High Court judgment relating to article 7 of the GPDO (31/01/2020) …

[UPDATE: For information about the subsequent "Gluck" Court of Appeal judgment dated 21/12/2020, which upheld the below "Gluck" High Court judgment dated 31/01/2020, please view the free-to-view transcript on the Bailii.org website (link).]

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 31/01/2020:

Gluck v Secretary of State for Housing, Communities and Local Government, and Crawley Borough Council [2020] EWHC 161 (Admin) (31 January 2020).
[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 can use this provision within article 7 of the GPDO.

Important note:

The above "Gluck" High Court judgment dated 31/01/2020 concluded that the previous "Warren Farm" High Court judgement dated 31/07/2019 should not be followed. For reference, the previous judgement supported the (opposite) interpretation that LPAs should not use the above provision within article 7 of the GPDO (note: for more information, please view this post).

Background information:

The above "Gluck" High Court judgment relates to 2 x applications for prior approval under Part 3 Class O of the GPDO (note: see "May 2019 - Code P3CO-302" within the informal list on the "GPDO Part 3 Class O - Prior Approval Appeal Decisions" page). The applications were received by the LPA on 05/03/2018, and the 56 day period expired on 01/05/2018. Although disputed by the applicant, the judge concludes that on 27/04/2018 the applicant and the LPA agreed an extension of the time period to 12/05/2018.

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 08/05/2018 and 11/05/2018, the LPA issued decisions refusing prior approval (i.e. after the 56 day period had expired but before the "longer period" had expired). For this situation, a key issue is 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:

[Note: The above "Gluck" High Court judgment is relatively long, with 111 paragraphs. The paragraphs quoted below are from the section in which the judge explains his reasons for not following the previous "Warren Farm" High Court judgement. For reference, the previous judgment concluded 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, the previous judgment concluded that, 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.].

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

"The Warren Farm decision

83. As I have already indicated, I have had the benefit of much fuller argument than the Court received in Warren Farm. 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 on the interpretation of Article 7 and its interaction with prior approval provisions in Schedule 2 to the GPDO 2015. There are powerful reasons for concluding that limb (c) in Article 7 is an alternative to both limbs (a) and (b), which were not addressed in Warren Farm.

84. The nub of the judge's reasoning in Warren Farm is contained in [23] to [34]. I hope that it will already be clear from the earlier parts of this judgment why I disagree with those conclusions. But in summary:-

(i) The construction of Article 7 which I adopt does not produce internal inconsistency with the GPDO 2015 as indicated in [23] to [26]. The grant of permitted development rights by Article 3(1) and Schedule 2 is expressly made subject to other provisions of the Order. The possibility of extending time under limb (c) is applicable just as much to the time periods referred to in limb (a) as to that described in limb (b). Furthermore, the analysis in Warren Farm did not address the "hybrid" prior approval provisions;

(ii) The construction of Article 7 which I adopt is preferable in the interests of good administration (cf. [27]). It enables the developer to agree an extension of time in all prior approval cases whenever he considers that to be appropriate and is more likely to reduce the number of applications refused and consequential appeals with attendant delays and costs;

(iii) The construction of Article 7 which I adopt is no less effective in promoting certainty (cf. [28]). Any variation of a time period is dependent upon the agreement of the applicant and the requirement for evidence in writing;

(iv) The fact that Article 7 is not expressed to be a condition does not support the construction favoured in Warren Farm [29]. The conditions in Schedule 2 and the provisions in Article 7 are inextricably linked. It is necessary to read them closely together in order to address several examples of laconic, or even incomplete, drafting in the GPDO 2015. For example, Article 7 is integral to the proper understanding and operation of permitted development rights subject to "hybrid" prior approval. Without Article 7 the conditions in those cases controlling the commencement of development would be unworkable where the LPA has decided that a prior approval is required and a substantive decision remains to be taken. Furthermore, the conditions in cases where prior approval is always required by the GPDO 2015 depend upon Article 7 for the provision of a time period for determination;

(v) For the reasons I have given, the supposed difficulties in [30] to [34] do not arise.

Conclusion on the construction of Article 7 of the GPDO 2015

85. 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."

Comments by the Planning Jungle website:

The above "Gluck" High Court judgment concludes that "Article 7 [of the GPDO] must be read as if limb (c) is an alternative to both limbs (a) and (b)", and then concludes that "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".

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 is possible for the applicant and the LPA to agree a "longer period" under article 7(c) of the GPDO.

With the previous "Warren Farm" High Court judgement, I agreed with the outcome but disagreed with the reasoning (note: for more information, please view this post). In particular, with the previous judgment, I disagreed with 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)). In contrast, with the above "Gluck" High Court judgment, I agree with the interpretation that the word "or" before paragraph (c) of article 7 applies to the whole list (i.e. paragraphs (a), (b), and (c)).

However, in my opinion, it's difficult to understand the reasoning within the above "Gluck" High Court judgment as to exactly how the development would be contrary to Part 3 paragraph W(11) in the situation where 1) the developer and the LPA have agreed a "longer period" under article 7(c), and 2) the LPA issues a decision refusing prior approval after the 56 day period has expired but before the "longer period" has expired. For reference, Part 3 paragraph W(11) states that "The development must not begin before ... the expiry of 56 days ... without the authority notifying the applicant as to whether prior approval is given or refused". For the previous "Warren Farm" High Court judgement, the judge stated that "there is nothing in 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)). Similarly, for the previous judgment, the judge agreed with the suggestion that in order to give effect to article 7(c) there would be "the need to imply words into [Part 3] paragraph W(11)(c)". In my opinion, for Part 3 paragraph W(11) to prevent the development, the phrase "the expiry of 56 days" would need to be read as (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".

With the above "Gluck" High Court judgment, the reasoning for this particular issue is contained within a number of paragraphs. For example:

In paragraph 63, the judge states that "Article 7ZA(9) defines a "deemed prior approval provision" as "a provision in Schedule 2 in reliance on which, after the expiry of a time period for decision under Article 7 where the application has not been determined, development may begin"" (note: judge's emphasis shown in underlining). In paragraph 64, the judge then states that "Article 7ZA(9) makes it clear that the time periods for decision-making referred to in Article 7 are integral to the conditions in schedule 2 which control when development may lawfully begin in reliance upon the prior approval deeming provisions".
In paragraph 74, the judge states that "A provision such as paragraph W in Part 3 of Schedule 2 is capable of being read together with Article 7", then states that "Permitted development rights granted under schedule 2 are expressly subject to other provisions of GPDO 2015 including Article 7 (Article 3(1))", and then states that "I accept Mr Streeten's submission [for the defendant] that limb (a) refers to a period specified in Schedule 2 but (like limb (b)) that is subject to any extension agreed under limb (c), and the time period stated in, for example, paragraph W(11) must be read and understood accordingly".
In paragraph 84, the judge states that "The conditions in Schedule 2 and the provisions in Article 7 are inextricably linked", and then states that "It is necessary to read them closely together in order to address several examples of laconic, or even incomplete, drafting in the GPDO 2015".

As such, in my opinion, the above "Gluck" High Court judgment implies that, within Part 3 paragraph W(11) of the GPDO, the phrase "the expiry of 56 days" should be read as (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, this particular issue was identified by the Planning Jungle website in April 2015 (note: for more information, please view this post), albeit that it was my view at the time that it would not be possible to imply the above additional words into Part 3 paragraph W(11).

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.