Developer Warren Farm (Wokingham) sought prior approval from Wokingham Borough Council in Berkshire for its proposed conversion of agricultural buildings to residential use under permitted development (PD) rights.
Decisions on prior approval must typically be made within 56 days. However, Wokingham Borough Council requested more time to consider the application before refusing the application on 30 January this year.
In April, the developer secured the High Court’s approval to challenge the council’s decision on the basis that a refusal of prior approval must be issued within 56 days.
In accepting the judicial review application, judge Alice Robinson wrote that the General Permitted Development Order (GDPO) 2015 may have been drafted with the intention of allowing extensions to the time limit for decisions to be agreed.
However, she said, "whether the language of the 2015 order is effective to achieve that intention is another matter and the contrary is arguable".
The High Court has this week ruled in favour of the developer.
Ashley Bowes, of Cornerstone Barristers, which represented Warren Farm (Wokingham), said the claim "turned on the interplay between Article 7(c) of the GPDO (which contemplates an extension of time) and Schedule 2, Part 3, Class V, paragraph W(11) GPDO, which makes no provision for an extension".
In upholding the company's case, Judge Mark Ockelton QC said that Bowes' interpretation of the relevant parts of the GPDO would benefit "good administration."
"Where the legislator has 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 is constrained to act promptly if it wishes to act at all," the judge said.
"The effect of time passing without a decision is that the development can proceed."
Bowes' reading of the GPDO would also "promote certainty", and the judge observed: "Where a positive effect can be the result of inaction, it is better if the period of inaction that will have that effect is subject to as little variation as possible."
And he concluded: "Where a period is specified, the deemed grant of planning permission takes place at the end of that period, so that the authority's decision must be before that. If no period be specified, the deemed grant takes place only when a decision is made."
In overturning the council's refusal of prior approval, the judge ruled that it had no power to do so.
"The deemed grant of planning permission took place nearly three weeks earlier, on 10 January 2019," he concluded.
Bowes said: "The judgment is essential reading for all those involved with prior approval applications.
"Where the GPDO prescribes a period of time in which a decision as to whether prior approval is required, the council must make their determination within that timescale or else the applicant will have gained a deemed grant of planning permission."
Permitted development rights for agricultural to residential conversions were extended in April.
A Planning analysis of agricultural to residential conversions revealed earlier this year that three of the five councils with the highest numbers of applications are in the South West of England.
R on the Application of Warren Farm (Wokingham) Limited v Wokingham Borough Council. Case Number: CO/1017/2019