Wednesday, 5 February 2020

Extending the 56-day period by agreement


As I briefly reported in my post of 3 Feb, the High Court (Holgate J), in a judgment handed down on 31 January in Gluck v SSHCLG [2020] EWHC 161 (Admin), has reversed the effect of last year’s judgment in R (Warren Farm (Wokingham) Limited v Wokingham BC [2019] EWHC 2007 (Admin), which had determined that Article 7 of the GPDO did not (as had been universally assumed) enable the 56-day period for the determination of a prior approval application relating to permitted development under any Class in Schedule 2 to the GPDO to be extended by agreement between the applicant and the LPA. Holgate J ruled that the decision in Warren Farm should not be followed.

The subject matter of the Gluck case was the proposed residential conversion by the Claimant of two office buildings under Class O of Part 3. There was correspondence between the claimant and the LPA before the 56-period for determination had expired, indicating the claimant’s willingness to agree an extension of time for the determination of the prior approval application beyond the end of the 56-day period. (The claimant later denied that a specific extension of time had in fact been agreed in writing by the LPA, a contention that was rejected both in his appeal against the LPA’s refusal of prior approval, and by Holgate J in the instant case. We will come back to this point briefly later.)

The Warren Farm case had not been decided in the High Court by the time that the appeal decision that Mr Gluck sought to challenge was decided, but it was a major plank in his case in the High Court. He sought to rely on the decision of Mr Mark Ockelton (sitting as a Deputy High Court judge) in Warren Farm that a time period specified in Schedule 2 of the GPDO 2015 for a determination by the authority as to whether its prior approval is required in a particular case was incapable of being extended, so that once it had expired without a decision being made the applicant could proceed with the development described in their application (in so far as it complied with the terms of the Order).

However, the Secretary of State submitted that that decision was incorrect and should not be followed; so that the provision in the Article 7 of GPDO for agreeing an extension of time periods applies to all prior approval procedures. It is a well-known principle that the High Court is bound to follow its own previous decisions, but the Court is not in fact bound to take that course if the judge in a later case is satisfied that there is a powerful justification for not doing so (see Willers v Joyce (No.2) [2018] AC 843 at [9]). For the reasons set out in detail in his judgment, Holgate J therefore declined to follow the judgment in Warren Farm. In that earlier case, the deputy judge stated that he had not been referred to any prior approval procedure in the GPDO 2015 to which the provision for extending time could be applied if his construction of the legislation was correct. By contrast, in the present case there was extensive discussion of this issue.

As in Warren Farm, the Claimant referred to the three alternative time limits under Article 7 for a prior approval to be determined by an LPA, namely -

(a) within any period specified in Schedule 2,
(b) where no period is so specified, within 8 weeks beginning with the day immediately following the receipt of the application by the LPA; or
(c) within such longer period as may be agreed by the applicant and the LPA in writing,

and argued that (c) is an alternative to (b), but not to (a). Therefore, he argued, a period specified in Schedule 2 is incapable of being extended (whether by agreement or otherwise). It is only where a period is not specified in Schedule 2, and the default position in (b) is engaged, that the ability to extend time by agreement under (c) applies.

The way the Secretary of State put it was that the Claimant’s construction conflicted with the purpose of including option (c) in Article 7. That provision recognises that prior approval applications of all kinds will sometimes involve technical issues requiring detailed assessment and consultation with other authorities. That may apply, for example, to the amenities of the future occupants of the residential development to be carried out under Class O. The same time period specified in Schedule 2 provisions such as paragraph W(11)(c) applies both to the LPA’s decision as to whether prior approval is required and, if so, whether it should be granted. These provisions involve a single time period for decision-making. Insufficient information may have been submitted with the application to enable the LPA to decide whether prior approval should be granted (if required) within that period. In that respect the position is similar to that which may arise for permitted development rights which are subject to the grant of prior approval in all cases. A developer faced with the prospect of his application being refused, for example because of the inadequacy of the information he has supplied with the application, might well prefer to have the period for determination extended so as to avoid a refusal and the prospect of having to appeal to the Secretary of State. The flexibility which option (c) was designed to provide logically applies to cases falling within both paragraphs (a) and (b).

Holman J observe that Bennion on Statutory Interpretation states at section 16.6:–

“Where a single sentence is broken up into several paragraphs with the word ‘or’ or ‘and’ at the end of the penultimate paragraph, there is an implication that each of the preceding paragraphs is to be treated as if separated by the same conjunction.”

Phillips v Price [1959] Ch. 181 is an example of this principle being applied. It represents the natural way of reading the statute and layout of Article 7. By contrast, the Claimant’s argument would depend on reading paragraphs (a) and (b) as if they were separated by the word “and” instead of “or”.

The absence of a provision answering to paragraph (a) in Article 7 could mean that all “prior approval” cases in Schedule 2 fall within paragraph (b). It would then follow ineluctably that paragraph (c) would apply in all such cases, and an extension of the time period could be agreed. Furthermore, paragraph (a) would be otiose. The Claimant’s legal argument on the main issue would collapse. The procedural code for dealing with prior approval applications should not be construed so literally that it would produce unreasonable or unworkable results. The legislation does not require that approach to be taken.

Nor did Holgate J consider that the Claimant’s interpretation of the legislation could be supported by a purposive approach to the language used. Plainly the avoidance of delay in decision-making by LPAs is an important objective. But sound decision-making on matters of public interest is no less important. That needs to be based upon adequate information from an applicant and necessary consultation. Some of the issues involved may be of a highly technical nature. These considerations apply with just as much force to permitted development rights where the time period for decision-making falls within paragraph (a) of Article 7 as to those within paragraph (b). It may well be in the interests of an applicant to agree to extend the time period for determination to enable him to remedy a deficiency in the information he has supplied and/or to hold discussions with the LPA and consultees, so as to avoid a decision by the LPA that prior approval is both required and refused, and the consequential need to pursue an appeal, or to submit a fresh application, together with additional costs and delay. It would be undesirable to deny that option to developers seeking to rely upon permitted development rights falling within paragraph (a) of Article 7 unless the language of the GPDO 2015 compels that conclusion, particularly as the ability to extend time under paragraph (c), and the length of any extension, would be subject to the developer’s agreement.

Furthermore, the practical effect of treating time periods falling within paragraph (a) as incapable of extension would probably lead to more decisions by LPAs refusing applications (e.g. because the information provided in the time available for decision-making is inadequate) and more appeals to the Secretary of State. That would not be conducive to efficient decision-making or to encouraging acceptable forms of development to proceed without undue delay.

In his lordship’s judgment, the language of the GPDO 2015 does not require the Court to conclude that paragraph (c) is an alternative only to paragraph (b). The specification of a time period in Schedule 2 (such as 56 days) for a decision on whether prior approval is required, linked to a restriction on commencement of development, is not incompatible with the possibility of extending time under paragraph (c). Paragraph (b) lays down a finite period of 8 weeks for decision-making, but that is to be read together with, and subject to, any extension under paragraph (c). The language of paragraph (a) does not preclude an extension of time under paragraph (c) simply because the time period is specified in Schedule 2 rather than in Article 7. Nor is any such extension precluded because the time period is used to control when development may lawfully commence. A provision such as paragraph W in Part 3 of Schedule 2 is capable of being read together with Article 7. Permitted development rights granted under schedule 2 are expressly subject to other provisions of GPDO 2015 including Article 7 (Article 3(1)).

On a separate point, Holgate J also accepted the Secretary of State’s submission that if the legislature’s intention had been to treat time limits specified in Schedule 2 as operating independently, and to be incapable of extension by agreement, which would be the effect of the Claimant’s argument, then there would have been no need to include paragraph (a) or to refer to those time limits in Article 7 when the GPDO 2015 was enacted.

Holgate J therefore concluded that Article 7 must be read as if paragraph (c) is an alternative to both paragraphs (a) and (b). The consequence is that any of the prior approval time periods specified either in Schedule 2 or in Article 7 is capable of being extended by an agreement by the applicant and the LPA in writing. The decision in Warren Farm should not be followed.

An additional argument deployed by the Claimant was that an extension of time had not in fact been agreed by the LPA, and/or that such agreement had not been sufficiently evidence in writing. On the first point, Holgate J saw no error in the factual conclusion reached by the Inspector on this point in his appeal decision. As to whether the agreement was sufficiently evidenced in writing, he accepted that an email does qualify as being “in writing”, and no greater formality of communication is required. The Claimant’s argument therefore failed also on this point. I would simply observe that my own view has always been that an email does qualify as being “in writing”, but subject to the proviso that the email has actually been received by the addressee (i.e. that it has arrived in their In box, even if it was not opened or read). A request for an automatic delivery receipt added to the outgoing email is always advisable in such cases.

Holgate J’s judgment in Gluck is very welcome in restoring the understanding that most of us had as to the interpretation of Article 7, and confirming that a written agreement (if only by an exchange of emails) between the applicant and the LPA to extend time for the determination of a prior approval application is effective for that purpose in all cases. However, I did stress in paragraph 15.3 in both the First and Second Editions of A Practical Guide to Permitted Changes of Use that any agreement to an extension of time would have to be explicit and unequivocal; it cannot be assumed or implied, nor can it be construed from only one side of a purported exchange of correspondence. There would need to be some written evidence that both parties had agreed to extend time. A nil response from the applicant to the LPA’s request for more time would not prevent the expiry after 56 days of the time within which the LPA is required to determine the prior approval application and notify the applicant of that determination. Unfortunately, this passage does not appear in the Third Edition, having been removed shortly before publication in light of the Warren Farm judgment.

© MARTIN H GOODALL

3 comments:

  1. Thanks Martin

    It is good to see this corrected.
    And good to see an example of a wider issue, which is that even if the parties to an earlier case do not challenge a decision then (with careful consideration and due rigour) third parties can (and sometimes should) seek to challenge a seemingly settled point in new litigation. All too often we see 'curious' high court decisions which go unchallenged and which become 'gospel' almost by default.

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  2. Where does this leave anyone who challenged a "late" decision or even commenced works, post Warren Farm. Presumably the law as it was clarified on 31 January 2020 does not apply retrospectively?

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    1. I don’t think Warren Farm changed the law, even temporarily. It was simply a judge’s interpretation of the law, which turns out to have been wrong. So where time was extended by agreement, whether before or after Warren Farm, a refusal of prior approval outside the 56 days but within the extended period that had been agreed would be a valid determination of the application. An aggrieved applicant will therefore have to run a section 78 appeal against it if they want to go ahead with their proposed development. Just going ahead with it anyway in these circumstances would seem to me to be a breach of planning control. Whether the LPA decides to take enforcement action in such circumstances is a matter of discretion, provided they are satisfied that it is ‘expedient’ (under section 172) to do so. I have always cautioned applicants against taking a gung-ho approach in this sort of case. In this situation, an LDC application followed if necessary by a section 195 appeal is a safer option.

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