Prior Approval Deadlines: An Important Judgment

Your planning law question for today is:

Where the General Permitted Development Order 2015 provides that you have deemed planning permission for a category of development within Schedule 2 of the Order, subject to your applying to the local planning authority for a determination as to whether its prior approval is required as to specified matters, and the Order sets out a specific deadline for that determination (failing which development may proceed), can you agree an extended deadline with the local planning authority?

When you look at Schedule 2, Part 3 (changes of use) for instance, paragraph W specifies as follows:

(11) The development must not begin before the occurrence of one of the following –

(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;

(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or

(c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”

There is no hint of any power for the parties to agree an extended time period.

But then you look at Article 7 of the Order:

7. Prior approval applications: time periods for decision

Where, in relation to development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval, an application has been made to a local planning authority for such approval or a determination as to whether such approval is required, the decision in relation to the application must be made by the authority –

(a) within the period specified in the relevant provision of Schedule 2,

(b) where no period is specified, within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or

(c) within such longer period as may be agreed by the applicant and the authority in writing.

Does this enable that 56 day period to be extended? Most commentators have previously assumed so. My experience is that agreed extensions are not uncommon. After all, a developer would often rather allow the authority further time to determine an application (perhaps on the basis of further information being provided to assist in its consideration of the issues) rather than to face a 56th day refusal and the need to re-apply and/or appeal.

It’s a binary question. The High Court in R (Warren Farm (Wokingham) Limited v Wokingham Borough Council (Mr C M G Ockelton, 31 July 2019) has ruled that article 7 (c) does not enable specific deadlines in schedule 2 to be extended.

In Mr Ockleton’s view (Mr Ockleton is Vice President of the Upper Tribunal but regularly sits as a High Court judge), article 7 (c) only enables extension of time in relation to categories of prior approval application which fall under article 7 (b) ie where Schedule 2 does not specify a deadline and therefore article (b) imposes a deadline of eight weeks.

He goes on to say this:

There is of course a certain artificiality in the discussion: I was not shown any provision of the GPDO to which article 7(b) applies and it follows from the view that I have reached that if there is (at present) none, there is also no provision to which article 7(c) applies. But that does not impact on my conclusion. Where a period is specified, the deemed grant of planning permission takes place at the end of that period, so the authority’s decision must be before that. If no period be specified, the deemed grant takes place only when a decision is made, and there is therefore scope for agreeing a time within which the authority has to make a decision. Article 7(c) is to be read as an alternative to article 7(b) only, not to article 7 (a).”

(Obviously I took that as a challenge to go rooting through the Order. For a prior approval procedure in schedule 2 without a specified deadline for the prior approval process you need to go 200 or so pages into the document to classes B and following classes in Part 17 (“mining and minerals operations”)).

I am not at all sure that Parliament intended article 7 (c) to have such limited effect. I would suggest that MHCLG review the implications as a matter of urgency. Particularly if we are going to see further or amended permitted development processes in due course with additional matters for prior approval, are the current determination deadlines appropriate if they can’t be extended by agreement?

Furthermore, what are the implications for existing applications? The claimant in the Warren Farm case had agreed an extended period of determination for its prior approval application in connection with a proposal to use an agricultural building as a dwelling. The application was subsequently refused but it successfully challenged the refusal on the basis that in fact the purported agreement to extend time had not been legally effective and that there was therefore an automatic deemed approval at the end of the 56 days.

There may be other decisions in the same circumstances, subject to the usual judicial review deadline.

However, isn’t there legal uncertainty as to what is the case in any event, if there was a purported agreement to extend the time period and then an (as it now transpires) unlawful refusal? Even if the issue of that refusal is not (or cannot now be) challenged by way of judicial review, does (in the case for instance of changes of use) paragraph W (11) (c) allow the development to be carried out in any event because there has been “the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”. The 56 days expired without any refusal and is that sufficient, even if there was subsequently a refusal? Open question – what do you think?

I think we shall be seeing further litigation. In any case, the wording of the Order needs to be clarified.

Simon Ricketts, 24 August 2019

Personal views, et cetera

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

4 thoughts on “Prior Approval Deadlines: An Important Judgment”

  1. A very poor decision, and ripe for over-turning on appeal. Art 7 would have been drafted quite differently if that was the intended effect.

    Still, well done to whichever Counsel persuaded Mr Ockleton that this was the correct reading.

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  2. I have been reading your interesting postings for some months, but I am just an ordinary person, not qualified in anything, so I hope you don’t mind if I comment. In Art 7, quoted above, there are two types of application, one in which the applicant has presumably already worked out that prior approval will be required, and therefore applies for it. That one could be subject, as mentioned, to a 56th day refusal, so it would be in the developer’s interest to agree an extension (if requested). The other is when the applicant does not know, so applies for a determination. That surely can not be refused at any time? If the developer were to receive a request for more time, then surely he should bin it and keep quiet.

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    1. Thanks for this (and by the way I take the view that legislation is pretty poor if non lawyers can’t work out what needs to be done). I think the 2 categories in article 7 are (a) for types of PD where there is a specific time limit (nearly all of them) and (b) those were there aren’t (none of the mainstream ones). Both can be refused by the LPAA before the deadline. The deadline for (a) depends on the category but is usually 28 or 56 days. Art 7 (b) provides that the deadline for (b) is 8 weeks (ie 56 days). The judge found that only the (b) sort of deadline could be extended. Hope that’s clear but it’s all a bit of a pig’s breakfast.

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