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

Legal challenge to GPDO and UCO changes moves forward

The High Court (Holgate J), has directed that this action (on which I reported on 27 August) will be heard in a “rolled-up” hearing in the first half of October. This means that the Court will deal with both the application for leave to proceed and with the substantive claim at the same time. This is a procedure that is sometimes adopted in cases of urgency.

I did wonder whether this case might be thought to be of sufficient importance to be heard by a Divisional Court, rather than by a single judge, and this is indeed what has been decided. One advantage of this (for both sides) is that if the case is decided by a strongly constituted Divisional Court, the losing side may possibly be able to appeal under the ‘leap-frog’ provision direct to the Supreme Court, without first having to pursue an appeal through the Court of Appeal.

The claimant also sought confirmation from the Court that this case would be governed by the Aarhus Convention (which limits the costs that can be awarded against a losing claimant in an environmental case), and the Court has confirmed that this case will be covered by the convention.

In view of the early substantive hearing of this case, the claimant has decided not to pursue its original application for interim relief, but at the hearing it will simply seek the final relief which has been claimed.

In the meantime, the offending SIs have been ‘prayed against’ in parliament (which is parliamentary language for having the matter debated). This will at least give opposition parties a chance to voice their concerns about this radical new subordinate legislation, although the government’s substantial majority will ensure that these political objections will be brushed aside.

The legal challenge to the legislation is far more serious, and the grounds on which this challenge is based raise important legal issues, especially in relation to the failure to carry out a Strategic Environmental Assessment. The alleged failure to take proper account of the responses to consultation, or to consider the government’s own specialist advice, also raises a serious Wednesbury issue.

I am sure that I am not the only lawyer who is salivating at the prospect of a juicy legal battle in October.

UPDATE: The case was heard by a two-judge Dvisonal Court last week, and (as is usual in such cases) judgment was reserved. I am not aware of any estimate as to how soon judgment may be exepected.

© MARTIN H GOODALL

Application fees for prior approval under Part 20

The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2020 (SI 2020 No.936), which were made on 5 August, came into force on 2 September. Readers will recall that the new fees for prior approval applications were announced some time ago, so these new fees were entirely as expected. In the event, the potential window of opportunity to bang in a prior approval application under the new PD rights without having to pay a fee lasted for only one day. I wonder if any lucky applicants managed to get their applications in on 1 September, and so avoided having to pay the application fee?

The fee for a prior approval application under Part 20 (construction of new dwellings) where the number of new dwellings proposed is 50 or fewer is £334 for each new dwelling; but where the number of new dwellings proposed by the development exceeds 50, the fee is £16,525, plus an additional £100 for each new dwelling in excess of 50, subject to a maximum in total of £300,000.

As I mentioned in an earlier post, there is a ‘free go’ for a second application under Part 20 within 12 months, in circumstances similar to those applying to planning applications; but this ‘free go’ does not extend to prior approval applications under other Parts of the Second Schedule to the GPDO.

© MARTIN H GOODALL