Mr J. J. Gluck v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 31 January 2020 |
| Neutral Citation | [2020] EWHC 161 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2292/2019, CO/2293/2019, CO/2302/2019, and CO/2304/2019 |
| Date | 31 January 2020 |
[2020] EWHC 161 (Admin)
The Hon. Mr Justice Holgate
Case No: CO/2292/2019, CO/2293/2019, CO/2302/2019, and CO/2304/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Philippa Jackson (instructed by Asserson) for the Claimant
Mr Charles Streeten (instructed by Government Legal Department) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 10 December 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The issues
This application raises important issues about the interpretation of the procedural provisions governing the prior approval regime for permitted development rights, in particular the operation of the time periods for the determination of prior approval applications by a local planning authority (“ LPA”). It is helpful to begin by seeing this issue in a slightly broader statutory context.
Under the Town and Country Planning Act 1990 (“TCPA 1990”) planning permission is generally required for the carrying out of any development of land (s.57(1)). Planning permission may be granted by (inter alia) a “development order” or by an LPA determining an application made under s. 62 (see s.58(1)). Where an LPA receives such an application it must issue its notice of determination within either 13 weeks (for “major development”) or 8 weeks for “non-major development” (Art. 34 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015 No. 595) (“DMPO 2015”)) or within 16 weeks for “EIA development”. However, the authority may still issue a valid determination after the expiry of the relevant time period. The mere expiration of that period does not of itself bring the jurisdiction of the authority to decide the application to an end ( James v Secretary of State for Wales [1996] 1 WLR 135). The TCPA 1990 also provides the applicant with alternative remedies if the authority does not determine the application within the relevant time period. Firstly, it may be extended for such period as “may at any time be agreed upon in writing between the applicant and the authority”; or secondly, the applicant may appeal to the Secretary of State against a deemed refusal by the authority of the application (s.78(2) and (5)).
Section 59 provides for the Secretary of State to make a development order granting planning permission by the order itself. The current development order which generally applies in England is the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015 No. 596) (“GPDO 2015”). If a landowner is entitled to rely upon the “permitted development” rights granted by such an order, he generally need not make an application for the grant of planning permission by the LPA. By s. 60(1) the order may impose conditions or limitations on such rights. More recent development orders have made the grant of certain permitted development rights subject to the “prior approval” of the LPA in relation to particular aspects or effects of a proposal (see also s.60).
In broad terms, there are two types of “prior approval” procedure. First, the grant of permitted rights by the GPDO 2015 may be expressed to be subject to the LPA's prior approval. In these cases, such prior approval is always required. But if it is refused by the LPA the applicant may appeal to the Secretary of State. Second, the grant of permitted development rights may be subject to the making of an application to the LPA for a determination as to whether its prior approval is required. If the LPA judges that a prior approval is necessary, then it will also consider whether to grant that approval and, in the event of a refusal, a right of appeal to the Secretary of State arises. The present case involves permitted development rights which were subject to this second procedure.
The GPDO 2015 stipulates “time periods” for the determination of either type of application. It is common ground that under the first procedure, an applicant's sole remedy for a failure by the LPA to determine an application for prior approval within the relevant time period is to appeal to the Secretary of State against a deemed refusal (under s.78(2) of TCPA 1990). This situation is analogous to the treatment of applications to an LPA under s. 62 for the grant of planning permission (see paragraph 2 above). In the second type of case, the effect of the GPDO 2015 is that where an LPA does not determine within the relevant time period whether prior approval is required and, if so, whether such approval should be granted or refused, the applicant may rely upon the permitted development rights provided that the development complies with the terms of the Order ( Keenan v Woking Borough Council [2018] PTSR 697).
The GPDO 2015 provides for time periods to be extended by the agreement of the applicant and the authority. The first issue is whether, as the Claimant submits, that provision only applies to permitted development rights which are granted subject to prior approval being obtained in every case. The Claimant submits, relying upon the decision of Mr Mark Ockelton (sitting as a Deputy High Court judge) in R (Warren Farm (Wokingham) Limited v Wokingham Borough Council [2019] EWHC 2007 (Admin), that a time period specified in Schedule 2 of the GPDO 2015 for a determination by the authority as to whether its prior approval is required in a particular case is incapable of being extended, so that once it has expired without a decision being made the applicant may proceed with the development described in its application (in so far as it complies with the terms of the Order). The Secretary of State submits that that decision is incorrect and I should not follow it; the provision in the GPDO 2015 for agreeing an extension of time periods applies to all prior approval procedures.
The general principle is that I should follow the decision in Warren Farm unless I am satisfied that there is a powerful justification for not doing so ( Willers v Joyce (No.2) [2018] AC 843 at [9]).
In Warren Farm the judge stated (at [34]) that he had not been referred to any prior approval procedure in the GPDO 2015 to which the provision for extending time could be applied if his construction of the legislation was correct. However, in the present case I have had the benefit of extensive and detailed submissions from counsel which have analysed a wide range of provisions in the GPDO 2015. Before going any further, I wish to express my gratitude to them for their assistance.
If the first issue is resolved in the Claimant's favour, then it is agreed that this application must succeed. If, however, the Court should decide that the relevant time period was capable of being extended by agreement, the second issue is whether in the circumstances of this case the Inspector who determined the Claimant's appeal was entitled to find that an extension had been “agreed by the applicant and the authority in writing”.
Mr Charles Streeten, on behalf of the Secretary of State, has raised a third issue which was not argued before the Inspector. In the event of the Claimant succeeding on the second issue, by showing that the authority did not agree to an extension in writing, Mr Streeten submits that there is an estoppel by convention which prevents the Claimant from contending that the time period was not extended. On behalf of the Claimant, Ms Philippa Jackson resists that submission.
Factual Background
On 5 March 2018 the Claimant submitted two applications to Crawley Borough Council (“CBC”) to determine whether prior approval was required for proposed changes of use from offices to residential under Class O of Part 3 in Schedule 2 to the GPDO 2015 on two sites in Stephenson Way, Three Bridges, Crawley. It was proposed to create 51 apartments on the Kingston House site and 24 apartments on the Saxon House site. The time period for determining the application expired on 1 May 2018, unless as a matter of law it was capable of being extended by agreement and, if so, extended. CBC issued decision notices refusing the applications on 8 and 11 May 2018.
The Claimant appealed to the Secretary of State against CBC's decision to refuse prior approval. Following the written representations procedure, the appeals were determined by a decision letter issued on 9 May 2019. At that stage the High Court had not determined Warren Farm and the Claimant did not argue that the relevant time period was incapable of being extended. That, of course, is a pure question of law, turning on the correct construction of the legislation and so there can be no objection to the Claimant raising the matter now in these proceedings. But the fact is that the Claimant's contention before the Inspector was that the time period had not been extended because the LPA had not agreed to that in writing and so the GPDO 2015 deemed the development described in each application to have been permitted.
The Inspector dealt with this issue at DL 9 to DL 11, as follows:–
“9. On 27 April 2018 the Council received an email from the appellant's agent, stating that, “my client would be willing to agree a new determination date for both applications until 12 May 2018 …”. The Council argue that, in accordance with Article 7(c) of the GPDO, it had the appropriate written notice from the appellant that a longer period to the 56 day determination period had been agreed and both decisions were made before that period expired.
10. The appellant...
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