The High Court decision of Winters v Secretary of State for Communities And Local Government & Anor [2017] EWHC 357 (Admin) has found that residential ‘prior approval’ permitted development rights, pursuant to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”), do not have retrospective effect.
This case concerned a prior approval application to the Havering Borough Council for a house extension under Class A in Part 1 of Schedule 2 to the GPDO. The applicant initially appealed the council’s decision to refuse the prior approval on neighbouring amenity grounds. Two issues arose on the appeal: (a) the applicant had received the council’s notice of refusal after the statutory period of 42 days; and (b) development had already commenced.
The planning inspector found that the refusal notice was out of time, and of no effect, but dismissed the appeal on the basis that permitted development rights could not apply to the development as such development had already commenced (given the finding as fact that brick footings had been put in place in the approximate position of the rear extension).
The applicant judicially reviewed the inspector’s decision primarily on the grounds that the interpretation of the GPDO, such that residential ‘prior approval’ permitted development rights could not apply to commenced developments, was flawed as a matter of law. Another ground raised was of mistaken fact on the argument it constituted an error of law in that the brick footings were not in the same place as the proposed development (and thus commencement had not occurred).
The High Court found that the residential ‘prior approval’ permitted development rights in question did not apply to developments that had already commenced. The inspector had made no error of law. Mr John Howell QC (sitting as a Deputy High Court Judge) noted in particular the use of the term ‘proposed development’ within the Class A GPDO conditions for the subject residential prior approval. The judge reasoned that a commenced development could no longer be described as a proposed development. He concluded his thoughts on the issue by stating:
“In my judgment it would plainly be absurd for the question whether or not "prior approval" as to the impact of "the proposed development" on the amenity of any adjoining premises should be considered merely by reference to what is still remains to be done and for only that to receive prior approval. What needs to be considered and approved is the whole development. That is why information about "the proposed development" must be provided by the developer to the Local Authority under sub-paragraph (2) "before beginning the development".
On the mistaken facts ground of challenge, Mr Howell QC summarised the law as:
“Although there is no precise code for determining when an error of fact may constitute an error of law, as the Court of Appeal found in E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044 at [66], there must have been a mistake as to an existing fact; the mistake must be established, in the sense that it is uncontentious and objectively verifiable; the Claimant or her advisers must not have been responsible for the mistake; and the mistake must have been material to the reasoning: see also R (Patel) v Secretary of State for Communities and Local Government [2016] EWHC 3354 per Ouseley J at [22].”
In dismissing this ground he then concluded that: ‘if a mistake was made by the Inspector, in my judgment the Claimant was responsible for it by failing to take issue with the Council's statement that the depth was in fact 6 metres as recorded by one of their Building Control officers. The Inspector was entitled to expect that the Claimant would dispute that contention if it had in fact been mistaken’.
Accordingly, the judicial review was dismissed.
Lesson: if landowners wish to exercise residential ‘prior approval’ permitted development rights then they must ensure they do not commence development before the prior approval has been determined under the conditions of the GPDO. If development has commenced then ‘retrospective’ express planning permission will be necessary.
This interpretation will apply to any similar ‘prior approval’ permitted development rights granted by the GPDO that refer to ‘proposed development’. Class Q (agricultural buildings to dwellinghouses) is an example.
In addition, if there are any disputes as to the facts of a planning appeal then best practice is for parties to raise it direct with the inspector or otherwise any mistaken fact of the inspector will likely not constitute an error of law.
