The 56-day Rule – CA upholds agreed extension of time

On 5 February this year, I summarised the judgment of Holgate J in Gluck v SSHCLG - a challenge to an appeal decision in circumstances where there had been a purported extension of time for determination of the prior approval application, which the LPA alleged had been agreed with the applicant. That decision departed from the previous ruling in R (Warren Farm (Wokingham) Limited v Wokingham BC [2019] EWHC 2007 (Admin), in which a Deputy Judge had been persuaded that Article 7 of the GPDO did not permit an extension of the 56-day period in the case of a prior approval application made under Part 3 of the Second Schedule to the GPDO.

This issue has now come before the Court of Appeal, in Gluck v SSHCLG [2020] EWCA Civ 1756, which has upheld the judgment at first instance on both the points that were in contention in this case. The importance of this Court of Appeal decision is that it puts this issue beyond doubt, and resolves any lingering doubt that there might have been over any potential incompatibility of the High Court judgment in this case with the previous judgment in Warren Farm. I don’t need to rehearse the issues again here, as the Court of Appeal has endorsed the decison at first instance on both of the points that were in contention between the parties.

The position, as now confirmed by the Court of Appeal, is that:

(1) The wording of Article 7 of the GPDO, after setting a time limit for the determination of a prior approval application, allows a prior approval application under the GPDO be determined in all cases within such longer period as may be agreed by the applicant and the authority in writing.

(2) The phrase “agreed by the applicant and the authority in writing” does not require any formal document. Agreement can be sufficiently evidenced by an exchange of emails. The only requirement is that there must be sufficient evidence in writing (which may be in electronic form) to show that one party had proposed an extension of time and that the other party had assented to that proposal. The evidence of such agreement in this case was clear beyond doubt.

Mr Gluck’s appeal against the judgment of the High Court was accordingly dismissed. Time had been duly extended in the manner provided by Article 7, and so Mr Gluck was not entitled to proceed with his development in default of the determination of his prior approval application within the 56-day period.

© MARTIN H GOODALL