Town and country planning – Permitted development – Prior approval – Claimant applying to local planning authority to determine whether prior approval required – Appellant local authority refusing applications out of time – Defendant secretary of state dismissing appeal – Claimant applying to quash decision – Whether possible to extend expired time period – Whether extension requiring agreement of both parties in writing – Application dismissed
The claimant developer applied to the local planning authority, under Class O of Part 3 in Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, for a determination whether prior approval was required for proposed changes of use from offices to residential premises on two sites in Stephenson Way, Three Bridges, Crawley. Schedule 2 prescribed the time limits for making a determination. In the absence of a prescribed time limit, article 7 of the 2015 Order provided that a determination should be made within eight weeks of receipt of the application, or longer if agreed in writing by both parties. The authority issued decision notices refusing the applications out of time.
The claimant appealed to the first defendant secretary of state against that refusal contending that the time period had not been extended because there had been no agreement to an extension in writing pursuant to article 7(c) of the 2015 Order. Therefore, the development was deemed to have been permitted. An inspector appointed by the first defendant dismissed the claimant’s appeal. He decided that there was e-mail evidence of an agreement and refused the application for prior approval on its merits.
The claimant applied to quash that decision under section 288 of the Town and Country Planning Act 1990. The inspector had reached his decision before the judgment in R (on the application of Warren Farm (Wokingham) Ltd v Wokingham Borough Council [2019] EWHC 2007; [2019] PLSCS 168 which decided that a time period specified in Schedule 2 to the 2015 Order for the determination of an application for prior approval was incapable of being extended; once it had expired without a decision being made the applicant was entitled to proceed with its development.
The claimant distinguished cases where Schedule 2 granted permitted development rights subject to an absolute requirement for prior approval, and cases like the present where it was for the authority to determine whether prior approval was required. He argued that, in the latter cases, Schedule 2 specified a time period for determining prior approval with no reference to the possibility of an extension of time. The defendant argued that Warren Farm was incorrect and the extension of time provision applied to all prior approval procedures.
Held: The application was dismissed.
(1) It was plain from the opening words of article 7 that it applied to any development permitted by Schedule 2 “which is expressed to be subject to prior approval”. Both the 1990 Act and the 2015 Order treated “prior approval” as embracing development rights where prior approval was an absolute requirement in all cases and those which were subject to a determination by the local planning authority whether such approval was required in each case. It was clear from the language of article 7 preceding limbs (a) to (c), that the second group of permitted development rights fell within its ambit and the description in the title “prior approval applications”.
The immediately following words in article 7 “the decision in relation to the application must be made by the authority” had to apply to both types of decision-making, to determine whether prior approval was required or whether such approval should be granted. When the straightforward language used in article 7 was read as a whole, it was clear that that provision was structured so that limb (c) applied to decision-making on both types of prior approval procedure, whether they fell entirely within limb (a) or within limb (b) (or both).
(2) The language of the 2015 Order did not require the court to conclude that limb (c) was an alternative only to limb (b). The specification of a time period in Schedule 2 for a decision on whether prior approval was required, linked to a restriction on commencement of development, was not incompatible with the possibility of extending time under limb (c). Limb (b) laid down a finite period of eight weeks for decision-making, but that was to be read together with, and subject to, any extension under limb (c). The language of limb (a) did not preclude an extension of time under limb (c) simply because the time period was specified in Schedule 2 rather than in article 7. Nor was any such extension precluded because the time period was used to control when development might lawfully commence. Permitted development rights granted under Schedule 2 were expressly subject to other provisions of the 2015 Order including article 7: Warren Farm not followed.
If the legislature’s intention had been to treat time limits specified in Schedule 2 as operating independently, and to be incapable of extension by agreement, which would be the effect of the claimant’s argument, there would have been no need to include limb (a) or to refer to those time limits in article 7 when the 2015 Order was enacted.
(3) Article 7 did not seek to impose the formalities required for property law transactions. Article 7(c) was concerned with documentary evidence of the existence of an agreement and did not require a qualifying agreement to be made entirely in writing. The need for “writing” did not refer to legal formalities, such as requirements for the carrying out of property or contractual transactions. The context for article 7(c) was not conveyancing or even the formation of contracts. It was to do with administrative decision-making in the public interest. Limb (c) imposed a requirement for writing so as to avoid uncertainty or disputes as to whether an extension of time had been agreed.
It might be good practice for e-mails or correspondence to be sent by both the applicant and the authority to each other setting out their agreement to an extension of time, or for them both to sign a single document in which they expressed their agreement to an extension. But limb (c) did not necessarily insist upon an agreement being expressed by both parties in writing. It sufficed that an agreement to extend the time for determination be made verbally but then evidenced or recorded subsequently in writing from one party.
Philippa Jackson (instructed by Asserson) appeared for the claimant; Charles Streeten (instructed by the Treasury Solicitor) appeared for the defendant; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
