Matters arising - Extension of time for prior approval

Following my webinar on Permitted Development at the end of last month, I was hoping to answer some of the questions that had been submitted, but which there was not time to answer ‘on the air’. Unfortunately, there has been some delay, due in part to our encountering a difficulty in actually downloading the questions from Zoom. In this post I shall concentrate on those questions that related to the extension of time for the determination of a prior approval application.

The first questioner asked whether an LPA’s refusal, despite Gluck, to agree an extended deadline for determination of a prior approval, might be unreasonable behaviour, and therefore grounds for a costs claim. However, one has to remember that the LPA is bound in principle to determine the prior approval application within the relevant time limit, failing which the PD right will be exercisable by default. It is therefore up to the LPA either to determine the prior approval within that deadline or to seek the agreement of the applicant to an extension of time. There is no requirement for an LPA to do this; Gluck merely confirmed that Article 7 of the GPDO does enable time to be extended by the written agreement of both parties.

If the LPA refuses the application within the time limit, rather than seeking an agreed extension of time, I suppose that (in some circumstances) this might amount to unreasonable behaviour justifying an award of costs, if it is clear that an agreed extension of time would have enabled them to grant prior approval. But I stress that this would be very much dependent on the facts of the case. If their refusal of prior approval was justified in any event, then clearly the fact that they did not seek agreement to an extension of time for their determination of the application would not be grounds for an award of costs.

Another questioner had forwarded my blog post on the extension of time limits to the LPA, but they declined to extend time on a Class Q application to enable a Phase 2 bat survey to be completed. A refusal was issued on the ground that incomplete bat survey information had been provided and also that the applicant had failed to sign a section 106 undertaking requiring a payment to be made to the LPA.

Taking the latter point first, I cannot envisage any circumstances in which any payment to the LPA could be required in respect of the matters requiring prior approval under the GPDO. So this would certainly be a potential ground of appeal (and would possibly justify an application for costs against the LPA). The question of the bat survey is, however, slightly more problematic. I am aware of prior approval appeals being dismissed for lack of information on ecological issues (such as a bat survey where this might reasonably be required). On the other hand, I am aware of a condition being imposed on a prior approval granted on appeal requiring a bat survey before the commencement of the permitted development. The questioner might have been justified in expecting this approach to be taken; alternatively, an extension of time could perhaps have been agreed. If an appeal were to be lodged against the refusal of prior approval, there might possibly be time to complete a Phase 2 bat survey, and forward this to the Inspector, although I am not sure whether such ‘late’ information would be accepted by PINS. A better option might be to start again with a fresh prior approval application, having first completed the bat survey.

The next question was - "If an LPA does not determine a Class Q application within 56 days, should they issue a letter to the applicant confirming that they have deemed consent if the proposal is permitted development; or refuse to determine the application and advise the applicant to apply for a Lawful Development Certificate for a determination as to whether it is permitted development?"

I am not convinced that an LPA that misses the deadline for determination is specifically required to do anything. They have missed the boat and, provided the development does actually qualify as PD, the developer is free to proceed with the development. I have always advised developers that they need to be quite sure that the development does qualify as PD and that it does meet all the limitations, restrictions and conditions that apply to that particular development. If there is any doubt about this, or if it is clear that the LPA does not accept that the development does in fact qualify as PD, then it may be advisable to apply for a Certificate as to the Lawfulness of Proposed Use or Development under section 192 before starting work. A gung-ho approach on the part of the developer could be risky unless they have been advised by professional consultants that the development undoubtedly qualifies as PD. The onus is entirely on the developer to satisfy themselves as to the legal position; it really doesn’t matter whether the LPA sends a belated communication or not.

There was then a question as to whether conditions 'bite' when the LPA issues a prior approval after the expiry of the determination period. The answer to this is that, once the deadline has passed, any notice issued by the LPA will be of no legal effect, even a purported notice of approval. It follows that any conditions attached to a purported prior approval issued out of time will be of no effect.

A different aspect of this issue was raised with regard to Part 6, Class A - Although the Order specifies a timeframe for the Council to notify the applicant if prior approval is required, there is no timeframe for the submission of the prior approval details (when they are required), or for the Council to then give or refuse approval of those details. Do the time limits in Article 7 therefore apply to the 'second stage' of the application? The wording would suggest the 8 weeks would run from the date of the application, i.e. the first stage, not the second stage, however the prior approval details may not be submitted within that timeframe. Is there anywhere else in the legislation that would put a time limit on the second stage decision?

This would appear to be a lacuna in the legislation. The LPA must decide within 28 days whether their prior approval will be required as to the siting, design and external appearance of the building, etc. The initial prior approval application will have been accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site, but if the LPA does decide (within the 28-day period) that their prior approval of siting, design, etc, will be required, there may well be a need for more information (such as building elevations, etc.) to be provided. There is no indication as to when the developer should provide this information, nor is there any binding obligation on the LPA to approve the siting, design, etc. within any particular period. The usual 8-week period allowed for the determination of planning applications would appear to apply in principle, but the only remedy for the developer if that further 8-week period expires without a decision would be an appeal against non-determination (deemed refusal). Most applicants would no doubt prefer to wait and see whether an approval is in fact forthcoming.

Finally, a questioner asks whether an extension of time can be agreed with the applicant via email or whether it must be in the form of a letter. This question arose in Gluck. The judge held that an email qualifies as being “in writing”, and no greater formality of communication is required.

I will deal with some questions on Class Q and other particular classes of PD in a future post.

© MARTIN H GOODALL