CASE UPDATE: Can parties agree to extend time of determination for prior approval applications?

Permitted development rights are simpler developments which do not require a formal application for planning permission. However, prior to the start of these types of development, legislation sometimes requires the applicant to go through a prior approval process.

Prior approval procedures explained

The purpose of prior approval processes is to enable local planning authorities to check certain details and impacts of specified categories of permitted development before development is commenced, for example noise, odour or highway impacts. If these impacts exceed a certain level or the details are unsatisfactory from a planning point of view, prior approval is refused, the applicant cannot rely on the permitted development right and has to submit an application for full planning permission if he/she wishes to proceed with the development.

There are prior approval procedures for various categories of permitted development rights including those permitted changes of use contained in part 3 of the GDPO[1]. Article 7 of the main body of the GDPO sets a time limit of 8 weeks, or such longer period as agreed between the developer and the council, to determine the application. The prior approval procedures, contained within the schedule to the order, usually include a ' deemed prior approval provision, which states that if the LPA does not make a decision on the prior approval submission within a certain time period, the applicant is entitled to start the development.

Are the procedures compatible?

On 8 April 2019, HHJ Alice Johnson granted developers permission[2] to seek judicial review against the determination of a Class Q prior approval application after the 56-day period set out in paragraph W(11) of Part 3 the GDPO[3]. The order granting permission[4] highlights the difficulties in reconciling article 7 with the deemed prior approval provisions in sub-paragraph W(11).

The various deemed prior approval provisions appear to be somewhat divorced from article 7 in two ways. Firstly, they make no reference to the ability in article 7 to extend the time limit for determining a prior approval application. So the applicant in the Wokingham case appears to have been justifiably wary of relying on article 7 to extend the time period for determination. The parties could have ended up with a situation where, even though the time period for determination has been extended by agreement, the application process is brought to an end because of a deemed approval. No amended details would have been agreed and the developer would have reverted to submitted details, even though it had agreed some sensible changes with the council[5].

Secondly, having looked through the various deemed prior approval provisions, the time periods which trigger the deemed approval do not tally with statutory time period for determination in article 7. In some cases it is 56 days (e.g. paragraph W in Part 3), which happens to be the same as eight weeks, but in others it is 42 days (e.g. paragraph A.4 of Part 1 relating to Part APD rights for development within the curtilage of a dwelling house) and still others, 28 days (see Part 6 which relates to development on agricultural land).

The Class Q example (conversions from agricultural to residential)

The prior approval processes have been around for a while and no doubt others have spotted these differences. Perhaps it is no coincidence that I have come across a similar problem in relation to the, sometimes tricky and somewhat controversial, Class Q permitted development rights. Both the main body of Class Q[6] and the prior approval processes in paragraph W of Part 3 are quite involved. Decisions a planning officer has to make in order to determine a Class Q prior approval application include:

  • Whether the building is an agricultural building.

  • What its curtilage is. In one case, the Council ran over the time limit because the officer thought the proposed curtilage was too small to accommodate parking and turning for the dwellings applied for and that there was a risk that the curtilage would be extended into the wider farming unit. That was before she had got to the Class Q conditions and the various impacts she needed to consider to make a decision on whether to grant prior approval.

  • Whether the building operations amount to a conversion or rebuilding.

  • When the building was last used solely for agricultural use in an established agricultural unit.

  • The existence and status of any agricultural tenancy or agricultural use of the land.

  • When the agricultural unit itself was established. This and the above two provisions exist to ensure that conversions are restricted to redundant agricultural units to avoid unnecessary erosion of much needed active agricultural land and protected areas like the green belt.

  • Consultation responses and representatives.

  • Finally, in relation to stated impacts[7], a decision as to whether prior approval is required, which is usually, thankfully, issued at the same time as the decision whether or not to grant prior approval.

The effect of extensions for determination of prior approvals

The purpose of permitted development rights, even those which require prior approval, is for developers to be able to start types of development without going through the full planning application process. At some point, lengthy or repeated extensions to the prior approval process begin to undermine this aim. However, understandably, planning officers want to get Class Q and other applications right to avoid granting the wrong development in the wrong place, or conversely spending their time and resources on needless appeals. It is, with the availability of article 7, tempting for a planning officer to try and extend the time to deal with a particular issue rather than refuse the application and start all over again with a planning inspector, with the threat of costs hanging over the Council’s head.

Conclusion

The Wokingham case will hopefully clarify the question raised by the permission for judicial review. However, it seems to me that there is an inherent inconsistency in having a deemed approval process that does not take into account the ability to extend the statutory time period for determination, and that what we ultimately need are some amendments to either the deemed prior approval provisions or to article 7.

 


[1] The Town and Country Planning (General Permitted Development) Order 2015

[2] https://cornerstonebarristers.com/cmsAdmin/uploads/warren-farm-high-court-of-justice-queens-bench-division-application-for-permission-to-apply-for-judicial-review-received-9-april-2019.pdf

[3]The Town and Country Planning (General Permitted Development Order) 2015

[4] https://cornerstonebarristers.com/cmsAdmin/uploads/warren-farm-high-court-of-justice-queens-bench-division-application-for-permission-to-apply-for-judicial-review-received-9-april-2019.pdf

[5]See paragragh W(12) of Part 3

[6]Just as a reminder the Class Q right is: a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order; or (b) development referred to in paragraph (a) together with building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class C3 (dwelling houses) of that Schedule.

[7]Transport and highways, noise impacts, contamination risks, flooding risks, whether the location or siting of the building makes the change of use “undesirable”