Monday 21 September 2020
LPA bitten by 56-day rule
In my book, A Practical Guide to Permitted Changes of Use, I stressed the absolute necessity of an LPA’s notifying their determination in respect of a prior approval application within the time limit laid down (56 days in the case of Part 3), and I carefully explained the detailed rules for establishing both the start date and end date of the 56-day period. Yet some LPAs still seem to get it wrong, especially if a public holiday occurs just after the application is received.
Just to remind you, there are no dies non for the purpose of calculating the 56-day period. The 56-day period (and similar time limits for determining other prior approval applications under the GPDO) continue uninterrupted throughout weekends and public holidays, and it is essential that LPAs should take this into account when working out how long they’ve got in which to make a determination and to communicate it to the applicant.
I was recently sent an appeal decision in Wellingborough [3248384] in a case where the prior approval application under Part 3, Class R had been delivered to the LPA by hand at 10.07 a.m. on Christmas Eve. It was deposited in a letter box for incoming mail at the council’s office. However, the letter box had been emptied earlier that morning, and was not then opened again until 2 January. At the time of delivery, the council’s office was, nevertheless, open for business. It closed for Christmas at 4.00 p.m. that day. The Council sought to argue that the application should be deemed to have been received on 2 January, not 24 December, and that the 56-day period should be calculated accordingly.
Their contention was that this office is only accessible to the public by appointment, and that if customers wish to drop off planning application forms, documents or samples, they are requested to call the planning department on the relevant phone number. Furthermore, they said, the Council’s Christmas opening hours were displayed on the letter box and also advertised on the Council’s website throughout December, making it clear that the council’s offices were closed from 4pm on Christmas Eve to 1 January 2020, and would not re-open until 2 January.
Rules relating to the delivery of documents outside a council’s business hours relate only to delivery by electronic means. [For those rules, see Article 2(9) of the GPDO and section 336(4A) of the 1990 Act, summarised in paragraph 13.8.1 of Chapter 13 in the Third Edition of my book.] There are no rules in the GPDO governing the physical delivery of documents at times when the council’s offices are closed, but this does seem to be a ‘grey’ area (unless someone can remind me of a general rule as to the service of documents that would cover this). Subject to that parenthetical proviso, it seems to me that the legal position might not have been entirely clear if (in this case) the physical delivery of the prior approval application had been made by depositing it in the council’s letter box at, say, 4.15 p.m. on Christmas Eve, after the office had closed. However, that point did not arise in this case, because delivery in the council’s letter box took place almost six hours before the office closed for the holiday.
The Inspector was entirely clear in his finding that there was nothing to prevent or prohibit the applicant from hand posting the application in the letter box at the council’s office on Christmas Eve. Responsibility rested with the council to ensure that applications it receives, including those received immediately prior to a holiday period, are processed within the statutory time limit. Weekends and bank holidays or other public holidays did not ‘stop the clock’, nor could it be suspended during the extended closure of the council’s office in this case. Day 1 of the 56-day period in this case was therefore 25 December, and the council had accordingly failed to notify the applicant as to whether prior approval was required or was given or refused within 56 days of its having received the application on 24 December.
The Inspector nevertheless pointed out that the proposed development could only lawfully proceed if it was in fact permitted development having regard to the relevant conditions and limitations imposed on the planning permission granted by the GPDO. There appears, however, to have been no contention on the LPA’s part that the development would not be compliant with the restrictions, limitations or conditions applying to Class R. Furthermore, (due to the council’s being out of time to determine the prior approval application) it was no longer necessary to consider whether prior approval as to the transport and highways, and noise impacts of the development would or should be required.
The appellant applied for, and was granted, a full award of costs. The appellant had sought on at least two occasions to persuade the council that it was out of time, but the council persisted in denying this. In the circumstances, it was unlikely that the council would have granted an LDC if the appellant had made a section 192 application. So it was clear that the applicant had no viable option but to appeal under section 78, despite having taken all reasonable steps to avoid such a situation. As a result, the applicant had been put to the cost of an appeal that should have been avoided by the LPA’s acceptance that the 56-day period had elapsed. This amounted to unreasonable behaviour resulting in unnecessary or wasted expense, and an award of costs was therefore justified.
This should be an object lesson to all LPAs. In order to avoid running out of time for determining a prior approval application, they should make a working assumption that physical delivery of an application (discovered in their letter box on returning to the office after a weekend or public holiday) was effected before the closure of the office for the weekend or before that holiday period, and ensure that the timescale within which the application must be determined is calculated on that basis, so that the application is in practice determined within that shortened period.
© MARTIN H GOODALL
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Dangerous things letterboxes. We have a grand brass letterbox built into the entrance portico of a 1930's Council building which ceased to be the main entrance and a used letterbox about 40 years ago. The letterbox was sealed up to prevent anything being posted in but we discovered by chance the seal had failed over time. Luckily no post inside but mindful of cases like this I had a few palpitations...
ReplyDeleteThis is an interesting case. I am dealing with something similar whereby a local authority issued a determination after the 28 day window from when a prior notification application was submitted (and paid by the applicant) via the Planning Portal.
ReplyDeleteOfficers are claiming the payment forwarded by the Planning Portal did not clear into their account until two days after it was submitted (although have provided no evidence of this). The Planning Portal has confirmed that the payment was sent to the LPA on the notification submission date and confirmed this to be the case on that day directly to the Council.
I see it is reasonable for the 'received' date to require the full notification submission, including the fee. But have not come across a similar case where there was such a gap between payment and receipt which does seem slightly unfair. If the payment was made via cheque, wouldn't it be backdated to receipt rather than clearance.
It might be that an appeal is required to confirm.
Prior approval applications could not originally be made via the Planning Portal, which avoided the sort of problem that Bob Brown has identified. Off-hand, I am not sure precisely what the position is in this case, but it seem to me the MHCLG, through its Planning Portal, is in effect acting as the LPA’s agent, and so it might reasonably be argued that uploading the prior approval application to the Planning Portal, together with electronic payment, must be counted as receipt of the application (and of the fee) by the LPA, even if there is an administrative delay within the Planning Portal in passing these on to the LPA.
DeleteSo my assumption is that the position as to receipt of the application and of the fee by the LPA is the same as described in paragraphs 13.8.1 and 13.8.2 in Chapter 13 of the Third Edition of A Practical Guide to Permitted Changes of Use (which would also apply to prior approval applications under other Parts of the Second Schedule to the GPDO, including Part 6, with the Planning Portal representing the LPA in this case.
Delay on the part of the Planning Portal in passing the application and/or payment of the fee on to the LPA would appear to me to be no different from an administrative delay occurring within the LPA in respect of a prior approval application delivered direct to the LPA.
As Bob Brown suggests, it might perhaps take an appeal to resolve this issue. It is a pity that when the Planning Portal started accepting prior approval applications, there was not at that time an amendment to the GPDO to clarify the procedural position in this regard.
I wonder. Is the portal acting as the LPA's agent, or the applicant's agent? After all isn't it the applicant that chooses whether or not to use the portal. The LPA cannot insist all applicants use it, which they perhaps could if the portal was their agent as you suggest.
DeleteWell, that could perhaps be so. But the problem with that is that the applicant would then be entirely in the hands of the Planning Portal as to when they pass on the application and the fee to the LPA. I wonder what view MHCLG (or the Planning Inspectorate) takes of this?
DeleteThis only serves to reinforce my view that, for prior approval applications, it is still preferable to deliver the application direct to the LPA (either by email or by hand), and then you know exactly when it is received by the LPA.
As I have explained in the book, if paying the fee through the BACS faster payments service, instructions to the applicant's bank should preferably be sent in the morning (on a day when the council offices are open), so as to obviate any dispute over the time of receipt in the LPA's bank account that day.
Whenever I read the acronym MHCLG on this blog, my first thought is always 'I wonder what Martin H C L Goodall's other middle names are?' Childish, but there you are.
ReplyDeleteI mourn the passing of the ministry’s former name, which led to everyone, including me, calling it “De-CLoG”. (I think that’s why they decided to change the name.)
DeleteMartin, I have a query over the notifying of an application decision. Can the LPA argue that posting on their website that a prior approval was required is the same as 'notifying the applicant' by e-mail letter? Would you class that as having notified the applicant or should a physical letter have been received?
ReplyDeleteNo. Posting a decision on the LPA’s website does not amount to the receipt by the applicant from the local planning authority of a written notice as required by paragraph W.11 (a) or (b). It follows that if such written notice is not received by the applicant (or their agent) within the 56-day period, paragraph W(11)(c) will apply instead.
DeleteI have sometimes come across this argument on behalf of LPAs, but I am not aware that they have ever got away with it. It is usually just a lame excuse for having failed to communicate their determination to the applicant within the time limit.