Cab Housing Ltd v The Secretary of State for Levelling UP, Housing and Communities

JurisdictionEngland & Wales
JudgeMr. Justice Holgate
Judgment Date03 February 2022
Neutral Citation[2022] EWHC 208 (Admin)
Docket NumberCase No: CO/2763/2021 Case No: CO/3921/2021
Year2022
CourtQueen's Bench Division (Administrative Court)
Between:
Cab Housing Limited
Claimant
and
(1) The Secretary of State for Levelling UP, Housing and Communities
(2) London Borough of Broxbourne
Defendants
Between:
Beis Noeh Limited
Claimant
and
(1) The Secretary of State for Levelling UP, Housing and Communities
(2) London Borough of Haringey
Defendants
Between:
Mati Rotenberg
Claimant
and
(1) The Secretary of State for Levelling UP, Housing and Communities
(2) London Borough of Haringey
Defendants

[2022] EWHC 208 (Admin)

Before:

THE HON. Mr Justice Holgate

Case No: CO/2763/2021

Case No: CO/3135/2021

Case No: CO/3921/2021

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Charles Streeten (instructed through Direct Public Access) for the Claimants

Thea Osmund-Smith (instructed by Government Legal Department) for the First Defendant

The Second Defendants in each case did not appear and were not represented.

Hearing date: 18 January 2022

Approved Judgment

Mr. Justice Holgate

Introduction

1

The Town and Country Planning (General Permitted Development) (England) Order 2015 SI 2015 No. 596 (“GPDO 2015”) grants planning permission for the Classes of permitted development set out in Schedule 2. Where a landowner is entitled to rely upon such rights, he does not need to make an application for a grant of planning permission to the local planning authority (“ LPA”) under s.62 of the Town and Country Planning Act 1990 (“TCPA 1990”). However, some permitted development rights are dependent upon an application being made to a LPA for the “prior approval” of a specific proposal. Without that approval, the rights granted by GDPO 2015 cannot be exercised. If a proposal is approved, the development rights granted by the order can only be exercised in accordance with the details approved by the LPA.

2

An application for prior approval is not the same as an application for planning permission. The authority is not entitled to have regard to all material considerations, as is the case of an application for planning permission (contrast s.70(2) of TCPA 1990). The GDPO 2015 specifies those planning matters for which approval must be sought and obtained and hence the details which the landowner must submit in his application. Those specified matters delimit the controls which the LPA is able to exercise and the considerations it is entitled to take into account, when determining an application for prior approval.

3

Where an LPA refuses to grant prior approval, or fails to determine an application within the relevant time limit, the applicant may appeal to the Secretary of State, the defendant. These three applications under s.288 of TCPA 1990 challenge the decisions of three Planning Inspectors to dismiss appeals against the refusal of prior approval under Class AA of Part 1 of Schedule 2 to the GPDO. That Class provides for the enlargement of a single dwelling house by the upwards addition of up to two storeys, or one storey above a single-storey building.

4

Paragraph AA.2 of Part 1 of Schedule 2 to the GPDO 2015 sets out the conditions subject to which the permitted development right in Class AA and paragraph AA.1 is granted. The enlarged dwellinghouse must be used as a single dwelling (see the condition in AA.2(2)(d)).

5

Paragraph AA.2(3) sets out the matters for which prior approval must be obtained:-

“(3) The conditions in this sub-paragraph are as follows –

(a) before beginning the development, the developer must apply to the local planning authority for prior approval as to –

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

(ii) the external appearance of the dwelling house, including the design and architectural features of –

(aa) the principal elevation of the dwelling house, and

(bb) any side elevation of the dwelling house that fronts a highway;

(iii) air traffic and defence asset impacts of the development; and

(iv) whether, as a result of the siting of the dwelling house, the development will impact on a protected view identified in the Directions Relating to Protected Vistas dated 15 th March 2012 issued by the Secretary of State.”

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 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?

7

In the decisions challenged in these proceedings, the Inspectors took the broader approach in relation to external appearance and, in two cases, to amenity. It is common ground that if the claimants' construction of the GPDO 2015 is correct, then each of the decisions must be quashed as ultra vires. The decisions would have been taken outside the ambit of the powers exercisable by the Inspector. But, if the defendant's interpretation is correct, then it is also common ground that each of the three Inspectors reached decisions which fell within their powers, their decisions are not otherwise open to legal challenge and the applications for statutory review must be dismissed.

8

The claimants point out that other Inspectors have taken a different view upon the scope of the controls exercisable in the determination of an application for prior approval under Class AA of Part 1. It has been said that the decision-maker is not allowed to assess the impact of the external appearance of a proposed addition of 1 or 2 storeys on any area outside the subject building, for example, the streetscape. It has also been said that the principle of an upwards extension of up to 2 storeys is “established” by the permitted development right itself, so that the decision on the application for prior approval should not frustrate, or resile from, that principle. Such statements have even been made in relation to other permitted development rights where the GPDO 2015 requires “external appearance” to be controlled, without going on to refer to specific elevations (see e.g. the decision letter dated 6 July 2021 on Kings Gate, 111, The Drive, Hove). If the Secretary of State's interpretation of the GPDO 2015 is correct, then all these decisions were potentially liable to be quashed on an application under s.288 brought within time. Plainly there are differences of interpretation which need to be resolved. There is also the question: to what extent is it correct to say that the principle of development is established where a permitted development right is subject to prior approval?

9

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. These provide for up to two storeys of multiple units of residential units to be erected on top of an existing purpose-built block of flats, or on top of detached or terraced buildings in commercial or mixed use or residential use.

10

The claimants' narrower approach to the legal scope of prior approval in these Classes also has implications for non-residential permitted development rights. 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. If, as some decision-makers have said, that control is limited to assessing the effects of that appearance on the building itself, then it would follow, for example, that the effects of that external appearance on the setting of a listed building nearby could not be controlled. Can this really be right?

11

The remainder of this judgment is set out under the following headings:

• A summary of the decision letters

• The statutory framework

• A summary of the claimants' submissions

• Principles of statutory interpretation

• Discussion.

12

I am grateful for the considerable assistance I have received from Counsel in their written and oral submissions.

A Summary of the Decision Letters

31

Gaywood Avenue. London N8

13

The challenge brought by Cab Housing Limited relates to the decision letter dated 15 June 2021 dismissing its appeal against the refusal of prior approval for the addition of a single storey to the existing single storey dwelling.

14

The Inspector concluded that the proposed development would have an adverse impact in terms of both the amenity of adjoining premises and the external appearance of the dwelling (i.e. paragraph AA.2(3)(a)(i) and (ii)).

15

The appeal property is a detached bungalow within a cluster of bungalows towards the end of a cul-de-sac. There are two-storey terraced dwellings to the south and east of the appeal site, semi-detached two-storey dwellings to the west, and rows of bungalows to the south and south-east. The area has a mixed...

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5 cases
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