Dec 21
Article 7 of the Town and Country Planning (General Permitted Development) (England) Order 2015 provided at the material time: “Where, in relation to development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval, an application has been made to a local planning authority for such approval or a determination as to whether such approval is required, the decision in relation to the application must be made by the authority— (a) within the period specified in the relevant provision of Schedule 2, (b) where no period is specified, within a period of eight weeks beginning with the day immediately following that on which the application is received by the authority, or (c) within such longer period as may be agreed by the applicant and the authority in writing.”
Paragraph W(11) of Part 3 of Schedule 2 to the 2015 Order provided at the material time: “… (11) The development must not begin before the occurrence of one of the following— ... (c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”
The claimant applied to the local planning authority for a determination as to whether prior approval was required for proposed changes of use from office to residential on two sites pursuant to Class O in Part 3 of Schedule 2 to the 2015 Order, in connection with the claimant’s plans to convert the premises to apartments. The planning authority issued decision notices refusing the applications several days after the expiry of the 56-day time period specified in Schedule 2 for determining the applications. The claimant appealed against the refusal contending that the time period had not been extended, because there had been no agreement to an extension in writing, and that accordingly under the 2015 Order the development was deemed to have been permitted. The inspector appointed by the Secretary of State found that a verbal agreement to extend the time period, evidenced by an e-mail, had been reached between the parties so that permission was not deemed to have been granted, and he dismissed the claimant’s appeal on the merits. The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash that decision on the grounds: (i) that the provision for an extension of time in limb (c) of article 7 applied only as an alternative to the default eight-week decision period under limb (b), applicable in cases where prior approval was an absolute requirement, and did not provide an alternative to the period specified in Schedule 2 for cases under limb (a), where the planning authority had to determine whether such approval was required in the particular case, the Schedule 2 period being incapable of extension by agreement or otherwise; and (ii) that, in any event, any extension to the time period required an agreement by both parties in writing and a verbal agreement evidenced by an e-mail was insufficient for that purpose. The judge upheld the decision of the inspector, holding that the provision for agreeing an extension applied to all prior approval procedures, with article 7 containing three limbs which were all alternatives to each other. Accordingly, the 56-day period mentioned in paragraph W(11)(c) could be extended by agreement pursuant to article 7(c) of the 2015 Order and, on the facts, it had been.
On the claimant’s appeal—
Held, appeal dismissed. (1) Article 7(c) of the 2015 Order provided an alternative to article 7(a) as well as article 7(b) and, hence, the 8-week period specified in paragraph W(11)(c) of Part 3 of Schedule 2 could be extended by agreement under article 7(c). Read naturally, article 7 meant that time might be extended pursuant to article 7(c) either where a period was specified in Schedule 2 or where the default 8-week period for which article 7(b) provided was applicable. Were it otherwise and sub-article (c) of article 7 only applied as an alternative to sub-article (b), then article 7(c) would not have warranted a separate sub-article: since sub-article (c) would merely represent a qualification to sub-article (b), the two could (and surely would) have been combined. The claimant’s construction of article 7 was also hard to reconcile with the existence of article 7(a): the periods specified in Schedule 2 to which article 7(a) referred were of course anyway so specified so it was difficult to see the need for article 7(a) unless article 7(c) was meant to apply to it. The definition of “deemed prior approval provision” given in article 7ZA underlined the primary role of article 7: it was treated as governing when development could begin, albeit that it cross-referred to Schedule 2. Furthermore, it made sense that periods specified in Schedule 2 should be capable of extension under article 7(c), otherwise it would be impossible to extend such a period even where both a developer and the local planning authority wanted to do so. It was easy to envisage circumstances in which a developer and the local planning authority might both think it desirable that the 56-day period specified in paragraph W(11)(c) should be extended. The judge’s interpretation of article 7(c) allowed the scheme to work efficiently and sensibly for the mutual benefit of developer and local planning authority. It prevented a local planning authority having to refuse an application because the time period was running out and a further application needing to be made with additional information. The possibility of extension under article 7(c) would not prejudice developers as time could not be extended without their agreement (paras 28–32, 48, 49, 55).
(2) In the context of article 7(c) of the 2015 Order, it was not necessary to insist that an agreement to extend time limits should be made, and not just evidenced, in writing. Article 7(c) demanded no more than that an applicant and the local planning authority each agreed in writing to a longer period. An agreement made in writing would of course meet that requirement, but that was not a necessity. It would be sufficient for the applicant and the local planning authority both to have evidenced in writing an agreement they had made orally. On analysis, there had been an agreement between the parties in the present case to extend the 56-day time limit in accordance with article 7(c) which had been duly acknowledegd in writing by or on behalf of both the claimant and the local authority (paras 36–37, 41–46, 48, 49, 55).
Per Newey LJ. Article 7(c) is applicable only where a longer period has been “agreed by the applicant and the authority in writing” . Read naturally, that signifies that—as in fact article 7(c) says in terms—a longer period must have been agreed by the applicant and the authority (ie both of them) in writing. That can be achieved either by a written agreement between the applicant and the authority or by written evidence emanating from each (para 39).
Per Hickinbottom and Henderson LJJ. Article 7(c) requires no more than for the agreement to be evidenced in writing, and there should be no gloss on it to require, as a matter of law, that that evidence must be in the particular form of writing emanating from or on behalf of each of the applicant and the authority. On a natural reading of the words in article 7(c), “in writing” does not refer to “the applicant and the authority” but to “agreed”; so that the relevant phrase is properly construed as “agreed (i) by the applicant and the authority (ii) in writing” (paras 51, 56–57).
Philippa Jackson (instructed by Asserson) for the claimant.
Charles Streeten (instructed by Treasury Solicitor) for the Secretary of State.
The local authority was not represented.