Friday, 2 August 2019

Prior approval applications – extending time for determination


THE JUDGMENT SUMMARISED BELOW HAS EFFECTIVELY BEEN OVER-RULED. See my blog post of 5 February 2020 - "Extending then 56-day period by agreement"

There was no provision in the 1995 version of the GPDO for any extension of time in respect of the determination of a prior approval application. However, Article 7 of the 2015 Order appeared to allow the LPA to make a decision in relation to the application within such longer period as may be agreed by the applicant and the authority in writing.

What Article 7 actually says is that where a prior approval application has been made (under any Class in Schedule 2) the decision in relation to the application must be made by the authority –

“(a) within the period specified in the relevant provision of Schedule 2,

(b) where no period is specified, within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or

(c) within such longer period as may be agreed by the applicant and the authority in writing.”

Like most other people, I regarded the last of these options as an alternative to either of the other two. However, in R (Warren Farm (Wokingham) Ltd v Wokingham Borough Council [2019] EWHC 2007 (Admin), the applicant claimed that sub-paragraph (c) is an alternative only to sub-paragraph (b), rather than being an alternative to both paragraphs (a) and (b). Their argument, therefore, was that the option of agreeing a longer determination period only applies if no period is specified in the relevant provision of Schedule 2. In the case of Part 3, a period of 56 days is specified by paragraph W(11). This takes the form of a provision that the development must not begin before the receipt by the applicant from the LPA of a written notice of their determination that prior approval is not required, or of a written notice giving their prior approval. Failing this, paragraph W(11)(c) allows the commencement of development after the expiry of 56 days following the date on which the prior approval application was received by the LPA without the authority notifying the applicant as to whether prior approval is given or refused. It follows from this, the applicant argued, that an extension of time is not permissible in respect of prior approval applications under Part 3.

This case concerned a prior approval application relating to the residential conversion of an agricultural building under Class Q. The chronology was as follows: The prior approval application was sent to the LPA on 12 November 2018, and was received by them on 15 November. The 56-day period in this case was therefore due to expire on 10 January 2019. On 8 January the LPA asked the applicant for an extension of time. The applicant queried whether there was power to agree an extension of time, but the LPA drew attention to Article 7, and the applicant reluctantly agreed an extension to 31 January. On 30 January the LPA then refused the application. However, the applicant then claimed that there had been no power to extend time, so that the LPA’s decision was out of time, and they were therefore entitled to proceed with the development.

Clearer drafting of Article 7 might have avoided any dispute of this sort arising although, in fairness to the draftsman, the applicant’s argument in this case is one that has never previously been taken since Article 7 was introduced as part of the revised GPDO in 2015.

In the event, the court was persuaded by the applicant’s argument and therefore quashed the LPA’s decision on the basis that it was made without jurisdiction. The deemed grant of planning permission under Article 3(1) and Part 3, Class Q of the Second Schedule had taken place nearly three weeks earlier, on 10 January 2019.

I confess that I really don’t understand the basis of the judge’s decision in this case, especially bearing in mind the advice in Bennion on Statutory Interpretation, which states as a general rule at section 258 that: “Where a provision consists of several numbered paragraphs with the word “or” before the last paragraph only, that word is taken to be implied before the previous paragraphs after the first.” [so that in this case, Article 7 should be read as referring to “(a) or (b) or (c)”]. The judge nevertheless convinced himself that this was not determinative of the point at issue, preferring instead to interpret the judgment in Phillips v Price [1957] 1 Ch 181 as supporting the proposition that the precise statutory provision must be interpreted in its specific context.

I really don’t understand the reasoning which led the judge to conclude that the approach described in Bennion did not apply in this case, so that the applicant’s case succeeded. I am not in a position to assert that the judge was ‘wrong’, but it seems to me that if this case were to come before the Court of Appeal it could conceivably lead to a different result. I don’t know whether or not permission to appeal to the Court of Appeal has been sought or granted, but I would not be at all surprised if this case were to be taken further by the LPA.

One point which the judge made at the end of his judgment is nevertheless worth emphasising. This judgment did not confirm that the applicant could proceed with his development, and the court specifically declined to make a declaration, because the planning permission granted by Article 3(1) and Class Q in Part 3 extends only to development that actually falls within the provisions of that Class. The LPA’s purported refusal was made on the ground that the developer had provided insufficient information to enable the authority to establish whether the proposed development complied with the conditions, limitations and restrictions specified as being applicable to the development in question. So, even though the LPA’s decision has been quashed, it remains an open question as to whether the proposed development can lawfully be carried out.

© MARTIN H GOODALL

8 comments:

  1. Does this ruling mean that a recently refused post-56-day application, where the LPA requested an extension of time and the Applicant agreed, can potentially now benefit from deemed approval and that the development might now be permitted (provided it is lawful)?

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    1. It seems that this may well be the case, although I am sure it is not what was intended by Article 7. If the Warren Farm case does not go to the Court of Appeal, then I suggest that MHCLG may have to give some fairly urgent consideration to revising Article 7, in order to remove the apparent ambiguity that led to what is surely an anomalous situation.

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    2. I think one could argue from Lambeth et al that no matter any question as to the LPA's power to refuse details post 56 days, a decision once issued (and if left unchallenged) will tend to have effect as if it was lawful in the first place.

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    3. I don’t think that Lambeth is of any help here, as it was specifically directed to the effect of a section 73 application on existing conditions in a previous permission.

      Similarly, the Warren Farm case is focused solely on the extension of the 56-day decision period under Article 7, and came to the rather surprising conclusion that no power to extend time exists in the case of prior approval applications under Part 3.

      It follows from that judgment that a purported determination by the LPA of the prior approval application outside the 56-day period is of no legal effect, even if the determination is made within an extended period that has been agreed by both parties. (I must confess that I find this bizarre.) So no reliance can be placed on any aspect of the LPA’s purported decision, no matter whether that decision was that the prior approval of the LPA would not be required, or that their prior approval of the matters in question was granted, or that the application was refused. Such a determination has no legal effect whatsoever in these circumstances.

      As the court made clear, and as I have repeatedly pointed out myself, this does not automatically give the applicant the right to proceed with their proposed development in default of a decision having been made within the 56-day period. Such development can be lawfully carried out only if it qualifies in all respects as PD within the Class concerned, and complies with all the relevant restrictions, limitations and conditions in the GPDO. The prior approval application itself must also have complied in all respects with the requirements as to the information to be provided, payment of the correct fee, etc., etc.

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  2. Where I see a parallel with Lambeth is in this passage:

    32. One problem with this argument is that it goes too far for the respondents’ case. If section 73 gave no power to grant a permission in the form described, the logical consequence would be that there was no valid grant at all, not that there was a valid grant free from the proposed condition. The validity of the grant might perhaps have been subject to a timely challenge by an interested third party or even the Council itself. That not having been done, there is no issue now as to the validity of the grant as such. All parties are agreed that there was a valid permission for something. That being the common position before the court, the document must be taken as it is.

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    1. Noted. But I still don’t accept that it has any application in the context of prior approval applications under the various parts of Schedule 2 to the GPDO.

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  3. On the same basis as the first comment above, I have written to an LPA advising them that their recent (late) notification of refusal is invalid and that the development benefits from deemed approval commencing from the 56 day date, and asking for their confirmation. Having received no response, I presume that I can now unilaterally claim deemed approval and proceed? NB the LPA's reason for refusal raised no issue regarding the lawfulness of the development.

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    1. I have stressed before that it is risky to assume that permitted development can lawfully proceed simply because the 56-day determination deadline has been missed by the LPA. One needs to be sure that the proposed development really does qualify as PD (i.e. that it complies in all respects with the restrictions, limitations and conditions that apply to this Class of development).

      The prudent course would be to apply for a Lawful Development Certificate. An appeal against the purported refusal of prior approval would be an alternative, on the ground that the proposed development is now lawful under the 56-day rule. None of the matters that required prior approval could be raised by the LPA in that appeal, but the inspector would be able to rule on the compliance of the proposed development with the applicable restrictions, limitations and conditions which determine whether it comes within the scope of permitted development under this Class or not.

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