Tuesday 18 February 2020

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

7 comments:

  1. This would also question whether internal drawings are required showing layout etc.

    I've never had to supply, but I know some do.

    Is there any legal basis where the LPA can insist upon internal drawings and therefore make them part of the application.

    For us we have in the past had to change dimensions and layouts of dwellings, which had plans been submitted would've required a variation of the plans.

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    1. I have always been firmly of the view that plans or drawings of internal layouts are not required, and I have made this clear in the book (on page 197 of the Third Edition). All that is required is written information as to the number of dwellings and floorspace. (See 13.6 - page 199 in the Third Edition.)

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    2. If the barn is really small, I see no reason why internal dimensions cannot be required during the determination period of the notification (on design grounds) to satisfy an LPA that the living conditions would be acceptable.

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    3. As the law stands at present, living conditions are not a matter that the LPA is entitled to consider in determining a prior approval under Part 3, and so floorspace is nor relevant in that context. This is a particularly controversial issue (in relation to Class O in particular, although it could potentially apply to other classes). It is currently the subject of a review by MHCLG, although I am not aware of its precise terms of reference, how precisely this review is being carried out, or when the outcome of the review is expected to be published.

      In relation to Class Q, a statement of floorspace provided is relevant, for the purposes of checking compliance with the floorspace limits (both individual and cumulative). However, it suffices to give this information in writing, rather than on the submitted plan.

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    4. Hi Martin

      I'm not sure its so clear-cut as you have made out (perhaps Class O is but not class Q).

      Class Q requires an assessment of design (which space standards are a part of) and also, whether the location of siting of the building makes it undesirable (therefore external factors impacting on living conditions such as smell or noise nuisance may also be considered).

      There are PINS decisions dismissing Class Q decisions for space standards, and also, where nuisance is caused from the farmstead which would impact on living conditions.

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    5. As regards the assessment of design and appearance, I made it clear (both in this blog post) and also in the book that detailed drawings showing exterior elevations will be an almost inescapable requirement where operational development is proposed as part of the PD under Class C(b), M(b), N(b) or Q(b).

      I also agree that smell, noise nuisance, etc. from continuing agricultural activities adjacent or close to the site have been upheld on appeal as reasons for refusing prior approval, because (in some cases) the location or siting of the building in proximity to such potential nuisances makes it impractical or undesirable for the building to change from agricultural use to residential use, and I have cited examples in the book.

      However, if there have been appeal decisions dismissing proposals (whether under Class Q or under any other Class within Part 3) on the basis of space standards, then I would strongly contend that such decisions were outwith the powers of the decision-maker under Part 3, and would have been eminently challengeable if the appellants had chosen to take the matter to the High Court. [But, as I indicated, this may change in the future, if ministers amend the GPDO in response to the widespread concerns that have been expressed on this issue.]

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    6. The GPDO has been further amended since the comments above were published. There is clearly now a requirement in respect of residential conversions to provide information as to the internal arrangements, which must necessarily include relevant drawings. There is also a need for external elevations where external appearance is a matter requiring prior approval. The FOURTH EDITION of "A Practical Guide to Permitted Changes of Use" discusses these requirements in more detail.

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