Friday, 5 October 2018

Defective prior approval applications

As those familiar with the GPDO are well aware, the rules laid down in those parts of the GPDO that require a prior approval application to be made are very clear as to the documents and other information that must accompany the prior approval application. These requirements, however, vary quite considerably as between one part of the Second Schedule and another.

If an LPA receives a prior approval application which is incomplete, or is not accompanied by all of the information that the GPDO itself requires the applicant to provide (together with any application fee that is payable), the application cannot be treated as a valid prior approval application. The LPA has two choices in such a situation. They can ask the applicant to supply the missing items (but the application will not be complete, and will not therefore become valid, and time will not begin to run under the relevant Part of the Second Schedule, until all of the missing items are received by the LPA). Alternatively, the LPA could simply treat the application as invalid and reject it, or take no action on it. The first of these two options would appear to me to be more user-friendly, and less risky in legal terms, but an example of the latter course being taken by the LPA, and being backed up both by the Planning Inspectorate and by the High Court was provided by the case of Maximus Networks Ltd v SSCLG [2018] EWHC 1933 (Admin), in which judgment was given on 25 July.

This was a case under Part 16 (relating to PD by telecoms code operators), involving no fewer than 367 prior approval applications in respect of public telephone boxes proposed in various London boroughs. The claim before the court related to 53 outstanding appeals in relation to these applications in Southwark and in Hammersmith & Fulham. I don’t propose to discuss the facts of the case in any detail, because they were specific to the requirements of Part 16, but the general principle that the case illustrates is of wider application. Before a prior approval application is made for such development under Part 16, the owner of the land must be notified by the applicant. [There is no such requirement in respect of changes of use proposed under Part 3, which requires only that the LPA itself should notify neighbours.] In the Maximus case, the landowner was the highway authority, which happened to be one and the same authority as the LPA. The developer failed to notify the highway authority of the proposals before submitting the prior approval application to the planning department.

Southwark had validated its applications, but Hammersmith & Fulham had not, because they did not accept that the applications were valid. When appeals against the non-determination of these applications reached PINS, the Inspectorate concluded that the applicant’s failure to give notice to the landowners rendered all of the applications invalid so that PINS therefore had no jurisdiction to determine these appeals and were unable to take any action on them.

Maximus nevertheless argued that PINS had a discretion to re-consider the validity of the applications and therefore to entertain these appeals. PINS, however, responded that section 327A of the 1990 Act [expressly forbidding the entertainment of an application that does not comply with a legislative requirement as to the form or manner in which the application must be made] prevented their consideration of these appeals. Furthermore, PINS pointed out, by virtue of section 79 of the 1990 Act, the fact that some LPAs may have accepted the applications as valid does not preclude the Secretary of State from making his own decisions as to the validity or otherwise of the applications, which can only be made following receipt of related appeals. It was this latter point (rather than section 327A) on which the Secretary of State primarily relied. Maximus nevertheless maintained their position that the Secretary of State had a discretion as to whether to consider the appeals, and had failed (or had failed properly) to exercise this discretion.

Having reviewed the relevant judicial authorities, Dove J concluded that (as the Secretary of State had claimed), by virtue of section 79 of the 1990 Act, the fact that some LPAs may have accepted the applications as valid does not preclude the Secretary of State from making his own decisions as to the validity or otherwise of the applications, which can only be made following receipt of related appeals. if it is appropriate to do so. Plainly, he observed, when exercising the discretion under section 79 the question of whether or not prejudice might arise from the failure to comply with the statutory requirements may very well be a factor in play. The extent and nature of the breach concerned will also be very likely to be a factor. Beyond that it is difficult to be prescriptive as to the considerations which may be material to the exercise of the discretion as it will inevitably be a fact sensitive exercise, varying in its considerations from case to case. It was against the background of that analysis that the submissions in this case fell to be evaluated.

It was on this basis that Dove J reached the conclusion that the contentions advanced by Maximus were without substance. It needed to be borne in mind that this was an administrative decision, and thus an overly forensic scrutiny of its terms would be inappropriate. He was unable to accept that PINS’ decision involved a complete negation of the exercise of discretion under section 79. The decision explained the view that had been formed that there had been a failure by the applicant to comply with the formal requirements in relation to notice under Part 16 , and in his judgment this was not evidence of PINS’ assuming that they only had power to conclude that there was no jurisdiction to entertain the appeals; it simply explained their justification for concluding, in applying section 79 of the 1990 Act, that the applications had not been valid and therefore the appeals should not be entertained. It was a concise analysis of the basis upon which PINS were declining to accept jurisdiction in respect of the appeals, rather than an assertion that PINS had no power at all to do anything other than refuse to accept the appeals.

The court also rejected Maximus’ second ground of challenge, that even if PINS had in reality recognised there was a discretion to be exercised under the legislative framework, this discretion was in fact exercised irrationally. The claimant’s submission that no prejudice could conceivably arise where the LPA and the landowner were one and the same organisation. In Dove J’s judgment, however, that contention depended upon a considerable over-simplification. Part of the claimant’s contention in this regard had been that that no prejudice had arisen from their failure to give notice to the highway authority as landowner, because it was one and the same authority as the LPA, and the knowledge of one department may reasonably be taken to be the corporate knowledge of the body as a whole. [Digressing for a moment, I have a vague recollection that there was judicial authority from at least 30 years ago that was precisely to this effect, but no reference seems to have been made to any such authority in the instant case.]

Dove J had no hesitation in dismissing this argument, on the basis that a local authority may have a variety of interests in terms of its functions, not all of which can be assumed to be represented by its functions as a local planning authority. He observed that a local authority as a land owner may have very different interests and concerns to take account of in exercising its powers to own and control land, and it cannot be assumed that when a planning application is made to an LPA that the planning department will automatically or of necessity consult the department concerned with protecting the authority’s interests as a land owner or automatically be aware of all matters of which that other department would wish to be made aware. [This does seem to me, however, to ignore the rather obvious point that the other department involved in the instant case was the highways department, who would almost certainly have been consulted on the prior approval application by the planning department in any event.]

Maximus did succeed on one point. One of the LPAs had refused to refund the application fees when the appeals had finally been rejected by PINS on the basis of their invalidity. Maximus relied on their right to a refund of the fees in these circumstances, by virtue of Reg 14(3) of Fees Regs. The court accepted this, and made a declaration confirming the applicant’s right to a full refund of the applications fees.

As explained above, I do have some reservations about this judgment in relation to the question of corporate knowledge of information received by one department of a local authority without express notice having been given to another department of the same authority (at least so far as this case was concerned), but the real importance of the case is to confirm the importance of complying with the legislative requirements applying to particular applications, whether for full planning permission or for prior approval in respect of permitted development under the GPDO. An LPA, and also PINS upon receipt of an appeal, would clearly be within its rights in declining jurisdiction to determine the application or the appeal in these circumstances. It is notable, however, that the Secretary of State did not rely on the mandatory requirement in section 327A, but based their defence instead on section 79 and their exercise of their judgement as to the validity of the appeals in accordance with that section.