non-Material Minor Amendment for a Prior Approval 'permission'. Therefore, am I right in thinking that an exchange of letters would meet the "agree otherwise in writing" test?

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  2. Worth noting that the provision from part 3, section W (12)
    "...unless the local planning authority and the developer agree otherwise in writing"
    also appears identically in:
    part 1, Class A.4 (11)
    part 4, Class E.3 (12)
    part 7, Class C.2 (9)
    part 14, Class J.4 (10)

    And searching the page for the phrase 'in writing' reveals other very similar provisions which suggest the same mechanism e.g.
    Part 6, section A, 2.2 (v)
    "...except to the extent that the local planning authority otherwise agree in writing..."
    Part 6, Class A.2.2.d.v
    "...except to the extent that the local planning authority otherwise agree in writing..."
    Part 6, Class A.2.5
    "...unless the local planning authority have otherwise agreed in writing"
    Part 6, section B.5.4 (a)
    "...unless the local planning authority have otherwise agreed in writing"
    Part 6, Class E
    "... except to the extent that the local planning authority otherwise agree in writing..."
    Part 9, class D.2.d
    "... except to the extent that the local planning authority otherwise agree in writing,.."
    Part 11, class B.2 (vii)
    etc etc
    You get the idea.

    Overall there are 61 instances of 'in writing' in schedule 2 most of which suggest some kind of flexible mechanism for agreeing things between two parties.

    Given the frequency of this mechanism in the legislation, I would naively assume this is intended as a relatively common way of addressing matters with an LPA in a quick & simple manner? And that Martin's conclusion should apply in each case? If someone is correcting the GDPO, it would be nice for a consistent phrase for this mechanism, and then a reference to a single clear definition - as is currently given in Part 16 A.3(8).

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  3. Hi Martin

    I'd agree that LPAs are empowered to agreed changes without formal process (so long as this is in writing and the author has ostensible authority etc) BUT I don't think that means an LPA can be compelled to take this route. Isn't 'agreement in writing' by necessary implication at the discretion of the LPA as to the form of this agreement? If so, then an LPA that claims it cannot agree by letter as a matter of law is wrong; but an LPA that declines to agree by letter as a matter of policy is probably entitled to do so.

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  4. Thanks Martin,

    A few authorities I've worked with who I'd definitely point in the direction of this post, a couple of which have only accepted Prior Approval changes as non-material amendments.

    Not certain that's an appropriate mechanism at all, but I accept the non-material amendment decision as being written approval to detail changes!

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  5. I am sorry that posting of these comments has been delayed by a glitch in the system.

    In answer to Si (13 June), I can’t be sure about this. In any event, it will depend entirely on whether the LPA is in fact prepared to agree.

    I am undecided as to whether points of this nature can be retrospectively agreed. This would seem to be a grey area.

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  6. Hi Martin,

    The way W. (12) is worded, it appears to me that the 'unless otherwise agreed' clause only applies to applications where prior approval has not been sought.

    Regards

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  7. The words “unless the local planning authority and the developer agree otherwise in writing” clearly apply to both (a) and (b), i.e. to a case in which prior approval was granted as well as a case where the 56-day rue has operated in default of a determination of the prior approval application having been notified by the LPA.

    In the first case, the development must be carried out in accordance with the details approved by the LPA, and in the second case the development must be carried out in accordance with the details provided in the prior approval application. In both cases, this is subject to the possibility of the LPA and the developer agreeing otherwise in writing.

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  8. Hi Martin,

    Q approval has been given, and a request to add additional first floor space, provide additional stone cladding, rooflights, solar panels (extending beyond roof plane), new and revised windows comes in. The changes are cumulatively fairly substantial and require a full assessment on compliance with Q. Is it reasonable to reject the request and encourage a further Q application?

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  9. My gut feeling in response to my anonymous correspondent of today’s date is that what is now proposed is too far outside the scope of Class Q to come within the provision regarding agreed variations from the scheme that has been given prior approval.

    I would suggest that the works now proposed require a separate planning permission, but the Class Q prior approval still stands (assuming the time limit for making the change of use has not run out), and so it seems to me that this may well represent a realistic fall-back position, so that the new application need not address the principle of residential development in the countryside, but should be dealt with purely as an application for the additional building operations that are now proposed.

    Whether the scale and appearance of these would be acceptable in planning terms must be a matter of planning judgement, and all the usual material considerations, including the adopted Development Plan and the NPPF will come into play, but only in relation to the building operations themselves and the size of the resulting enlargement of the building, and not in relation to the establishment of a new dwelling in the countryside (which already has planning permission under the GPDO).

    It is not unusual for planning permission to be sought for additional building work on the back of PD rights under Part 3, and the High Court made it clear in Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314 that a prior approval application is not a necessary prerequisite for establishing that this PD right is capable of representing a fall-back position.

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    Replies
    1. Hi Martin - many thanks for your reply.

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