Prior Approval consents

Beware the limitations and conditions of ‘Prior Approval’ consents, writes Izindi Visagie.

There is a common misconception that, for enforcement purposes, planning decisions in relation to the application of Prior Approval are interpreted in the same way as other planning permissions granted by an LPA, i.e. that all terms and conditions are contained within the four corners of the decision notice. Not so for Prior Approval consents.

Prior Approval is not a permission in itself. The permission is contained in the GPDO. The GPDO makes it a condition of the permission that Prior Approval is obtained (or confirmed not necessary as appropriate). The act of securing a Prior Approval consent is effectively a discharge of a pre-commencement condition. To be lawful, the development must still comply with the relevant terms and conditions of the GPDO. Granting of Prior Approval does not necessarily mean that the development complies with the GPDO. If it doesn’t comply, it doesn’t comply and granting prior approval does not alter that. Granting Prior Approval simply means that the condition is satisfied.

One important limitation in the GPDO is Article 3(5) which provides that, irrespective of whether it meets the requirements in the various parts of Schedule 2 or 3 etc, development is not PD where: 

 “in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful” 

This limitation is tested at the time of carrying out the development, not at the time of securing the Prior Approval consent. 

The application of Article 3(5) took centre stage in the recent High Court case of RSBS Developments Limited v SoS HCLG & Brent [2020] EWHC 3077 (Admin)

The history

In June 2015 RSBS applied to the Council for a determination as to whether its Prior Approval would be required for the change of use of the premises from office use to 16 flats. In August 2015 the Council issued a decision notice confirming that Prior Approval was required and Prior Approval consent was granted. Works commenced in September 2015. 

In November 2015 RSBS applied for and was granted planning permission for a first floor extension. An informative made clear the permission could not be implemented in conjunction with the works in the prior approval application. 

However, between December 2015 and February 2016 an altogether new extension was built, increasing the building by 4% in overall size.

The Planning Inspector determined that on the facts the change of use from office to residential use took place between mid-February 2016 and 18 June 2016. The conversion differed from the layout plans submitted with the prior approval application in a number of respects. 

After enforcement investigations RSBS reduced the size of the new extension to approximately its original size and in July 2017 applied for retrospective planning permission to retain the extension. The Council refused permission. 

In November 2017 RSBS applied for a certificate of lawfulness for existing residential use of some of the flats. This application was refused in February 2018. 

The Council then issued an enforcement notice against the use of the property as 16 flats in March 2019. 

The Appeals

On appeal, the Inspector dismissed an appeal against the enforcement notice appeal, an appeal against the refusal of the certificate of lawfulness and an appeal against the refusal of permission for retention of the extension. 

The Inspector found that as the unauthorised extension had been in “shell” form before the material change of use from office to residential took place, the change of use could not benefit from permitted development rights afforded by the GPDO due to the operation of Article 3(5). She also found that the change of use was unlawful because the development undertaken was substantially different to that permitted, such that the 2015 prior approval had not been implemented. 

The works to reduce the extension in size could also not implement the Prior Approval consent or retrospectively render the change of use permitted development. As at the time of completion of the development, it was not permitted development and no future alteration could change that.

At appeal, the Inspector distinguished this case from R (Orange PCS) v Islington LBC [2006] EWCA Civ 157; [2006] JPL 1309 in which subsequent Conservation Area designation was determined not to remove a developer’s rights to build out a Prior Approval permission secured prior to the designation. 

As it happens, in August 2017 the Council introduced an Article 4 GDPO direction removing permitted development rights for the conversion of office buildings to residential use. 

High Court consideration

In the High Court Mrs Justice Lang dealt with the various grounds of challenge: 

• Ground 1: RSBS submitted that Article 3(5) of the GPDO was a prospective provision only. [explain relevance] Lang J however agreed with the Inspector that Article 3(5) prevented the development from being permitted development even though prior approval had been granted. 
• Ground 2: RSBS submitted that Article 3(5)(a) of the GPDO did not apply in this case because it was concerned with buildings, whereas the development in this case was a change of use. The Inspector had determined that the development was ‘in connection with a building’ and therefore Article 3(5)(a) applies. Lang J agreed the Inspector’s reasoning was correct. 
• Ground 3: RSBS claimed that since the offending extension had been reduced in size, the prior approval consent should be retrospectively implemented. The Inspector found that the building works (even the reduced version) were all unauthorised and as such article 3(5)(a) would still be engaged. The Inspector also said that even if she granted permission for the s78 scheme (the operational development), it would still not have the effect of implementing the permission that crystallised with the 2015 approval. Again, Lang J agreed that the inspector’s reasoning was sound. 

Costs were ordered against RSBS and subsequently RSBS was denied permission to appeal. 

The upshot is that the enforcement notice stands and RSBS will need to cease the use of the premises as 16 flats and remove all fittings and fixtures associated with the use of the premises as dwellings. 

Comment

The decision is a welcome confirmation of principles relating to Article 3(5). The judgment confirmed that the time for testing compliance of new development with the GPDO was the time of the development. As such, it confirmed that, if the existing building was unlawful and Article 3(5) applied, the new development would not be permitted development. It confirmed that no subsequent regularisation of the existing building would alter the fact that the new development was not permitted development. It confirmed that the fact that prior approval was granted was not determinative of whether new development complied with the GPDO in all respects. And it confirmed that Article 3(5) applies to use changes as much as operational development.  

But it also goes to show that, when considering enforcement, it is necessary to delve deeply into past planning decisions. The grant of prior approval is not a complete guide to whether past development was lawful. It also suggests that planners should be careful to include informatives if a development is thought not to comply with the GPDO despite the prior approval aspects being satisfied.

Izindi Visagie is a partner at Ivy Legal.