Rachel Lee and Christos Paphiti examine the time period for determination of Prior Approval (‘PA’) applications and explore how a local authority can extend the time period for determination.
The basics of PA applications
Certain types of development are deemed to have planning permission without the need to submit a planning application for planning permission – this is known as ‘permitted development’. The relevant legislation is the Town and Country Planning (General Permitted Development) (England) Order 2015 (‘GPDO 2015’).
For certain types of permitted development, there is a requirement on the developer to submit an application to the local planning authority for its prior approval (‘PA’) or for a determination as to whether PA is required.
The Government is pressing ahead with their build agenda and the trend to increase, and expand upon, the categories of permitted development rights shows no signs of slowing. For example, the new class E business to residential class permitted development right is being introduced from August 2021.
Time period for determination
The local planning authority must make a decision on a PA application within the relevant time period specified in Schedule 2 to GPDO 2015 and an applicant should not commence the development until the local planning authority has issued its determination.
A local planning authority has to be very aware of the time periods for determining PAs and should ensure that PA applications are dealt with efficiently and promptly and that the 8 week deadline is calculated correctly. A development could be ‘deemed approved’ if the time period for determination expires and no decision notice has been issued.
If the time period expires without a determination, the local planning authority may lose the opportunity to refuse a proposal that fails to meet the conditions set out under the relevant class of permitted development and/or fail to ensure that the permitted development proceeds with appropriate conditions, for example, ensuring permanent provision of refuse, recycling and cycle facilities. It is crucial that the local planning authority correctly calculates the deadline for determining an application; a key point is that the 8 weeks includes the date on which a valid application is received.
By default, this time period is an 8-week period from when the application is received, but this can vary depending on the type of proposal. Article 7 of GDPO 2015 says that the time period for determination will be:
- within the period specified in Schedule 2 (see below),
- where no period is specified, within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or
- within such longer period as may be agreed by the applicant and the authority in writing.
Two examples where Schedule 2 to GDPO 2015 sets out a time limit are Class A changes (from restaurants, cafes, takeaways, or pubs changing to retail) and Class T (from business, hotel etc. to state-funded schools or registered nursery). The period is 8 weeks for both.
Extending the time period for determination
The time period for determination can be extended if the parties are in agreement: Article 7(c) of GDPO 2015.
The case of Gluck v Secretary of State for Housing Communities and Local Government  EWHC 161 Admin concerned Class O permitted development rights which allow a change of use from offices to residential accommodation. In that case, the judge determined that:
“Article 7 must be read as if limb (c) is an alternative to both limbs (a) and (b). The consequence is that any of the prior approval time periods specified either in Schedule 2 or in Article 7 is capable of being extended by an agreement by the applicant and the LPA in writing.” (Para 85).
The judge ruled (at paragraph 102 of his judgment) that “I do not think that limb (c) necessarily insists upon an agreement being expressed by both parties in writing…it is sufficient that a verbal agreement was made by both parties which was then appropriately evidenced in writing”.
Therefore, local planning authorities can rely on Article 7(c) of GDPO 2015 when dealing with a PA application if they need more time to deal with the matter. As a matter of good practice, and to avoid disputes, it will be important to have evidence of any time extension properly documented between the applicant and the local planning authority. A local planning authority will need a clear indication of agreement by the applicant to extend the time frame.
It could be argued that processing these PA applications is not necessarily an easy or quick task, nor should it be. The number of PA applications is likely to rise, not necessarily matched by resources (or income from PD application fees). As the permitted development regime expands and the list of PA considerations for the various types of permitted development increases (for example, the recent introduction last month of minimum space standards for new permitted development homes) the ability to extend the determination time frame and the interpretation in Gluck of Article 7 of the GPDO 2015 may prove an essential tool for local authorities.
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