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Complying with a deemed grant of planning permission under the GPDO

The High Court has quashed a planning inspector’s decision allowing the conversion of an industrial warehouse to flats. Charles Streeten explains why.

In London Borough of Hackney v Secretary of State [2021] EWHC 720 (Admin) a developer had, in the course of 2016, submitted two separate applications for prior approval under Class P of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 to convert the ground and first floors of an industrial warehouse of the Ravensdale Industrial Estate into residential flats. The Council purported to refuse one of those applications, but did so 57 days after the application, such that the decision to refuse was ineffective.

The developer subsequently converted the building into flats, and at the same carried out various external alternations and extensions for which it did not have planning permission.

The London Borough of Hackney refused to grant retrospective planning permission for the changes made and enforced against the development as a whole.

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The developer appealed against the enforcement notices and an inquiry was held by the Secretary of State.

Following that Inquiry the inspector held that the use of the ground floor of the building was lawful by virtue of the deemed grant of planning permission under Class P, but that the first floor was not. Instead, she granted planning permission for the first floor under ground (a).

At this point, Hackney sought advice from fresh counsel, and brought challenges to the Inspector’s decision letter under sections 288 and 289 of the Town and Country Planning Act 1990.

Initially, those challenges were resisted in their entirety by both the Secretary of State and the developer. Following an oral hearing, permission was granted on all grounds by David Elvin QC (sitting as a deputy judge of the High Court) on 4 September 2020.

After the grant of permission the High Court handed down judgment in RSBS Developments Ltd v Secretary of State [2020] EWHC 3077 (Admin). That case makes clear that where there is any unlawful development of a building prior to the implementation of a deemed grant of planning permission under the GPDO, the permission granted by the GPDO cannot be relied upon. Hackney amended its claim to reflect this judgment, in light of which both the Secretary of State and the developer consented to judgment on the 289 appeal.

The Secretary of State maintained his resistance to Hackney’s grounds relating to the Inspector’s approach to development plan policy, he agreed with Hackney’s submission that the admitted errors were such that they vitiated the decision letter as a whole and that it should be quashed.

The developer, however, maintained its resistance to the quashing of the permission for the first floor units.

Following a hearing on 9 March 2021, Lang J. allowed the claim on all grounds. She found that not only did the error regarding the lawful use of the ground floor vitiate the permission, but also accepted all of Hackney’s other grounds finding that:

(1)    The Inspector had misinterpreted London Plan Policy 3.5. Specifically, she was wrong to hold that it did not apply to studio flats.

(2)    The Inspector had failed to have regard to outlook, which she herself had described as a main issue, and to distinguish it from daylight/sunlight impacts. Policy DM2 of the Hackney DMLP made outlook a mandatory material consideration and it should have been taken into account.

(3)    The Inspector failed to reach an overall conclusion on whether or not the development accorded with the development plan, read as a whole, and in doing so failed to apply the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004.

The case highlights the importance of carefully complying with a deemed grant of planning permission under the GPDO, and of understanding the distinction between sections 288 and 289 challenges. It is also a helpful reminder of the dangers of advancing tenuous arguments regarding the construction of development plan policy at appeal.

Charles Streeten is a barrister at Francis Taylor Building. He appeared for the successful Claimant/Appellant, the London Borough of Hackney, instructed by Christine Stephenson of Hackney Legal Services.

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