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Permitted development rights – local authority planners exert their control

On 18 January 2022, three cases were heard in the High Court regarding the interpretation of the Permitted Development Rights in Class AA and Paragraph AA. 1 of The Town and Country Planning (General Permitted Development) (England) Order 2015. Simon Kenneally and Ifath Nawaz look at the outcome.

The cases in Cab Housing Ltd & Ors v Secretary of State for Levelling Up, Housing and Communities & Ors [2022] EWHC 208 (Admin) (03 February 2022) concerned decisions made by local planning authorities to refuse permitted development in three separate schemes, as none of them satisfied the conditions for prior approval as set out under the permitted development rights.

The prior approval conditions are as follows:

3) The conditions in this sub-paragraph are as follows –

(a) before beginning the development, the developer must apply to the local planning authority for prior approval as to –

(i) impact on the amenity of any adjoining premises including overlooking, privacy and the loss of light;

(ii) the external appearance of the dwelling house, including the design and architectural features of –

(aa) the principal elevation of the dwelling house, and

(bb) any side elevation of the dwelling house that fronts a highway…

The cases answered three questions:

  1. What’s the interpretation of ‘adjoining premises’ — Is the planning authority’s control of impact on amenity limited to effects on properties abutting the subject property?
  2. Are the effects of the proposed development on the ‘adjoining premises’ limited to overlooking, privacy and loss of light or does it embrace “all aspects of the amenity of the neighbouring properties”?
  3. Is the planning authority’s control of the external appearance of the development limited to “design and architectural features of its principal elevation and any side elevation fronting a highway”?

The Court sided with the planning authorities’ position on all three of these points and the judgment of Mr Justice Holgate should give pause for thought for anyone going through the prior approval process. The pertinent points were as follows:

  1. ‘Adjoining premises’ does not mean those properties or buildings that immediately abut the subject property. It has a wider interpretation and planning authorities will take account of all neighbouring properties when considering the effects of the proposed development;
  2. The effects of the proposed development is not limited to overlooking, privacy and loss of light. The planning authorities may consider wider issues than those set out in the legislation;
  3. The permitted development rights do not grant permission for any particular ‘scale’ of development and that can be controlled by the planning authority under their prior approval provisions; the planning authority does not just need to consider the design and architectural features of its principal elevation and any side elevation fronting a highway.

Conclusion

The judgment makes it far more difficult for developers to understand the requirements that must be met for prior approval under the permitted development rights and there will, no doubt, be some perverse decisions from planning authorities relying on this interpretation of their powers.

Developers should (a) take the advice of a planning consultant before they enter the minefield of prior approval of permitted development; and (b) if necessary, take the advice of a planning solicitor.

Given the purpose of permitted development rights was to make it easier for developers to build new homes for people to ease the housing crisis, this decision would seem to put significant obstacles in the path of those aims.

Simon Kenneally is a partner and Ifath Nawaz is a Senior Consultant Solicitor – Planning & Environment at Buckles Solicitors.