High Court: Local planning authorities can extend prior approval determination deadlines

The General Permitted Development Order 2015 (“GPDO”) requires that developers must apply to LPAs for determination as to whether prior approval is required for certain aspects of development, before development can begin. In such cases, LPAs must determine applications according to statutory deadlines. The application of these time limits has however been a point of debate in recent case law.

In the recent case of Gluck v Secretary of State for Housing, Communities and Local Government and another Mr Justice Holgate decided against the courts’ previous decision on the time limits, which was decided only last year (see R on the Application of Warren Farm (Wokingham) Limited v Wokingham Borough Council). In this recent case Holgate J concluded that any of the prior approval time periods specified either in Schedule 2 or in Article 7 of the GDPO are capable of being extended by  agreement between the applicant and the LPA in writing. The case is a welcome ruling for LPAs and developers seeking flexibility on the time limits within which an LPA must determine applications for prior approval.

The legal background

Article 3(1) and Schedule 2 GPDO grant permitted development rights for the classes of development listed in the Schedule. Article 3(2) then caveats this by subjecting the permission to any of the relevant exceptions, limitations or conditions in Schedule 2, including applying for prior approval for specific permitted rights before development can begin. Article 7 requires LPAs to respond to applications within the following time frames:

  1. the period specified in the relevant provision of Schedule 2 (which are particular to each permitted development right);
  2. 8 weeks beginning with the day immediately following that on which the application is received by the authority; or
  3. a longer period agreed between the parties.

The factual background

The case involved the claimant developers’ two applications to Crawley Borough Council to determine whether its’ prior approval was required for a proposed change of use from office to residential. Under Schedule 2, Part 3, Class O of the GDPO, such approval is required. The plan was to convert the offices into 75 flats. The application was made on 5 March 2018 and the expiry for determining it fell on 1 May 2018, which the council missed (issuing decisions on 8th and 11th May) on the basis that they believed that an extension had been formally agreed by the parties. The applicant appealed this decision, on the basis that an email exchange with the Council did not constitute an agreement.

The claimants relied on the Warren Farm case in which the court decided that the third limb under Article 7, detailed above, only applies to circumstances where the parties are expecting an 8 week turnaround for determination. As the parties were working to a different deadline prescribed by Schedule 2, applying Warren Farm meant that an extension was not permitted. Further, if the relevant period had expired without a decision being made, the development could commence as described in its application insofar as it complied with the GDPO.

The decision

In Gluck Holgate J quashed this precedent and dismissed the claimants’ appeal. In his view, an extension could be made to both Article 7 and Schedule 2 deadlines, and limiting this option to the latter could lead to rushed decisions and the potential for subsequent appeals. He also confirmed that whilst time extension agreements need to be in writing, an email (rather than say, a formal written contract) would suffice.

This decision will be important for both local authorities and applicants. It confirms that where both parties wish to agree an extension, for example to enable the production of further evidence or to facilitate consideration of technical issues, the statute permits them to do so.

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