Mr J.J. Gluck v Secretary of State for Housing, Communities and Local Government

Court:Court of Appeal
Docket Number:Case No: C1/2020/0363, 0364, 0365 & 0366
Judge:Lord Justice Newey, Lord Justice Hickinbottom, Lord Justice Henderson
Judgment Date:21 Dec 2020
Jurisdiction:England & Wales
Neutral Citation:[2020] EWCA Civ 1756

[2020] EWCA Civ 1756

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Mr Justice Holgate

[2020] EWHC 161 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Henderson

Lord Justice Hickinbottom

and

Lord Justice Newey

Case No: C1/2020/0363, 0364, 0365 & 0366

Between:
Mr J.J. Gluck
Appellant
and
(1) Secretary of State for Housing, Communities and Local Government
(2) Crawley Borough Council
Respondents

Philippa Jackson (instructed by Asserson) for the Appellant Charles Streeten (instructed by the Government Legal Department) for the First Respondent

The Second Respondent was not represented

Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be Monday 21 December at 10:30am

Hearing date: 24 November 2020

Approved Judgment

Lord Justice Newey
1

The appellant, Mr J.J. Gluck, contends that he has planning permission to carry out two developments because the respondent local planning authority, Crawley Borough Council (“the Council”), refused applications for prior approval in respect of them only after the 56-day period specified in paragraph W(11) of part 3 of schedule 2 to the Town and Country Planning (General Permitted Development) Order 2015 (“the GPDO”) had already expired. Holgate J (“the Judge”), upholding an inspector, decided otherwise on the basis that the period could be extended by agreement pursuant to article 7(c) of the GPDO and, on the facts, had been. Mr Gluck appeals against that decision.

Basic facts

2

On 5 March 2018, Mr Gluck applied to the Council for prior approval for a change of use from offices to residential under class O of part 3 of schedule 2 to the GPDO. The applications related to two sites in Stephenson Way, Three Bridges, Crawley. Mr Gluck wished to convert one of them, Kingston House, into 51 apartments and the other, Saxon House, into 24 apartments.

3

On 19 April 2018, Allen Planning Limited, the planning consultant acting for Mr Gluck, sent Mr Hamish Walke, a principal planning officer with the Council, an email asking whether there were any outstanding matters on the applications. Responding on 26 April, Mr Walke said:

“Our Environmental Health team has objected to these applications on noise grounds. In view of their objections, I am currently writing both applications up for refusal. As a Prior Approval application and with the applicant having no available control over noise from nearby commercial premises, I can see no way in which the applications could be amended to address these concerns. I hope we will be able to issue a decision in the next day or two.”

4

Mr Tony Allen of Allen Planning Limited forwarded Mr Walke's email to Mr Gluck, who replied at 11.33 am on 27 April 2018:

“Thanks Tony, I have arranged a meeting with our acoustic surveyor and Brian Cox the acoustic office[r] in Crawley Council for Thursday the 4 th to meet on site at 12 pm.

Can you pls call Hamish and have him push off the decision till after the meeting”.

It is to be noted that the Thursday to which Mr Allen was referring was in fact 3 May rather than 4 May and also that Mr Brian Cox, whom Mr Allen mentioned in his email, is the Council's principal environmental protection officer.

5

At 12.52 pm, Mr Gluck sent Mr Allen a further email saying this:

“Tony, I have spoken now to Hamish as I can not get through to you and he has agreed that you should send him an email that we are meeting on Thursday at 12pm with Brian Cox and thus you allow the decision to be extended (otherwise the decision is on the 5 th of May which is Saturday and Hamish is not in on the Friday so it will be determined on Thursday so there is no point meeting..)

So please send Hamish a[n] email asap that you are allowing the decision to be extended.

He is waiting for your email”

6

About half an hour afterwards, at 1.20 pm, Mr Allen sent Mr Walke an email in these terms:

“Good afternoon and I hope that all is well with you and I refer to the two prior notification applications on the above sites.

As set out in my client's email below I understand that the meeting is to occur in terms of the potential issue around noise disturbance and on the basis of Part W of the Order I set out that my client would be willing to agree a new determination date for both applications until 12 May 2018 and if any further extensions are required in order to resolve this matter then I would be happy to agree these with you in advance.”

As the reference to “my client's email below” suggests, the email chain included the emails I have quoted in the previous three paragraphs.

7

Mr Walke replied as follows in an email sent at 2.27 pm:

“Thanks for your email.

I will certainly discuss this with my manager although, as I explained to Mr Gluck earlier, I cannot see any way in which a Prior Approval application could be amended to address the noise concerns that have been raised.”

8

On 3 May 2018, Mr Walke and Mr Cox met Mr Gluck on site, but the noise consultant was not there. Mr Gluck explained that the noise consultant had said that he could not attend but that the Council would receive a report from the noise consultant by Tuesday 8 May.

9

In the event, no report from the noise consultant was forthcoming. Instead, the Council received on 7 May 2018 a letter of that date from Asserson, Mr Gluck's solicitors. Asserson stated in their letter that the Council had failed to notify Mr Gluck of its decisions on his applications within the 56-day period required by the GPDO and that therefore prior approval was “deemed to be granted by virtue of paragraph W11(c) of Part 3 to Schedule 2 of the Order, and … the Council is now no longer lawfully able to issue decision notices refusing the Applications”. Asserson also said this in their letter:

“We are aware that our client's agent offered by email … to extend the determination deadline for the Applications until 12 May 2018, and that a meeting was held to discuss the Applications on 3 May 2018. However, there is no record of the Council agreeing in writing to extend the time limits, as expressly required by Article 7 of the Order.

Indeed, the case officer responded to the above email stating that ‘I will certainly discuss this with my manager although, as I explained to Mr Gluck earlier, I cannot see any way in which a Prior Approval application could be amended to address the noise concerns that have been raised’. This is quite clearly not in any way an expression of agreement to an extension of time by the Council (though in any event it is not clear that an implied agreement would suffice), but instead is an affirmation that the Council was intending to determine the Applications in accordance with its own (albeit erroneous) calculation of the 56-day timescales. There was therefore no written agreement to extend time, and the 56-day timescales to determine the Applications remained.”

10

Undeterred, on 8 and 11 May 2018 the Council issued decision notices refusing Mr Gluck's applications. Each proposal was “considered unacceptable on noise grounds due to the likely impact from adjoining commercial premises and the resulting harmful impact upon the residential environment that would be created for future occupiers”.

11

Mr Gluck appealed to the Secretary of State, but the appeals were dismissed in a decision letter dated 2 May 2019 on the basis that “the occupiers of the proposed flats would be exposed to … noise which may occur at any time and would significantly affect their quality of life”. With regard to the timing of the Council's decisions, the inspector said this:

“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 contends that he did not give written notice for a longer period to the 56 days and that the Council have implied an extension by context. This is unacceptable as the GPDO only allows deadlines to be extended ‘through express and unequivocal written agreement’. Furthermore, the email of 27 April 2018 from his agent to the Council stated that the appellant would be ‘willing’ to extend the deadline which is an offer and not a formal agreement.

11. I have carefully considered the appellant's arguments regarding whether he agreed to a longer period to determine the applications and based on all the information before me, which includes other emails, I am satisfied that such an agreement was entered into by both parties. Moreover, I have not been provided with any substantive evidence that an email cannot be considered ‘in writing’ for the purposes of agreeing the longer period. Furthermore, there is no requirement under Article 7 of the GPDO that both parties have to agree the longer period independently, only that there is an agreement ‘by the applicant and the authority in writing’, and the email from the appellant's agent is that written agreement. Consequently, permission was not deemed to have been granted.”

12

Returning to the subject in his costs decisions of the same date, the inspector said:

“5. The email from the agent to the Council follows an email from the applicant which confirms that he had spoken to officers regarding the need for a further meeting to discuss matters at the sites and that an email is expedited ‘allowing the decision to be extended’. I do not find the phrase, ‘would be...

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