Court of Appeal holds that time limit to determine prior approval applications can be extended by agreement under the permitted development order

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In Gluck v Secretary of State for Housing, Communities and Local Government and another [2020] EWCA Civ 1756, the Court of Appeal confirmed that the 56-day period within which an application for prior approval should be determined under paragraph W(11), Schedule 2, Part 3 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015) could be extended by agreement between the applicant and the Local Planning Authority.

The developer had applied for a change of use from offices to residential use under Class O, Schedule 2, Part 3 of the GPDO 2015. The Local Planning Authority had to determine the prior approval application within 56 days. Article 7 of the GDPO 2015 contained provisions relating to time limits and it stated that a decision on prior approval applications had to be made:

(a) within the period specified in Schedule 2;

(b) within 8 weeks if no period was specified;

(c) “within such longer period as may be agreed by the applicant and the authority in writing.

The Local Planning Authority informed the developer’s agent by email that his applications would be rejected because of the concerns about noise from nearby commercial premises. The agent asked the planning officer to delay making the decision until 12 May, when the authority’s principal environmental protection officer would have met with his acoustic surveyor. The planning officer thanked the agent for his email and indicated that he would discuss the matter with his manager, stating that he did not see how the application could be amended to address the noise concerns.

The developer’s solicitor then asserted that because the Local Planning Authority failed to notify the developer of its decision within the 56-day period, prior approval was deemed to be granted under Schedule 2, Part 3 paragraph W(11). He further asserted that there had been no agreement in writing to extend the time limit under article 7 of the GPDO 2015. The Court of Appeal was required to determine whether the 56-day period in Schedule 2, Part 3, Paragraph W(11)(c) could be extended by agreement pursuant to article 7 and, if so, whether it had been extended in the instant case.

Decision

The Court of Appeal held that the 56-day period referred to in Schedule 2, Part 3, paragraph W(11)(c) could be extended by agreement pursuant to article 7(c). The Court of Appeal said that “it made sense that periods specified in Schedule 2 should be capable of extension under article 7(c), or it would be impossible to extend such a period even where both a developer and the local planning authority wanted to do so, for example to allow the developer to supply further information or to hold discussions with the local planning authority or consultees. An application might raise technical issues calling for expert reports. If no extension were permitted, the application would have to be refused and a further application would have to be made with the additional information. An extension under article 7(c) allowed the scheme to work efficiently and sensibly and would not prejudice developers as time could not be extended without their agreement.”

The Court of Appeal went on further to say that the extension in time had been orally agreed between the principal planning officer and the planning consultant and that, although the agreement was not formally in writing, it was evidenced by emails between the parties and that was sufficient to extend the deadline. The Court of Appeal stated that it would be good practice for both the applicant and the Local Planning Authority to promptly acknowledge in writing any agreement they had made to extend time.