Plans and drawings accompanying a prior approval application

A correspondent recently raised with me an issue regarding a prior approval application which an LPA had refused to accept as a valid application, on the ground that the plan accompanying the application was not drawn to an identified scale. The question was whether the LPA was correct in this, or whether the 56-day period would run in any event, so that the LPA’s failure to process and determine the application would lead to an automatic right to go ahead with the development after the expiry of the 56-day period, failing the LPA’s determination of the application having been notified to the applicant. An alternative scenario is that the LPA does issue a decision rejecting the application on this ground. How would an appeal against such a decision fare?

So far as plans are concerned, in Part 3, paragraph W(2) simply requires that the application must be accompanied by a plan indicating the site and showing the proposed development. Similar provisions are found in other Parts of the Second Schedule to the GPDO (for example, in Part 1, paragraph A.4(2)(b)) There is no requirement that the plan should be to any particular scale, or that it should be a scale plan at all. It may be inferred that the plan should be adequate to identify the site and to show the proposed development with a sufficient degree of precision to enable the plan to be understood, but there is no specific requirement in the GPDO that lays down any particular standard for plan drawing.

The decision of the Court of Appeal in Murrell v SSCLG [2010] EWCA Civ 1367 established that the validity of a prior approval application does not depend upon the LPA accepting it as a valid application. Whether there is a valid application or not is an objective question of law. Thus, the running of time is not dependent on the application being ‘validated’ by the LPA. The appellant’s application in Murrell complied with the requirements of the GPDO and was a valid application, contrary to the LPA’s assertion. Consequently, the PD right claimed by the appellant came into effect upon the expiry of the determination period (calculated from the day following receipt of the application by the LPA). As noted above, the GPDO does not require that the plan indicating the site and showing the proposed development must be drawn to any particular scale. Even a plan marked “Not to Scale” and/or “Do not scale from this plan” would be perfectly adequate to comply with the requirement in the GPDO for “a plan indicating the site and showing the proposed development”.

But what of a refusal of prior approval by the LPA (or a dismissal of the application under paragraph W(3))? The answer to this question is provided by a recent planning appeal [3226314] in Greenwich LBC relating to a prior approval application under Part 1. The Inspector pointed out that Class A paragraph A.4(2) requires the developer to notify the Council with certain information about the proposal, before development commences. The Council stated that the extension drawn on the submitted block plan measured 4.78m and was therefore inconsistent with the written description of 5m. However, paragraph A.4(2)(b) does not require the plan to be drawn to any scale. The plan needs only to indicate the site and show where the proposed extension is to be located. The actual dimensions of the proposed extension are required to be stated in writing under A.4(2)(a), which the appellant did. The appellant also submitted detailed drawings, which clearly indicated that the extension would project 5m. Thus, precise accuracy of the delineation of the extension on the submitted block plan was not critical. Accordingly, the Inspector found that the Council’s stance on this matter was incorrect and that in the absence of any objections, prior approval should not have been refused for the reason given on the decision notice. [Unfortunately, the Inspector was nevertheless obliged to dismiss the appeal, because the applicant had ‘jumped the gun’ by starting work on the extension, and this disqualified the proposed extension as permitted development.]

I wouldn’t want readers to assume that they can get away with only the vaguest indication of what development is actually proposed. As the Inspector observed in the Greenwich appeal, there is a requirement in Part 1 to state the dimensions of the proposed development, so the written description of the proposed domestic extension in such a case must contain that information. In relation to Part 3, whilst a simple but legible plan should suffice for the purposes of a change of use under Part 3, something more will be required if operational development is also proposed, under Classes C(b), M(b), N(b) or Q(b). In this case, there would appear to be an inescapable need for dimensioned drawings to be provided, in order properly to describe the operational development that is proposed. [This is discussed in more detail in paragraphs 13.5 and 13.5.1 of Chapter 13 in A Practical Guide to Permitted Changes of Use.]

It should also be borne in mind that the LPA has the right to ask for additional information under paragraph W(9) of Part 3, although such a request must be confined to the matters that are specified for approval in relation to the Class of development in question. In some cases, this could include a request for more precise details of any operational development that is proposed, in order to be able to assess its design or external appearance, and it could perhaps include a requirement for additional drawings. If such information is properly required, then a failure to provide it might justify the dismissal of the application under paragraph W(3), but the LPA might then face an appeal, with a risk as to costs if they were found to have acted unreasonably.

© MARTIN H GOODALL