Town and country planning – Extension – Prior approval – Claimant applying to second defendants for prior approval of extension to property – Second defendants refusing application – First defendant secretary of state dismissing appeal – Claimant applying to quash decision – Whether application complying with condition (2) of paragraph A.4, Class A, part 1, Schedule 2 to Town and Country Planning (General Permitted Development) (England) Order 2015 – Whether inspector’s conclusion flawed – Application dismissed
The claimant applied to the second defendant local authority for prior approval, under the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO), of a six metre extension from the rear wall of her house at 138, Wingletye Lane, Hornchurch. The second defendants were required to give notice of their decision on that application before 30 March 2015. On 27 March, the second defendants decided to refuse prior approval on the basis that the impact of the proposed development on the amenity and outlook of adjoining occupiers would be unacceptable by reason of the extension’s scale, bulk and mass and would represent an obtrusive and overbearing feature in the rear garden environment. The decision was published online on 27 March but was only received in writing by the claimant on 31 March.
The claimant appealed against the decision under section 78 of the Town and Country Planning Act 1990, pointing out that she had only been informed of the decision after the requisite period. An inspector appointed by the first defendant secretary of state found that the claimant had not been notified in writing or otherwise of the decision within the requisite period. However, her appeal was dismissed on the basis that the proposed development had been begun before her application was made so that a requirement of condition (2) of paragraph A.4 of Class A, part 1 of Schedule 2 to the GPDO was not fulfilled. Therefore, the proposal did not amount to permitted development.
The claimant applied to quash the inspector’s decision, contending that, even assuming that the development had been begun before the claimant’s application was submitted: (i) an appeal against the refusal of prior approval could not be dismissed on the ground that condition (2) had been breached; (ii) the appeal should have been allowed in any event given the inspector’s conclusion that the second defendants had not notified the claimant of the decision within the permitted 42 day period; and (iii) the inspector’s conclusion that the development had been begun before the claimant applied for prior approval was flawed as a matter of law.
Held: The application was dismissed.
(1) The Class A permission was one granted by the GPDO itself, even if it could not be relied on to authorise the carrying out of any development until an application had been made which satisfied sub-paragraph (2) of condition A.4 and one of the events specified in sub-paragraph (10) had occurred. The application to the local planning authority, and any approval or refusal given under condition A.4, was concerned with a proposed development that Class A was capable of authorising, not a development that had already been begun or was partially or wholly completed.
The information to be provided to the local planning authority under sub-paragraph (2) of condition A.4 included a written description of the proposed development and a plan indicating the site and showing the proposed development. That had to be provided by the developer before beginning the development. Each adjoining owner or occupier had to be notified by a notice describing the proposed development and its address. If the development had been completed before information was submitted under sub-paragraph (2), there was no proposed development. If the development had been begun but not completed, the proposed development to be described could only be that part of it which remained to be carried out. It was only that part in respect of which any prior approval could be given. Unlike section 73 of the 1990 Act, condition A.4 did not contemplate an application, or provide for any approval to be given retrospectively, for any part of any development that had been carried out or carried out in breach of condition. What needed to be considered and approved was the whole development.
The GPDO dispensed with the requirement which would otherwise exist for an application to be made to the local planning authority for the grant of planning permission for development of Class A, but only if the developer complied with any conditions or limitations which the GPDO imposed on the planning permission it granted. The need to make an application for planning permission to authorise a development that did not comply with such conditions and limitations, including an application to authorise development that had been unlawfully carried out, imposed no penalty on the developer. It was merely what the legislative scheme entailed: Whitley & Sons Co Ltd v Secretary of State for Wales [1992] 3 PLR 72 and Greyfort Properties v Secretary of State for Communities and Local Government [2011] 3 EGLR 93 distinguished.
(2) Once the 42-day period had expired, without receipt by the developer of written notice that prior approval was not required or had been granted, the developer’s proposed development could be carried out in accordance with the information provided by the developer under sub-paragraph (2) before the development began with the benefit of the planning permission granted. But the planning permission granted by Class A did not authorise the carrying out of any development any part of which had begun before an application was made to the planning authority under sub-paragraph (2). Accordingly, the inspector was not obliged to allow the claimant’s appeal if works to provide the extension had begun before she submitted her application.
(3) The inspector had not failed in his investigative duty by not discovering that a wall had been constructed in the wrong location and could not amount to the construction of the proposed extension; nor had he failed to ask himself the right question or unreasonably failed to take steps to acquire the information necessary to answer it. The issue for the inspector was the nature of the works, not where they were. Moreover, his conclusion was not irrational on the information available to him. He was entitled to conclude that the nature of the works was consistent with the view that the erection of a rear extension had begun. The inspector had not failed to ask himself the right question or unreasonably failed to take steps to acquire the information necessary to answer it; nor had he made a material error of fact which provided a ground on which to find that his decision was not within the powers of the 1990 Act for the purposes of section 288.
Richard Turney (instructed by Kingsley Smith LLP) appeared for the claimant; Zack Simons (instructed by the Government Legal Department) appeared for the defendants.
Eileen O’Grady, barrister
