Legal Viewpoint: Keeping an eye on the time in prior approval applications

The High Court has confirmed that local planning authorities do not have the power to extend the determination period for prior approval applications where the General Permitted Development Order (GPDO) specifies a deadline for determination.

If the prescribed deadline is missed, even if a time extension is agreed, prior approval is deemed to have been given and planning permission granted.

The case followed a developer’s request for prior approval from a Berkshire authority to convert a barn into a house under class Q, part 3, schedule 2 of the GPDO. The application was received by the council on 15 November 2018. On 8 January 2019, it asked for longer to determine the application. The developer queried the power to agree an extension, but agreed anyway. On 30 January 2019, the council refused to grant prior approval and the developer challenged its decision.

The challenge hinged on the interpretation of the GPDO. For development permitted under schedule 2, including class Q, article 7(a) of the order requires a prior approval application to be determined within the timeframe specified in the relevant schedule 2 provision. Where no period is specified, article 7(b) requires a decision within eight weeks from receipt of the application. Article 7(c) requires determination within such longer period as may be agreed in writing between the authority and the applicant.

Developers must not commence development permitted under class Q unless the authority confirms that prior approval is not needed, prior approval is granted or, most importantly, 56 days has elapsed since receipt of the application without prior approval being given or refused. In essence, class Q development has a specified deemed approval timeframe of 56 days and is, therefore, caught by article 7(a).

The High Court held that article 7(c), allowing a time extension by agreement, is only to be read as an alternative to article 7(b) and not to article 7(a). In other words, the determination period can only be extended in situations when the GPDO doesn't specify a timeframe. Any alternative interpretation would have made a mockery of the restriction on commencement of development in the GDPO.

The court held that as the council's decision was made after 10 January 2019 – when the 56 day-period expired – its decision to refuse prior approval was unlawful and had to be quashed. The developer was deemed to have been granted planning permission on 10 January 2019.

Developers and authorities need to watch which types of prior approval applications have a defined determination period. Local authorities need to avoid inadvertently handing planning permission to a developer for a development they intended to refuse. Developers, meanwhile, need to avoid accepting a refusal after the deadline has expired.

R (Warren Farm (Wokingham) Ltd) v Wokingham Borough Council; Date: 31 July 2019; Ref: [2019] EWHC 2007 (Admin)

Caroline Stares is an associate at Hogan Lovells International LLP

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