Suzanne Winters v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr John Howell,Mr John Howell QC |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] EWHC 357 (Admin) |
| Date | 24 February 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/941/2016 |
[2017] EWHC 357 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Howell QC
Sitting as a Deputy High Court Judge
Case No: CO/941/2016
Mr Richard Turney (instructed by Kingsley Smith LLP) for the Claimant
Mr Zack Simons (instructed by Government Legal Department) for the Defendants
Hearing date: 16 th February 2017
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 John Howell QC
This is an application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision by an Inspector who dismissed the Claimant's appeal against the refusal by her local planning authority to grant prior approval under the Town and Country Planning (General Permitted Development) (England) Order 2015 ("the GPDO") for an extension to her house at 138 Wingletye Lane, Hornchurch.
On February 16th 2015 the Claimant, Ms Suzanne Winters, applied to the Council of the London Borough of Havering ("the Council") for prior approval of an extension she wished to construct that would extend six metres from the rear wall of her house. The Council subsequently sent a letter dated February 20th 2015 stating that they were required to give notice of their decision to her on that application before March 30th 2015. During that period the Council received an objection to the proposed development from the occupier of an adjoining occupier. On March 27th 2015 the Council decided to refuse prior approval on the basis that the impact of the proposed development on the amenity and outlook of adjoining occupiers would be unacceptable by reason of the extension's scale, bulk and mass and that it would represent an obtrusive and overbearing feature in the rear garden environment. The decision was published online on March 27th. That was a Friday. Notice of the decision was only posted to the Claimant on the following Monday, March 30th. She received it on March 31st.
The Claimant appealed against the decision of the Council to refuse prior approval under section 78 of the 1990 Act making the point that she had only been informed of that decision after the period within which it should have been made. On January 12th 2016 the Inspector, Mr Michael Hetherington, who had been appointed by the Secretary of State to determine the appeal, dismissed it.
The Inspector found that the Claimant has not been notified in writing or otherwise within the period required for the Council's decision to be notified to her. But he nonetheless dismissed her appeal as he found that her proposed development had been begun before her application had been made to the Council. As he put it in his decision letter:
"16. It is a requirement of condition (2) of GPDO paragraph A.4 that relevant information contained in the prior approval application is provided to the local planning authority before beginning development. Prior approval cannot be granted in respect of works that have already commenced…..
17. For the reasons set out above, and irrespective of my finding in respect of the Council's failure to notify the appellant as is required by condition (10) of paragraph A.4, I consider that the application does not comply with condition (2) of paragraph A.4 of Class A, Part 1, Schedule 2 of the GPDO. The proposal does not therefore amount to permitted development. This is not a matter that can be remedied though the appeal process and, as such, the question of whether, on its merits, prior approval should be given for the proposal does not arise. I therefore conclude that the appeal must be dismissed."
On behalf of the Claimant, Mr Richard Turney contended that the Inspector's decision dismissing the appeal is flawed on three grounds. Even assuming that the development had been begun before the Claimant's application was submitted to the Council, he submitted (i) that an appeal against the refusal of prior approval cannot be dismissed on the ground that condition (2) has been breached and (ii) that the appeal should have been allowed in any event given the Inspector's conclusion that the Council had not notified the Claimant of the decision within the permitted 42 day period. He further submitted that in any event (iii) the Inspector's conclusion that the development had been begun before the Claimant made her application to the Council is flawed as a matter of law.
THE RELEVANT STATUTORY PROVISIONS
The general rule in the 1990 Act is that planning permission is required for the carrying out of any development of land: see section 57(1) of the 1990 Act. There are a number of ways in which any planning permission required may be granted. It may be granted, for example, "(a) by a development order" made by the Secretary of State or "(b) by the local planning authority … on an application to the authority … in accordance with a development order": see sections 58(1). Thus a development order "may itself grant planning permission for development specified in the order or for any class specified": see section 59(1)(a) of the 1990 Act.
At the relevant time, section 60 of the 1990 Act provided in relation to permission granted by a development order inter alia that:
"(1) Planning permission granted by a development order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order.
(2) Without prejudice to the generality of subsection (1), where planning permission is granted by a development order for the erection, extension or alteration of any buildings, the order may require the approval of the local planning authority to be obtained with respect to the design or external appearance of the buildings.
(2B) Without prejudice to the generality of subsection (1), a development order may include provision for ensuring—
(a) that, before a person in reliance on planning permission granted by the order carries out development of land in England that is a dwelling house or is within the curtilage of a dwelling house—
(i) a written description, and a plan, of the proposed development are given to the local planning authority,
(ii) notice of the proposed development, and of the period during which representations about it may be made to the local planning authority, is served by the local planning authority on the owner or occupier of any adjoining premises, and
(iii) that period has ended, and
(b) that, where within that period an owner or occupier of any adjoining premises objects to the proposed development, it may be carried out in reliance on the permission only if the local planning authority consider that it would not have an unacceptable impact on the amenity of adjoining premises."
It may be noted that section 60(2B) of the 1990 Act does not itself permit a development order to include a provision that the proposed development may be carried out (if there is a relevant objection) on the expiry of the period during which representations it may be made about to the local planning authority had ended if no decision by the authority has been notified to the applicant.
Article 3 of the 2015 Order provides inter alia that:
"(1) Subject to the provisions of this Order….., planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.
(2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2."
Planning permission is granted under Class A in Part 1 of Schedule 2 to the GPDO for "the enlargement, improvement or other alteration of a dwelling house". However, by virtue of condition A.1, such development is not permitted inter alia if—
"(f) subject to paragraph (g), the enlarged part of the dwellinghouse would have a single storey and—
(i) extend beyond the rear wall of the original dwellinghouse by more than 4 metres in the case of a detached dwellinghouse, or 3 metres in the case of any other dwellinghouse, or
(ii) exceed 4 metres in height;
(g) until 30th May 2019…..the enlarged part of the dwellinghouse would have a single storey and—
(i) extend beyond the rear wall of the original dwellinghouse by more than 8 metres in the case of a detached dwellinghouse, or 6 metres in the case of any other dwellinghouse, or
(ii) exceed 4 metres in height".
138 Wingletye Lane, Hornchurch is not a detached dwelling house. Accordingly a proposal to extend 6 metres beyond the rear wall of the original house would exceed the limits in paragraph A.1(f) but be allowed by paragraph A.1(g) (assuming the height restriction was complied with).
Condition A.4(1) provides that a number of conditions apply to development permitted by Class A which exceeds the limits in paragraph A.1(f) but is allowed by paragraph A.1(g). These conditions include the following:
"(2) Before beginning the development the developer must provide the following information to the local planning authority—
(a) a written description of the proposed development including—
(i) how far the enlarged part of the dwellinghouse extends beyond the rear wall of the original dwellinghouse;
(ii) the maximum height of the enlarged part of the dwellinghouse; and
(iii) the height of the eaves of the enlarged part of the dwellinghouse;
(b) a plan indicating the site and showing the proposed development;
(c) the addresses of any adjoining premises;
(d) the developer's contact address; and
(e) the developer's email address if the developer is content to receive communications...
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