Court of Appeal judgment about the legal effect of successfully completing the prior approval process (16/06/2017) …

Introduction:

The following Court of Appeal judgment about the legal effect of successfully completing the prior approval process was handed down on 16/06/2017:

  • Keenan v Woking Borough Council, and Secretary of State for Communities and Local Government [2017] EWCA Civ 438 (16 June 2017).
    [Note: The transcript for the above Court of Appeal judgment is available as a free-to-view transcript on the Bailii.org website (link)].

In my opinion, the above judgment supports the interpretation that the successful completion of the prior approval process does not necessarily mean that the proposed development would be permitted development.

Background information:

The above Court of Appeal judgment relates to several appeal decisions, for which the lead case was "APP/A3655/C/14/2217529" (link). In March 2012, the applicant [Mr Keenan] submitted an application for prior approval for the construction of a hardcore track under Part 6 Class A of the GPDO 1995. The Inspector for the above appeal described the situation as follows:

"8. The Appellants say such an application was made and that, following the expiry of 28 days, having not had a determination or notification from the Council as to whether such approval was required, they were entitled to commence the development as was set out at para.A.2(2)(iii)(cc). The Council, on the other hand, says the application was invalid because the development did not fall within Class A of Part 6 of Schedule 2 in the first place."

After the expiry of the above 28 day period, the applicant constructed the track, and the Council served an enforcement notice (i.e. requiring the removal of the track). The above appeal was against this enforcement notice.

The Inspector for the above appeal concluded that the development didn't fall within the scope of Part 6 Class A (or Part 7 Class A) of the GPDO 1995 on the basis that the development wasn't "reasonably necessary" for the purposes of agriculture (or forestry). The Inspector then stated the following:

"21. I have noted the Appellants explanation that the track was commenced because no determination or notification from the Council was received within the specified period. However, that cannot make the development permitted when it does not fall within the remit of Part 6 or Part 7 in the first place. Nonetheless it would have assisted if a timely explanation from the Council as to why the application could not be entertained could have been provided to pre-empt abortive works being undertaken. Furthermore I have no idea why the fee was not returned when the application was deemed to be invalid. However, these are matters for the parties involved and are not before me. They cannot influence my conclusion which is that the proposed works did not fall within the description of development permitted by Part 6 or Part 7."

The judge for the above Court of Appeal judgment described the key issue as follows:

"5. The single issue in the appeal is whether, contrary to the judge's conclusion, the effect of the council's failure to respond within 28 days to an application made by Mr Keenan for a determination as to whether its prior approval would be required for the "siting and means of construction" of the track was that the track had planning permission, even if it was not within the scope of the "permitted development" provisions for buildings or operations for agriculture under Class A of Part 6 of Schedule 2 to the GPDO 1995 (or for forestry under Class A of Part 7)."

In my opinion, the above question can also be expressed as follows:

  • In relation to Part 6 Class A or Part 7 Class A of the GPDO 1995, if an application for prior approval is submitted for works that do not fall within the scope of permitted development, and the Council fails to issue a decision within the specified period, then do the works become permitted development?

In my opinion, the above question also relates to the following (wider) question:

  • Does the successful completion of the prior approval process mean that the proposed development would (definitely) be permitted development?

Key quotes from the above Court of Appeal judgment:

The key paragraphs within the above Court of Appeal judgment are the following [note: my emphasis in bold]:

"32. The true analysis, in my view, is this. Under the GPDO 1995, and now under the Town and Country Planning (General Permitted Development) (England) Order 2015, various kinds of development have been authorized as "permitted development". Some, though not all, of the classes of development described as "permitted development" in Schedule 2 to the GPDO 1995 were subject to particular conditions, specified class by class. This was expressly contemplated in article 3(2). So too was the provision, again class by class, of any relevant exceptions and limitations. We are concerned in this case with two classes of "permitted development", Class A of Part 6, and Class A of Part 7, and in particular with development consisting of "the formation … of a private way", neither of which was unconditional. Both were subject to relevant conditions.

33. Crucially, the grant of planning permission itself came about not through the procedure to be followed under article 3(2) and the specific provisions for "Conditions" in either class, but through the operation of article 3(1) and the provisions for "Permitted development" in that class. To be "permitted development" in the first place, the development in question had to come fully within the relevant description of the "Permitted development" provided for within each class. If it did not, the provisions for "Conditions" applicable specifically and only to "permitted development" as thus defined could not relate to it. The operation of the provisions for "Conditions" did not, and could not, apply to other forms of development outside that particular class of "Permitted development". Nor did they, or could they, have the effect of enlarging that class. The conditions applied only to development belonging to the class, and not, in any circumstances, to development of whatever kind outside it.

34. If taken out of its proper context, the provision in paragraph A.2(1) in Class A of Part 6 – mirrored in paragraph A.2(1) in Class A of Part 7 – stating that "[development] is permitted by Class A subject to the following conditions …" might be construed, wrongly, as embodying a grant of permission under Class A. But when read in its context, it clearly does not do that. Its meaning, and relevant effect here, is simply that development which is permitted development under Class A, and within the scope of paragraph A.2(2), is subject to the specified conditions.

35. It follows that for the provisions relating to conditions in paragraph A.2(2)(i) in Class A of Part 6, or those in paragraph A.2(1)(a) to (f) in Class A of Part 7, to come into play, the development proposed had to fall squarely within the description of "Permitted development", in the relevant class.

36. The condition in paragraph A.2(2)(i), which required the developer, before beginning the development, to apply to the local planning authority for a determination as to whether its "prior approval" would be required to the "siting and means of construction" of the "private way", did not impose on the authority a duty to decide whether or not the development in question was, in fact, permitted development under Class A – albeit that the guidance in paragraph E14 of Annex E to PPS7 might have been read as encouraging it to do so. Nor did it confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. The sole and limited function of this provision was to enable the local planning authority to determine whether its own "prior approval" would be required for those specified details of that "permitted development". If the authority were to decide that its "prior approval" was not required, the condition would effectively have been discharged and the developer could proceed with the "permitted development" – though not of course with any development that was not "permitted development". If, however, the authority failed to make a determination within the 28-day period, again the developer could proceed with the "permitted development", but again not with any development that was not "permitted development". The developer would not at any stage have planning permission for development that was not, in fact, "permitted development"."

Analysis of the above Court of Appeal judgment:

In my opinion, the main conclusion of the above Court of Appeal judgment is as follows:

  • In relation to Part 6 Class A and Part 7 Class A of the GPDO 1995, if an application for prior approval is submitted for works that do not fall within the scope of permitted development, and the Council fails to issue a decision within the specified period, then the works do not become permitted development.

In my opinion, the above conclusion is also applicable to the following additional situations:

  • 1) In relation to Part 6 Class A and Part 6 Class E of the GPDO 2015 (i.e. the post-15/04/2015 versions of Part 6 Class A and Part 7 Class A of the GPDO 1995).
  • 2) In the case where the Council issues a decision (i.e. within the specified period) stating that prior approval is not required.
  • 3) In the case where the Council issues a decision (i.e. within the specified period) that grants prior approval.
  • 4) In relation to (say) Part 1 Class A and Part 3 Classes C, J, M, N, O, P, PA, Q, R, and S of the GPDO 2015.

As such, in my opinion, the above judgment supports the interpretation that the successful completion of the prior approval process (i.e. under any Class of the GPDO) does not necessarily mean that the proposed development would be permitted development.

In my opinion, the above point "1)" is supported by the above judgment because there are no significant differences between Part 6 Class A and Part 7 Class A of the GPDO 1995 versus Part 6 Class A and Part 6 Class E of the GPDO 2015 (respectively).

In my opinion, the above point "2)" is supported by the following sentence within paragraph 36 of the above judgment:

"If the authority were to decide that its "prior approval" was not required, the condition would effectively have been discharged and the developer could proceed with the "permitted development" – though not of course with any development that was not "permitted development"."

In my opinion, the above points "3)" and "4)" are indirectly supported by a number of sentences within the above judgment, particularly the following sentences within paragraph 33:

"To be "permitted development" in the first place, the development in question had to come fully within the relevant description of the "Permitted development" provided for within each class. If it did not, the provisions for "Conditions" applicable specifically and only to "permitted development" as thus defined could not relate to it. The operation of the provisions for "Conditions" did not, and could not, apply to other forms of development outside that particular class of "Permitted development". Nor did they, or could they, have the effect of enlarging that class. The conditions applied only to development belonging to the class, and not, in any circumstances, to development of whatever kind outside it."

However, the above points "3)" and "4)" are (potentially) debatable. In particular, for the above point "4)", it could be argued that the above judgment is not applicable to (say) Part 1 Class A and Part 3 Classes C, J, M, N, O, P, PA, Q, R, and S of the GPDO 2015, because for all of the latter Classes there's a specific provision that allows the LPA to refuse the application for prior approval where either 1) the proposed development would not be permitted development or 2) the applicant has provided insufficient information to establish that the proposed development would be permitted development. For example, Part 3 paragraph W(3) of the GPDO 2015 states the following:

"(3) The local planning authority may refuse an application where, in the opinion of the authority—
(a) the proposed development does not comply with, or
(b) the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with, any conditions, limitations or restrictions specified in this Part as being applicable to the development in question."

Indeed, it could be argued that the following sentence within paragraph 36 of the above judgment shows that it's not applicable to such other Classes for the above reason:

"The condition in paragraph A.2(2)(i), which required the developer, before beginning the development, to apply to the local planning authority for a determination as to whether its "prior approval" would be required to the "siting and means of construction" of the "private way", did not impose on the authority a duty to decide whether or not the development in question was, in fact, permitted development under Class A – albeit that the guidance in paragraph E14 of Annex E to PPS7 might have been read as encouraging it to do so."

However, notwithstanding the above contrary arguments, in my opinion the above judgment is applicable to (say) Part 1 Class A and Part 3 Classes C, J, M, N, O, P, PA, Q, R, and S of the GPDO 2015, particularly noting the judge's comments that the conditions of a Class can not have the effect of enlarging that Class.

The implications of the above Court of Appeal judgment:

As stated above, in my opinion, the above judgment supports the interpretation that the successful completion of the prior approval process does not necessarily mean that the proposed development would be permitted development. Indeed, as noted within the "ISSUE 1C - Update 3" section of the "Part 1 of the GPDO – Larger Rear Extensions – Guide" document, there's a significant difference between obtaining an LDC (proposed) versus successfully completing the prior approval process. This is because, for the former, section 192(4) of the TCPA 1990 (link) sets out that the lawfulness of the proposed development shall be "conclusively presumed”, whereas for the latter there's no equivalent provision in planning legislation.

In other words, even after successfully completing the prior approval process, it appears that the only way for a developer to be certain (i.e. before starting works) that the proposed development would (definitely) be permitted development is to obtain an LDC (proposed). However, as noted within the "ISSUE 6C" section of the above document, the developer would need to submit the application for an LDC (proposed) after successfully completing the prior approval process (i.e. rather than submitting both applications at the same time). In other words, the developer would need to first successfully complete the prior approval process (i.e. 28/42/56 days), and then submit an application for an LDC (proposed) (i.e. 56 days).

How the above Court of Appeal judgment relates to appeal decisions:

The issue subject of the above Court of Appeal judgment is covered by the topic titled "The legal effect of successfully completing the prior approval process" within each of the following documents:

At present (July 2017), the above topic within the above documents currently contains 19 appeal decisions that support the following conclusion:

  • This appeal decision states, or implies, that the successful completion of the prior approval process is not legally equivalent to confirmation that the proposed development would be lawful (i.e. confirmation that it would comply with all of the other limitations and conditions of [the Class]).

In contrast, the above topic within the above documents currently contains only 1 appeal decision that supports the following (opposite) conclusion:

  • This appeal decision states, or implies, that the successful completion of the prior approval process is legally equivalent to confirmation that the proposed development would be lawful (i.e. confirmation that it would comply with all of the other limitations and conditions of [the Class]).

In other words, the above Court of Appeal judgment supports the conclusion of most of the appeal decisions (within the above documents) that have dealt with this issue so far.

Notes:

  • The Planning Jungle website does not normally summarise court judgments. This is because a number of other websites already provide such a service, whereas the Planning Jungle website primarily summarises appeal decisions (particularly "LDC Appeals" relating to Part 1 of the GPDO). For such appeal decisions, where an Inspector refers to a court judgment within their decision notice, then this will normally be shown within the summary on the Planning Jungle website (because each summary normally includes quotes from the decision notice).
  • In accordance with the "Important Disclaimer" within the "Planning Jungle Limited - Membership Terms and Conditions", please note that the information within this post (like all of the information provided by Planning Jungle Limited) does not constitute legal or other professional advice, and must not be relied on as such.