High Court judgment relating to article 7 of the GPDO (31/07/2019) …

Introduction:

The following High Court judgment relating to article 7 of the GPDO (i.e. the provision to agree a "longer period" for an application for prior approval) was handed down on 31/07/2019:

  • Warren Farm (Wokingham) Limited, R (on the application of) v Wokingham Borough Council [2019] EWHC 2007 (Admin) (31 July 2019).
    [Note: The transcript for the above High Court judgment is available as a free-to-view transcript on the Bailii.org website (link)].

The above judgment relates to the provision within article 7 of the GPDO for the applicant and the LPA to agree a "longer period" for an application for prior approval. In my opinion, the above judgment supports the interpretation that LPAs should not use this provision within article 7 of the GPDO.

Background information:

The above High Court judgment relates to an application for prior approval under Part 3 Class Q of the GPDO. The application was received by the LPA on 15/11/2018, and the 56 day period expired on 10/01/2019. On 08/01/2019, the applicant and the LPA agreed an extension of the time period to 31/01/2019.

For reference, article 7 of the GPDO, which is titled "Prior approval applications: time periods for decision", states the following [note: my emphasis in bold]:

"7. 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 8 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."

On 30/01/2019, the LPA issued a decision refusing prior approval. For this situation, the above judgment considered the question of whether the development would be prevented by the combination of article 7 of the GPDO and Part 3 paragraph W(11) of the GPDO. For reference, Part 3 paragraph W(11) of the GPDO states the following [note: my emphasis in bold]:

"(11) The development must not begin before the occurrence of one of the following
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or
(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."

Key quotes from the above High Court judgment:

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

"30. As it seems to me, all the difficulties envisaged and then avoided by Mr Williams [for the Defendant] arise if and only if article 7 has the meaning for which he contends. If article 7 is read in such a way that paragraph (c) is an alternative to paragraph (b) but not to paragraph (a), no such difficulties arise. That would mean treating cases where a period is specified differently from cases where a period is not specified. But there is every reason for a difference in treatment. Where no period is specified, there is no point at which, by the operation of the GPDR, inaction by the authority turns into a grant of planning permission. There is no equivalent of the 56-day period in paragraph W(11)(c): the condition imposed would no doubt be equivalent to paragraph W(11)(a) and (b) only. There is room here for the parties to agree a time for making the decision that will bring the waiting period to an end, without encroaching in any way upon a provision bringing the waiting period to an end in another way.

31. One can further see that this is right by considering article 7 on its own terms in the context of the rest of the GPDO. It is the provision that requires the authority to make a decision within a certain time. What time? Unless one is looking for difficulties, one would say (a) that where the expiry of a specified time has an effect that would make a subsequent decision nugatory, the decision must be made before the expiry of that time, but (b) in other cases, it is necessary to impose a time limit for a decision precisely because otherwise inaction by the authority would prevent the provisions of article 3 having their intended effect: if one of the requirements is to await a decision, and no decision is forthcoming, there is no grant of planning permission.

32. But this is exactly the area in which one would expect there to be scope for agreement between the parties. The legislator has not seen fit to appoint a particular time period in the particular circumstances; the condition can be met only by the authority making a decision; the default position imposed by article 7 is that the decision, which will bring the waiting period to an end, must be made within 56 days, unless the parties, presumably particularly the developer, who is the person affected by any delay, agree to an extension.

33. There is nothing untoward or particularly unusual in a set of rules that fix some time limits and make others subject to extension by agreement between the parties. The difference between the two sorts of time limit is particularly appropriate in the context of the process under consideration, because of the function of the GPDO in granting planning permission at the end of a specified period of time where such a time is specified, but otherwise only when the authority comes to make a decision.

34. There is of course a certain artificiality in the discussion: I was not shown any provision of the GPDO to which article 7(b) applies and it follows from the view that I have reached that if there is (at present) none, there is also no provision to which article 7(c) applies. But that does not impact on my conclusion. Where a period is specified, the deemed grant of planning permission takes place at the end of that period, so the authority's decision must be before that. If no period be specified, the deemed grant takes place only when a decision is made, and there is therefore scope for agreeing a time within which the authority has to make a decision. Article 7(c) is to be read as an alternative to article 7(b) only, not to article 7 (a).

35. It follows that the decision under challenge must be quashed as made without jurisdiction. The deemed grant of planning permission took place nearly three weeks earlier, on 10 January 2019."

Comments by the Planning Jungle website:

The above High Court judgment concludes that "Article 7(c) [of the GPDO] is to be read as an alternative to article 7(b) only, not to article 7 (a)". In other words, for an application for prior approval, it's only possible for the applicant and the LPA to agree a "longer period" (under article 7(c) of the GPDO) in the case where "no period is specified" (in Schedule 2 of the GPDO), and not in the case where a period is specified.

So, for example, in the case of an application for prior approval under Part 1 Class A (where a 42 day period is specified), or under Part 3 Classes C, J, M, N, O, P, PA, Q, R, S, or T (where a 56 day period is specified), it's not possible for the applicant and the LPA to agree a "longer period" under article 7(c). Indeed, as indicated by paragraph 34 of the judgment, it appears that there's no example within the GPDO of a Class for which prior approval is required but "no period is specified". If correct, this would mean that there's no situation for which it would be possible to use article 7(c).

In my opinion, although I agree with the outcome of the above judgment, I disagree with the reasoning. In paragraphs 25-26, the judge states that "there is nothing in [Part 3] paragraph W(11) itself" that would prevent the development if the 56 day period has expired without the LPA issuing a decision "whatever the reason might be" (i.e. even if the applicant and the LPA have agreed a "longer period" under article 7(c)). The judge agrees with the suggestion (on behalf of the Defendant) that in order to give effect to article 7(c) there would be "the need to imply words into [Part 3] paragraph W(11)". However, the judge then states that it would be "more rational" to conclude that it was not intended by the legislator for article 7(c) to have effect in the case where a period is specified. The judge subsequently concludes that "Article 7(c) is to be read as an alternative to article 7(b) only, not to article 7 (a)", which would ensure that article 7(c) does not have effect in the case where a period is specified.

However, in my opinion, there are two significant problems with the above conclusion. Firstly, the judge reaches the above conclusion by assessing the likely intention of the legislator. However, as a result of the above conclusion, it appears that there's no situation for which it would be possible to use article 7(c), which was presumably not the intention of the legislator. Secondly, the above conclusion relies upon the interpretation that the word "or" before paragraph (c) of article 7 applies only to the final two items within the list (i.e. paragraphs (b) and (c)) and not to the whole list (i.e. paragraphs (a), (b), and (c)). The judge applied this interpretation despite acknowledging the general rule given by "Bennion on Statutory Interpretation" that "Where a provision consists of several numbered paragraphs with the word "or" before the last paragraph only, that word is taken to be implied before the previous paragraphs after the first". In my opinion, the idea that the above general rule doesn't necessarily apply to every list within the GPDO would potentially cause problems, because it implies that for each such list developers and LPAs would need to assess whether the word "or" applies only to the final two items or to the whole list.

In my opinion, a more likely explanation is that it was the intention of the legislator for it to be possible to use article 7(c) for any application for prior approval (i.e. regardless of whether a period is specified), but that when the legislator introduced article 7 on 15/04/2015, they didn't realise that it was also necessary to amend the corresponding provisions within Schedule 2. For example, when article 7 was introduced on 15/04/2015, in my opinion Part 3 paragraph W(11) should have been amended to change the phrase "the expiry of 56 days" to (say) "the expiry of 56 days, or such longer period as may be agreed by the applicant and the authority in writing under article 7". For reference, the latter issue was identified by the Planning Jungle website in April 2015 (for more info, please view this post), albeit that the above judgment arrives at a similar outcome via different reasoning.

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.