R Warren Farm (Wokingham) Ltd v Wokingham Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton,C. M. G. Ockelton |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] EWHC 2007 (Admin) |
| Docket Number | Case No: CO/1017/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2019 |
[2019] EWHC 2007 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL
Case No: CO/1017/2019
Mr A. Bowes (instructed by Barlow Robbins Solicitors) for the Claimant
Mr G. Williams (instructed by SBS Legal Solicitors) for the Defendant
Hearing date: 13 June 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.
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL
Introduction
Article 7 of the Town and Country Planning (England) (General Permitted Development) Order 2015 ( SI 2015/596) (“the GPDO”) is as follows:
“7. Prior approval applications: time periods for decision
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.”
The question raised by these proceedings is whether paragraph (c) is an alternative to both paragraphs (a) and (b) or only to paragraph (b).
Context
By article 3(1) of the GPDO, planning permission is deemed to be granted for the classes of permitted development set out in Schedule 2; but by article 3(2), the permission granted by article 3(1) is “subject to any relevant exception, limitation or condition specified in Schedule 2”.
One of the classes of permitted development set out in Schedule 2 is that in Class Q of the Schedule, development consisting of a change of use of a building and any land within its curtilage from use as an agricultural building to use as a dwellinghouse, together with building operations reasonably necessary to convert the building for use as a dwellinghouse. Detailed limitations on the scope of the permitted development are contained in paragraph Q.1, “Development not permitted”. Paragraph Q.2, “Conditions” imposes a condition that is differently expressed according to the precise development proposed, but has the effect that in all cases within Class Q,
“Development is permitted subject to the condition that before beginning the development the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to [certain matters] and the provisions of paragraph W (prior arrival) of this Part apply in relation to that application.”
The format of class Q follows the model of a number of other classes in Schedule 2, which include a condition requiring prior approval; generally (and perhaps as the GPDO stands at present always) in accordance with paragraph W.
Paragraph W is divided into numbered subparagraphs. Subparagraph (2) sets out the procedure for making the application to the local planning authority, and subparagraph (3) provides that an application may be refused if the authority considers either (a) that the proposed development does not meet the requirements of permitted development in the relevant class, or (b) that it does not have enough information to determine whether the proposed development meets the requirements of permitted development in the relevant class. When an application is not refused for this reason, subparagraphs (5)-(10) set out the procedure to be adopted by the authority in relation to consultation, notices and decision-making; but by subparagraph (4), subparagraphs (5)-(10) do not apply if the application has been refused under subparagraph (3). I do not need to set any of these subparagraphs out; but I observe that the requirements of a notice under subparagraph (2) do not specifically include the information the lack of which might prompt refusal under subparagraph (3)(b). It follows that there is no scope for an argument that refusal under paragraph (3)(b) is in any way equivalent to a decision that there has been no valid application within the meaning of subparagraph (2); and indeed no such argument was raised before me.
Subparagraph (11) is as follows:
“(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.”
For completeness I should also set out subparagraph (12):
“(12) The development must be carried out –
(a) where prior approval is required, in accordance with the details approved by the local planning authority;
(b) where prior approval is not required, or where sub-paragraph (11)(c) applies, in accordance with the details provided in the application referred to in sub-paragraph (1), unless the local planning authority and the developer agree otherwise in writing.”
I have set out article 7 of the GPDO above in paragraph 1. At this stage I need only point out that although article 7 relates solely to the prior approval process, it is not within paragraph W of Schedule 2, nor is it within Schedule 2.
The facts and the claim
The claimant proposed to change the use of Warren Grain Barn, Wokingham, RG40 5QY to use as a dwellinghouse. On 12 November 2018 it submitted to the defendant an application in the form required by paragraph W(2), which the defendant received on 15 November. It is common ground that the period of 56 days thereafter expired on 10 January 2019.
On 8 January 2019 the defendant asked the claimant for an extension of time. The reason was that the defendant thought that a notice needed, under the provisions of paragraph W(7), to be displayed for 21 days, which had not happened. In fact it appears that the defendant was mistaken, because subsequent events show that the defendant was minded to refuse the application under subparagraph (3); and the notice requirements apply only if the application is not refused under subparagraph (3). The claimant queried whether there was power to agree an extension of time; the defendant pointed to article 7, and the claimant agreed, in the interests of expediency, an extension to 31 January.
On 30 January the defendant made a decision refusing prior approval on the ground that inadequate information had been submitted to demonstrate compliance with the conditions in paragraph Q.2. No development has yet taken place
The Claimant claims that the decision of 30 January was of no legal effect because it was too late. The claim was issued on 13 March. Permission was granted by HHJ Alice Robinson sitting as a judge of this Court.
The arguments
It is convenient to deal with the defendant's arguments first, because they are in the Summary Grounds of Defence, as a result of which the claimant's skeleton argument for the hearing was able to respond to them. On behalf of the defendant Mr Williams argues that article 7 should be given its ordinary meaning, which, he says means that paragraph (c) should be regarded as an alternative to either paragraph (a) or paragraph (b): if it were intended to be confined to paragraph (b) it would have been incorporated within paragraph (b) rather than given a paragraph of its own in the same hierarchy as the other two. Reading the article in that way would not necessitate a conflict with paragraph W(11) of Schedule 2, because there are three alternative ways of avoiding a conflict.
First, paragraph W(11) can be given its literal meaning. It merely says that the development must not begin before the expiry of the 56 days. That would still be the case if the time had been extended by agreement. Nothing in paragraph W(11) says that a development may begin as soon as the time has expired. It is interpreting the words in the latter way (that is to say, reading the words as though they said something that they do not say) that cases the conflict. Further, Mr Williams submits...
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