Town and country planning – Permitted development – Prior approval – Claimant applying to defendant local planning authority to determine whether prior approval required in relation to permitted development – Development commencing after 56 without defendant making decision – Extension of period for determination of application being agreed – Defendant refusing prior approval before extension period expired – Claimant applying for judicial review – Whether decision having no legal effect when made outside specified period – Whether provisions for extension of time applying only where no statutory period for decision – Application granted
The claimant proposed to change the use of Warren Grain Barn, Wokingham to use as a dwelling house pursuant to permitted development rights under article 3 of, and class Q in part 3 of schedule 2 to, the Town and Country Planning (England) (General Permitted Development) Order 2015.
Article 7 of the 2015 Order provided that where, in relation to development permitted by any class in schedule 2 which was subject to prior approval, an application had been made for such approval or a determination whether such approval was required, a decision had to be made by the authority: (a) within the period specified in the relevant provision of schedule 2; (b) where no period was specified, within a period of eight weeks beginning with the day immediately following that on which the application was received by the authority; or (c) within such longer period as might be agreed by the applicant and the authority in writing.
On 12 November 2018, the claimant submitted to the defendant local planning authority an application in the form required by para W(11) of schedule 2 to the 2015 Order which provided that the development should not to commence before the authority had given notice that prior approval was not required or granted such approval; or, under para W(11)(c), before the expiry of 56 days following the date on which the application was received by the local planning authority without the authority notifying the claimant whether prior approval was given or refused.
On 8 January 2019, the defendant asked the claimant for an extension of time. The claimant agreed, in the interests of expediency, an extension to 31 January. On 30 January, the defendant refused prior approval on the ground that inadequate information had been submitted to demonstrate compliance with the conditions in para Q.2. No development had yet taken place.
The claimant applied for judicial review of that decision arguing that the defendant’s decision was of no legal effect because it was too late. The question was whether para 7(c) was an alternative to both paras 7(a) and 7(b) or only to para 7(b).
Held: The application was granted.
(1) Read in context, para W(11)(c) said that development might commence when the 56 days had expired. Article 3 gave planning permission for permitted developments, subject to (amongst other things) relevant conditions. The conditions for present purposes were those imposed by para Q.2, which included making the application to which para W applied. The contents of para W were by that means imposed as conditions to which development in class Q was subject. The conditions were, essentially, the making of the application and then, unless the application was refused under para W(3), or the process under para W(5)-(10) took place, waiting until one of the events in W(11) took place. The condition was that the development did not begin before one of those events had taken place, but that was the condition the fulfilment of which generated the operation of the principal provision of article 3, i.e. the grant of planning permission. When the developer had met all the conditions, including not beginning the development too early, he had planning permission and was at liberty to commence development. Therefore, although para W(11) was expressed negatively, if “not beginning too early” was the last condition to be met, its effect was positive.
(2) There was nothing in para W(11) to impose a further condition of not commencing the development if a period of 56 days had passed without a decision from the local planning authority. Where the legislator had fixed a period of time accompanied by inaction on the part of an authority as having a specified effect to the advantage of a developer, the authority was constrained to act promptly if it wished to act at all, for the effect of time passing without a decision was that the development could proceed. Where a positive effect could be the result of inaction, it was better if the period of inaction that would have that effect was subject to as little variation as possible. Furthermore, the structure of the 2015 Order suggested that article 7 should not be seen as imposing a condition. The grant of planning permission made by article 3 was subject to any relevant exception, limitation or condition specified in schedule 2. Article 7 imposed a duty on the authority rather than a limitation on the grant of permission. It was not in schedule 2 and it did not on its face purport to impose any restriction on the grant made by article 3. It was therefore an unlikely source of a condition to which the grant was subject.
(3) If article 7 was read in such a way that para 7(c) was an alternative to para (b) but not to paragraph (a), it meant treating cases where a period was specified differently from cases where a period was not specified. There was every reason for a difference in treatment. There was room for the parties to agree a time for making the decision that would bring the waiting period to an end, without encroaching upon a provision bringing the waiting period to an end in another way. Where a period was specified, the deemed grant of planning permission took place at the end of that period and the authority’s decision had to be before that. If no period be specified, the deemed grant took place only when a decision was made; there was therefore scope for agreeing a time within which the authority had to make a decision. Article 7(c) was to be read as an alternative to article 7(b) only, not to article 7(a). It followed that the decision under challenge had to be quashed as made without jurisdiction. The deemed grant of planning permission took place nearly three weeks earlier, on 10 January 2019.
Ashley Bowes (instructed by Barlow Robbins Solicitors) appeared for the claimant; Guy Williams (instructed by SBS Legal Solicitors) appeared for the defendant.
Eileen O’Grady, barrister
