How a judgment allowing prior approval decision deadline extensions affects councils

The High Court has reversed a previous judgment which said that councils are unable to extend prior approval decision deadlines, but observers say the impact of the earlier ruling may still be felt.

London's Royal Courts of Justice
London's Royal Courts of Justice

Last month, a High Court judge threw out a legal challenge to a planning inspector’s decision to back a council’s refusal of prior approval for the change of use of two office blocks into 75 homes. The judge came to a different conclusion to another High Court judge, who last year ruled that councils have no power to extend prior approval decision deadlines.

In last year’s case, Warren Farm (Wokingham) Limited v Wokingham Borough Council, the judge ruled that Wokingham Council acted unlawfully by agreeing an extension to a prior approval application for a barn conversion even though the applicant had agreed to the authority's request for one. The applicant successfully challenged the council's refusal of the application on the basis that it was determined beyond the usual 56-day limit stated n the General Permitted Development Order (GPDO) 2015. In last month’s case, where another extension had been agreed between applicant J.J. Gluck and Crawley Borough Council, the judge ruled that the council had acted lawfully.

Explaining his decision, Mr Justice Holgate said he "had the benefit of much fuller argument than the court received in Warren Farm". He added: "In the event, I find myself obliged to disagree, with the greatest of respect to the judge in that case, with the conclusions he reached" over the wording of the GPDO, which applied in both cases.

[Writing in a blog on the case,] planning barrister Charles Streeten, who represented the Ministry of Housing, Communities and Local Government, said: "This decision will be important for both local authorities and applicants. It re-establishes that where both parties wish to agree an extension, for example to enable the production of further evidence or to facilitate detailed consideration of technical issues, the statute permits them to do so."

Planning barrister Ashley Bowes of Cornerstone Barristers, who represented the Warren Farm applicant, said he was anecdotally aware that in the wake of the previous case, some councils had refused applications to make sure they were determined before the 56-day deadline, even where the applicant was willing to agree an extension. He said: "This judgment will immediately stop that happening because applicants and local planning authorities will now be able to agree on an extension in all cases."

However, Alice Davidson, associate director at planning consultancy Boyer, which also worked with the Warren Farm applicant, said that because both cases were heard in the High Court, the Gluck ruling potentially still carries some weight. However, she said: "The Gluck judgement sets out why the Warren Farm judgment should not be followed. Therefore, going forwards, any case wishing to rely upon the Warren Farm judgement would need to provide robust evidence as to why a different position should be come to."

Richard Crawley, programme manager at the Local Government Association's Planning Advisory Service said that even if the Warren Farm judgment is consigned to history, it had a positive effect on the process of prior approval. "After the judgment, a lot of councils decided they needed to tighten up on the way they dealt with such applications, to avoid getting into an area where they needed to discuss extensions, and those benefits will endure," he said.

Crawley Council originally refused the two applications for 75 flats on Stephenson Way on the grounds that traffic noise from remaining commercial businesses near the converted offices would impact on residents of the new flats. A statement from the council said: "We welcome this carefully considered judgement which reaches a correct and common sense conclusion that local planning authorities are able to agree an extension of time to determine this type of application. The judge also confirmed that we had an agreement in place to extend the 56-day period."

The council said it had previously introduced an Article Four direction preventing such office-to-residential conversions under permitted development rights on a separate business park in the town and was "now working to extend this to protect other commercial areas in Crawley".

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