Prior Approval - the legal intricacies of the lockdown

In August 2019, my colleague Nicola Gooch gave a very quick round-up of some recent case law from the Planning Court.  This was further complicated by a contradictory court case in her Valentines Day Massacre blog.  Last week Steve Quartermain issued his last Chief Planners letter to the public / planning industry.

Mr Quartermains fourth paragraph under the heading COVID-19 Advice - Decision Making drew my eye and reminded me of Nicola's blog, now 6 months old and contradicted it seems just last month.

We recognise that there may be circumstances where a local planning authority is unable to consider a permitted development prior approval application within the deemed consent period. It remains important to prioritise these so important economic activity can continue. In these exceptional circumstances the authority can, if necessary, seek to agree an extended approval date with the applicant. Where agreement cannot be reached an authority may need to consider whether prior approval is refused if the application cannot be considered with the requisite attention.

The case Nicola so neatly summarised was R oao Warren Farm (Wokingham) Limited v Wokingham Borough Council [2019] EWHC 2007 (Admin).  The question at the centre of the judgment was a very simple one - can a Council and an applicant agree to extend the time within which a prior approval decision is to be made under the General Permitted Development Order?  The official high-court approved answer: No. 

The case centred around an application to convert a barn into a dwelling under Class Q of the GDPO.  On 12 November 2018, the applicant submitted a prior approval application to the Council in the form required by paragraph W(2), which the defendant received on 15 November.  The 56 days period within which the Council could make a decision about the application expired on 10 January 2019.  For reasons that are set out in the Judgment the Council and the applicant agreed an extension of time to determine the application, leading to the Council refusing the application after the 10 January deadline. The applicant judicially reviewed the refusal of the prior approval application and, perhaps surprisingly on the facts, if not on the actual text of the regulations, won. As such, it is now beyond all doubt that you cannot agree extensions of time to determine prior approval applications.

The 56 day time limit is sacrosanct.

R on the Application of Mr J.J. Gluck v Secretary of State for Housing, Communities and Local Government & Anr. Case Number: CO/2292/2019 on the contrary took the view that Article 7 must be read as if limb (c) is an alternative to both limbs (a) and (b). The consequence is that any of the prior approval time periods specified either in Schedule 2 or in Article 7 is capable of being extended by an agreement by the applicant and the LPA in writing. The decision in Warren Farm should not be followed 

It is somewhat surprising therefore that the Chief Planners advice is that: -

In these exceptional circumstances the authority can, if necessary, seek to agree an extended approval date with the applicant. 

Having checked the plethora of new legislation being brought forward quite rapidly in response to the coronavirus pandemic,*& whilst an amendment has already been laid for a change to PD to allow pubs and restaurants, in the most part, to allow takeaways,*% there does not appear anything to change the regulations on which the High Court reported last August.  

Mr Quartermains text does not rule on the issue; with two contradictory views given in the High Court the only ruling would be given either by the Court of Appeal or by an express change to the regulations.  

The letter seems to sit between the two views.  The 56 day time limit is not sacrosanct because he is saying that the exceptional circumstances justify a departure.  However that does not wholly support the Gluck case either as in the Mr Quartermains letters an extension is only possible due to the exceptional circumstances not as of right.

We have seen plenty of case law triggered in the last decade by the (then coalition) government (in particular) attempting to change the law by policy or other ministerial statement.  These are not easy times and a lot of law is being released quickly but I am not aware of the Chief Planner being able to amend Regulations by quarterly letter even if he does raise a very sensible point.  The High Court made that clear less than 6 months ago; even if it then contradicted itself just last month. 

Where agreement cannot be reached an authority may need to consider whether prior approval is refused if the application cannot be considered with the requisite attention.

It is an unhappy conclusion that any LPA who cannot determine prior approvals in the timescale should refuse them.

Plea.

The same letter ambitiously still projects a Planning White Paper for this Spring.  There are already a number of loose ends coming out of how the planning system is able to respond to lockdown and my plea would be to move rapidly away from any ambitious White Paper to a wrap up set of Regulations which can address the loopholes of common sense and give the industry the tools to work through, where possible, the various issues likely to come from the current close down in the coming months; see for example Nicola's post today on CIL and s.106.

*& - massive virtual round of applause to whoever is busy drafting this.

*% - more on this as some peculiar loopholes seem to have come to the fore already.

In these exceptional circumstances the authority can, if necessary, seek to agree an extended approval date with the applicant. ”