High Court judgment about the scope of the prior approval matters (the “impact on the amenity of any adjoining premises” and the “external appearance of the dwellinghouse”) within Part 1 Class AA (and Part 20 Classes ZA, A, AA, AB, AC, and AD) of the GPDO (03/02/2022) …

Introduction:

The following High Court judgment about the scope of the prior approval matters (the "impact on the amenity of any adjoining premises" and the "external appearance of the dwellinghouse") within Part 1 Class AA of the GPDO was handed down on 03/02/2022:

  • Cab Housing Limited, Beis Noeh Limited, and Rotenbe v Secretary of State for Levelling Up, Housing and Communities, Broxbourne London Borough Council, and Haringey London Borough Council [2022] EWHC 208 (Admin) (3 February 2022).
    [Note: The transcript for the above High Court judgment is available as a free-to-view transcript on the Bailii.org website (link)].

In my opinion, the above judgment directly supports the following interpretations in relation to Part 1 Class AA of the GPDO:

  • The assessment of the "impact on the amenity of any adjoining premises" is not limited to the impact on "overlooking, privacy and the loss of light". For example, it can include the impact on other aspects of amenity such as "outlook, noise and activity".
  • The assessment of the "impact on the amenity of any adjoining premises" is not limited to the impact on properties that "abut, or are contiguous with, the subject property". For example, it can include the impact on other properties that are "neighbouring premises" (note: these do not have to be "residential premises").
  • The assessment of the "external appearance of the dwellinghouse" is not limited to "the design and architectural features of (aa) the principal elevation of the dwellinghouse, and (bb) any side elevation of the dwellinghouse that fronts a highway". For example, it can include the external appearance of other elevations such as a side elevation that doesn't front a highway or a rear elevation (note: these do not have to be "public facing elevations").
  • The assessment of the "external appearance of the dwellinghouse" is not limited to the impact of that appearance on the "subject property itself". For example, it can include the impact of that appearance on "neighbouring premises and the locality".

In my opinion, the above judgment also indirectly supports the above interpretations in relation to Part 20 Classes ZA, A, AA, AB, AC, and AD of the GPDO (note: for more information, please view below).

Background information:

The above High Court judgment relates to the appeal decisions "APP/W1905/W/20/3265298" (link), "APP/Y5420/D/21/3268817" (link), and "APP/Y5420/D/21/3277589" (link). Each of these appeal decisions relates to an application for prior approval under Part 1 Class AA of the GPDO (i.e. "enlargement of a dwellinghouse by construction of additional storeys"). [Note: For a summary of each of these appeal decisions, please view paragraphs 13-29 within the above High Court judgment.]

For reference, Part 1 Class AA paragraph AA.2(3)(a) requires the developer to submit an application for prior approval with respect to a number of issues (or "matters"), including the following:

"(i) impact on the amenity of any adjoining premises including overlooking, privacy and the loss of light;

(ii) the external appearance of the dwellinghouse, including the design and architectural features of—
(aa) the principal elevation of the dwellinghouse, and
(bb) any side elevation of the dwellinghouse that fronts a highway;"

Paragraph 6 within the above High Court judgment summarises the key issues as follows:

"6. These challenges raise important issues regarding the true interpretation of Class AA of Part 1. First, are the claimants correct in saying that a planning authority's control of impact on amenity [is] limited to effects on properties contiguous with, or abutting, the subject property and are those effects limited to overlooking, privacy and loss of light? Alternatively, does that control embrace impact upon all aspects of the amenity of neighbouring premises, as the Secretary of State contends? Second, is the authority's control of the external appearance of the subject dwelling limited to the "design and architectural features" of its principal elevation and any side elevation fronting a highway, and is it further limited to the effects of those matters upon the subject dwelling itself? The claimants contend for that interpretation and they say that the authority is not allowed to consider the effects of external appearance upon any property outside the subject dwelling. Alternatively, is the correct interpretation, as the Secretary of State contends, that the control covers (1) all aspects of the external appearance of the proposed development, and not simply the two elevations specifically referred to in AA.2(3)(a)(ii)) and (2) impact upon other premises, and not simply the subject dwelling itself?"

In other words, one of the key issues was whether the use of the word "including" (and the subsequent text) within Part 1 Class AA paragraph AA.2(3)(a) should be interpreted as providing either 1) an exhaustive list (i.e. "limiting the matters which can be taken into account under "amenity" or "external appearance" to those which are expressly specified as being included"), or 2) a non-exhaustive list (i.e. providing "examples of the matters which are to be controlled by the decision-maker").

Key quotes from the above High Court judgment:

Paragraph 102 within the above High Court judgment summarises the main conclusions as follows [note: my emphasis in bold]:

"102. I summarise the court's main conclusions on the interpretation of Class AA of Part 1 of Schedule 2 to the GPDO 2015:

(i) Where an application is made for prior approval under Class AA of Part 1 of Schedule 2 to the GPDO 2015, the scale of the development proposed can be controlled within the ambit of paragraph AA.2(3)(a);

(ii) In paragraph AA.2(3)(a)(i) of Part 1, "impact on amenity" is not limited to overlooking, privacy or loss of light. It means what it says;

(iii) The phrase "adjoining premises" in that paragraph includes neighbouring premises and is not limited to premises contiguous with the subject property;

(iv) In paragraph AA.2(3)(a)(ii) of Part 1, the "external appearance" of the dwelling house is not limited to its principal elevation and any side elevation fronting a highway, or to the design and architectural features of those elevations;

(v) Instead, the prior approval controls for Class AA of Part 1 include the "external appearance" of the dwelling house;

(vi) The control of the external appearance of the dwelling house is not limited to impact on the subject property itself, but also includes impact on neighbouring premises and the locality."

The above conclusions apply directly to Part 1 Class AA of the GPDO.

The implications of the above High Court judgment in relation to Part 20 Classes ZA, A, AA, AB, AC, and AD of the GPDO:

In my opinion, the conclusions of the above High Court judgment are also applicable to Part 20 Classes ZA, A, AA, AB, AC, and AD of the GPDO. For example, paragraph 9 within the above High Court judgment states that "The issues in this case also affect the proper construction and ambit of permitted development rights granted by GPDO 2015 under Classes ZA, A, AA, AB, AC and AD of Part 20".

With respect to the "impact on the amenity of any adjoining premises", the wording of Part 20 Classes ZA, A, AA, AB, AC, and AD is very similar to the wording of Part 1 Class AA. For reference, the wording of this issue within each of these Classes is as follows [note: matching words shown in bold]:

Part 1 Class AA:
"(i) impact on the amenity of any adjoining premises including overlooking, privacy and the loss of light;"

Part 20 Class ZA:
"(g) the impact of the development on the amenity of the new building and of neighbouring premises, including overlooking, privacy and light;"

Part 20 Classes A, AA, and AB:
"(g) impact on the amenity of the existing building and neighbouring premises including overlooking, privacy and the loss of light;"

Part 20 Classes AC and AD:
"(g) impact on the amenity of the neighbouring premises including overlooking, privacy and the loss of light;"

Paragraph 45 within the above High Court judgment states that "The control of impact on amenity [within Part 20 Classes ZA, A, AA, AB, AC, and AD] is essentially the same as that applied in Class AA of Part 1", and states that "As I explain below, the use of the phrase "neighbouring premises" in those six Classes does not have a different meaning to "adjoining premises" in Class AA of Part 1". Furthermore, paragraph 92 within the above High Court judgment states the following [note: my emphasis in bold]:

"92. A proposal for an upwards extension of a building, whether under Class AA of Part 1 or Classes ZA, A and AA to AD of Part 20, is capable of having a significant impact on the amenity of neighbouring premises, which is not confined to overlooking, privacy or loss of light. Such impacts may include, for example, impact on outlook, noise and activity. There is no reason to think that the language used in the GPDO 2015 was meant to exclude such considerations from control by prior approval."

With respect to the "external appearance of the dwellinghouse" [or "building"], the wording of Part 20 Classes AA, AB, AC, and AD is very similar to the wording of Part 1 Class AA, whereas the wording of Part 20 Classes ZA and A contains one main difference that does not appear to prevent the conclusions of the above High Court judgment from being applicable. For reference, the wording of this issue within each of these Classes is as follows [note: matching words shown in bold]:

Part 1 Class AA:
"(ii) the external appearance of the dwellinghouse, including the design and architectural features of—
(aa) the principal elevation of the dwellinghouse, and
(bb) any side elevation of the dwellinghouse that fronts a highway;"

Part 20 Class ZA:
"(e) the external appearance of the new building;"

Part 20 Classes A:
"(e) the external appearance of the building;"

Part 20 Classes AA, AB, AC, and AD:
"(e) the external appearance of the building, including—
(i) the design and architectural features of—
(aa) the principal elevation; and
(bb) any side elevation that fronts a highway;"

Paragraph 46 within the above High Court judgment states that "The fact that these controls [within Part 20 Classes AA, AB, AC, and AD] refer to the external appearance of a "building" rather than a "dwelling-house" (as in Class AA of Part 1) is of no significance for the issues in this case".

The main difference with the wording of Part 20 Classes ZA and A is that these Classes do not contain the word "including" (and the subsequent text). However, within the above High Court judgment, it appears to be taken as read that the assessment of the "external appearance of the dwellinghouse" [or "building"] for Part 1 Class AA and Part 20 Classes AA, AB, AC, and AD should be either 1) narrower than for Part 20 Classes ZA and A, or 2) the same as for Part 20 Classes ZA and A (i.e. it appears to be taken as read that it should not be 3) wider than for Part 20 Classes ZA and A). For example, paragraph 47 within the above High Court judgment states the following [note: my emphasis in bold]:

"47. But in the case of two Classes of permitted development, Classes ZA and A of Part 20, the control simply refers to the "external appearance" of the new building or the building, without any further text which includes the design and architectural features of the principal elevation and any side elevation fronting a highway. The question is whether the ambit of these two formulations, read properly in context, should be construed differently, one covering external appearance in general and the other limited to those matters which are expressly stated to be "included"."

Similarly, paragraphs 89-90 within the above High Court judgment state the following [note: my emphasis in bold]:

"89. I am reinforced in this approach to the use of the word "including" by comparing Class A of Part 20 with Class AA of Part 1 and Classes AA to AD of Part 20. The latter group all refer to the same matters as being "included" in external appearance. The former simply refers to "external appearance" [footnote: Class ZA is different in that it deals with the erection of an entirely new building following the demolition of an existing building]. If the claimants' construction in relation to Class AA of Part 1 is correct than it must also apply to Classes AA to AD of Part 20. But Classes AA to AD of Part 20, like Class A of the same Part, are all dealing with the creation of multiple new dwellinghouses on top of existing buildings. Certainly, in the case of Classes A, AA and AB these buildings may be substantial. It would make no sense for the Order to allow LPAs to control all aspects of external appearance where an upwards extension is to be constructed on a block of flats [note: this is referring to Part 20 Class A], but to confine that consideration to the principal elevation and any side elevation fronting a highway where the existing building is a detached (or terraced) commercial or mixed use building [note: this is referring to Part 20 Classes AA and AB].

90. Mr. Streeten [for the claimants] sought to address this difficulty in his argument by suggesting that the control of external appearance is different for upwards extensions to a purpose-built block of flats [note: this is referring to Part 20 Class A] because that development would be more likely to be viewed from all sides. That suggestion is untenable. Commercial (or mixed use) buildings are no different in principle. They may or may not be freestanding. Both types of building may be visible on all sides. Indeed, both Class A and Class AA of Part 20 can only apply to detached buildings. There is no sensible reason why the external appearance of a commercial building should only be assessed in relation to its principal elevation and any side elevation fronting a highway [note: this is referring to Part 20 Classes AA and AB], and a broader approach taken to a purpose-built block of flats [note: this is referring to Part 20 Class A], given that they both deal for this purpose with additional development of essentially the same nature."

Note: Paragraph 10 within the above High Court judgment states that "The claimants' narrower approach to the legal scope of prior approval in these Classes also has implications for non-residential permitted development rights", and then states "For example, the right to erect or extend an agricultural building under Class A of Part 6 of Schedule 2 to the GDPO 2015 is potentially subject to control by prior approval in respect of the "external appearance" of the building proposed".

How the above High Court judgment relates to appeal decisions:

For Part 1 Class AA of the GPDO, the issue of whether the assessment of the "external appearance of the dwellinghouse" should include the impact of the proposed development upon the character and appearance of the surrounding area was covered by this post, which included the conclusions of appeal decisions up until the end of September 2021.

The above post contains 20 appeal decisions that support one of the following two conclusions (i.e. 2 and 18 appeal decisions respectively):

  • This appeal decision provides an example of where the Inspector, when considering the "external appearance of the dwellinghouse", assessed the impact of the proposed development upon the character and appearance of the surrounding area and concluded that this would be acceptable.
  • This appeal decision provides an example of where the Inspector, when considering the "external appearance of the dwellinghouse", assessed the impact of the proposed development upon the character and appearance of the surrounding area and concluded that this would be unacceptable.

In contrast, the above post contains 5 appeal decisions that support the following (opposite) conclusion:

  • This appeal decision provides an example of where the Inspector, when considering the "external appearance of the dwellinghouse", indicated that it was not necessary to assess the impact of the proposed development upon the character and appearance of the surrounding area.

In my opinion, the above High Court judgment supports the conclusions of the above 20 appeal decisions but contradicts the conclusions of the above 5 appeal decisions.

Similarly, for Part 20 Classes ZA, A, AA, AB, AC, and AD of the GPDO, the issue of whether the assessment of the "external appearance of the building" should include the impact of the proposed development upon the character and appearance of the surrounding area was covered by this post, which included the conclusions of appeal decisions up until the end of September 2021.

The above post contains 2 appeal decisions that support one of the following two conclusions (i.e. 0 and 2 appeal decisions respectively):

  • This appeal decision provides an example of where the Inspector, when considering the "external appearance of the building", assessed the impact of the proposed development upon the character and appearance of the surrounding area and concluded that this would be acceptable.
  • This appeal decision provides an example of where the Inspector, when considering the "external appearance of the building", assessed the impact of the proposed development upon the character and appearance of the surrounding area and concluded that this would be unacceptable.

In contrast, the above post contains 8 appeal decisions that support the following (opposite) conclusion:

  • This appeal decision provides an example of where the Inspector, when considering the "external appearance of the building", indicated that it was not necessary to assess the impact of the proposed development upon the character and appearance of the surrounding area.

In my opinion, the above High Court judgment supports the conclusions of the above 2 appeal decisions but contradicts the conclusions of the above 8 appeal decisions.

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.