Town and country planning – Permitted development – Prior approval – Claimants challenging decisions of three planning inspectors dismissing appeals against refusal of prior approval under class AA of part 1 of schedule 2 to Town and Country Planning (General Permitted Development) (England) Order 2015 – Whether inspector correctly interpreting provisions relating to local planning authority’s control of impact on amenity of neighbouring premises – Claims dismissed
The Town and Country Planning (General Permitted Development) (England) Order 2015 granted planning permission for the classes of permitted development set out in schedule 2. Where a landowner was entitled to rely upon such rights, he did not need to make an application for a grant of planning permission to the local planning authority under section 62 of the Town and Country Planning Act 1990.
Where a local authority refused to grant prior approval, or failed to determine an application within the relevant time limit, the applicant might appeal to the defendant secretary of state.
The claimants in the present cases each brought an application under section 288 of the 1990 Act challenging the decisions of three planning inspectors to dismiss appeals against the refusal of prior approval under class AA of part 1 of schedule 2 to the 2015 Order. That class provided for the enlargement of a single dwelling house by the upwards addition of up to two storeys, or one storey above a single-storey building.
In each case, the inspector had concluded that the proposed development would have an adverse impact in terms of the amenity of adjoining premises and/or the external appearance of the dwelling: see paragraph AA.2(3)(a)(i) and (ii) of Part 1 of schedule 2 to the 2015 Order.
The claimants’ contended that the inspectors had adopted too broad an interpretation of class AA so that the decisions taken were outside the ambit of their powers.
Held: The claims were dismissed.
(1) Class AA of part 1 of schedule 2 to the 2015 Order defined the maximum number of storeys which might be erected above a dwelling, and paragraph AA.1 set out a number of parameters for defining the maximum height to which a proposal might be built, subject in each case to obtaining prior approval. Not all development approved under class AA might reach one or more of those maximum limits, because a developer might choose to seek approval for a lesser scheme, or the decision-maker might decide that the scale of the proposal (or some aspect of that scale) was too great, acting within the ambit of the prior approval controls in paragraph AA.2(3)(a).
Since class AA did not grant a permission for any particular “scale” of development, scale could be controlled under the prior approval provisions within the ambit of paragraph AA 2(3).
(2) In paragraph AA.2(3)(a)(i) of part 1, “impact on amenity” was not limited to overlooking, privacy or loss of light. It meant what it said. The phrase “adjoining premises” in that paragraph included neighbouring premises and was not limited to premises contiguous with the subject property; The normal meaning of the word “adjoining” included “adjacent” or “neighbouring”. It was plainly stated that one of the matters to which the permitted development right was subject was prior approval in respect of a proposal’s impact on “the amenity of neighbouring premises”.
It would make no sense for the legislation to require the authority to assess the impact of a proposal on the amenity of “neighbouring” premises, but to consult only a narrower class of neighbours, namely those living in dwellings contiguous with the subject property. The draftsman had used the words “neighbouring” and “adjoining” interchangeably and with the same meaning. The reference to “boundary” should not be taken to imply that “adjoining” required contiguity. Adjoining premises could be neighbouring premises in relation to that curtilage.
(3) In paragraph AA.2(3)(a)(ii) of part 1, the “external appearance” of the dwelling house was not limited to its principal elevation and any side elevation fronting a highway, or to the design and architectural features of those elevations. Instead, the prior approval controls for class AA of Part 1 included the “external appearance” of all aspects of the dwelling house.
The word “including” in paragraph AA.2(3)(a)(i) or (ii) was not to be read as limiting the matters which could be taken into account under “amenity” or “external appearance” to those which were expressly specified as being included. The word “including”, read in the context of this legislation, did not have an exhaustive effect. Had the intention been to limit prior approval controls to the matters specified, the obvious course would have been to say so directly.
(4) An application for prior approval under class AA of Part 1 was required to include drawings showing all elevations of the building as proposed to be extended. An approval, if granted, had to relate to those drawings and the development had to be carried out in accordance with them. It would be inconsistent with the nature of that approval that a local authority should grant it without considering all the submitted elevations and applying the controls in paragraph AA.2(3)(a) to the whole proposal.
A proposal for an upwards extension of a building under class AA of part 1 was capable of having a significant impact on the amenity of neighbouring premises. Such impacts might include, for example, impact on outlook, noise and activity. There was no reason to think that the language used in the 2015 Order was meant to exclude such considerations from control by prior approval.
(5) The “external appearance” control was not confined to an assessment of the impact of that appearance on the subject property itself, as opposed to its surroundings. Paragraph AA.2(3)(a)(ii) simply required a developer to obtain prior approval of the “external appearance of the dwelling house…”. The order did not contain any language to the effect that the decision-maker might only assess the impact of that external appearance on the dwellinghouse itself. That interpretation involved reading additional words into the legislation when there was no legal justification for doing so. The local authority was empowered to assess and control all relevant aspects of that external appearance, and not simply those which impacted on the subject building.
In the present case, the decision of each inspector was entirely lawful. Individual decision-makers would make their own planning judgments applying the prior approval controls, correctly interpreted, to the materials before them.
Charles Streeten (instructed by Direct Access) appeared for the claimants; Thea Osmund-Smith (instructed by Government Legal Department) appeared for the first defendant; The second defendants in each case did not appear and were not represented.
Eileen O’Grady, barrister
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