Town and country planning – Prior approval – Extension of time – Appellant applying to second respondent local planning authority to determine whether prior approval required for development – Second respondent refusing applications out of time – First respondent secretary of state dismissing appeal – Appellant applying unsuccessfully to quash decision – Whether possible to extend expired time period – Whether extension requiring agreement of both parties in writing – Appeal dismissed
The appellant developer applied to the second defendant 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, West Sussex.
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 second respondent issued decision notices refusing the applications out of time.
The appellant appealed to the first respondent 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 respondent dismissed the appellant’s appeal as there was e-mail evidence of an agreement. The application for prior approval on its merits was refused. The appellant’s application to quash that decision was dismissed: [2020] EWHC 161 (Admin); [2020] PLSCS 20.
The appellant appealed. The issues for determination were: (i) whether the 56-day period mentioned in paragraph W(11)(c) of part 3 of schedule 2 to the 2015 Order could be extended by agreement pursuant to article 7 of the Order; and if so, (ii) whether that period was extended in the present case.
Held: The appeal was dismissed.
(1) The judge was right to consider that article 7(c) provided an alternative to article 7(a) as well as article 7(b); and that the eight-week period specified in paragraph W(11)(c) could be extended by agreement under article 7(c).
Read naturally, article 7 meant that time might be extended pursuant to article 7(c) either where a period was specified in schedule 2 or where the default eight-week period for which article 7(b) provided was applicable. The time periods for decision-making referred to in article 7 were integral to the conditions in schedule 2 which controlled when development might lawfully begin in reliance upon the prior approval deeming provision. If periods specified in schedule 2 were not capable of extension under article 7(c), it would be impossible to extend such a period even where both a developer and the local planning authority wanted to do so – for example, to allow the developer to supply further information or to hold discussions with the local planning authority or consultees.
Since paragraph O2 provided for a local planning authority to determine whether prior approval would be required as to “transport and highways impacts”, “contamination risks”, “flooding risks”, “impacts of noise” and “the provision of adequate natural light”, an application might raise technical issues calling for expert reports. Without an extension, a local planning authority might have to refuse an application because the 56-day period was running out and a further application would need to be made with additional information.
In contrast, an extension under article 7(c) allowed the scheme to work efficiently and sensibly for the mutual benefit of developer and local planning authority. The possibility of extension would not prejudice developers as time could not be extended without their agreement. Accordingly, the 56-day period mentioned in paragraph W(11)(c) of part 3 of schedule 2 could be extended by agreement pursuant to article 7.
(2) In a different context, the court might accept that the words “agreed… in writing” called for an agreement made in writing rather than one merely evidenced in writing. However, article 7(c) was not concerned with either property transactions or contractual relations. It was an aspect of the planning system, and the Court of Appeal had cautioned against the dangers of excessive legalism infecting the planning system: East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2017] EWCA Civ 893; [2017] PLSCS 144; [2018] PTSR 88 and St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643; [2017] PLSCS 196; [2018] PTSR 746 considered.
In the present context, it was hard to see how it could be thought necessary to insist that an agreement to extend should be made, and not just evidenced, in writing. An agreement made in writing would meet that requirement, but it was not a necessity. It would be sufficient for the applicant and the local planning authority both to have evidenced in writing an agreement they had made orally. It was common ground that e-mails could meet the requirements of article 7(c). Further, a relevant agreement had to be to a “longer period” which it was possible to identify.
(3) In the present case, an agreement had been reached between the appellant and the second respondent on both the principle and the duration of an extension, each ingredient being necessary in order to satisfy the words “such longer period as may be agreed”. Although the principle of an extension had been agreed in a telephone conversation, it was probable that the duration was not agreed until it had been proposed and implicitly accepted in an exchange of e-mails. In those circumstances, the agreement was clearly evidenced in writing by or on behalf of both parties.
(per Hickinbottom and Henderson LJ) Although it was not necessary to decide the point here, on a natural reading of the words in article 7(c), “in writing” did not refer to “the applicant and the authority” but to “agreed”. As a matter of law, the written evidence of an agreement might emanate from one party only. However, to avoid difficulties in the future, it would be good practice for both parties promptly to acknowledge in writing any agreement to extend time to which they had come.
Philippa Jackson (instructed by Asserson) appeared for the appellant; Charles Streeten (instructed by the Government Legal Department) appeared for the first respondent; the second respondent did not appear and was not represented.
Eileen O’Grady, barrister
