Clarification on the powers of local planning authorities

Class Q, Part 3, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the Order”) grants deemed planning permission for a change of use of an agricultural building to a dwellinghouse and any building operations reasonably necessary to convert the building to such use, subject to a number of limitations and conditions.

One of the conditions of this permitted development right is that prior approval must be sought from the local planning authority for determination of whether their prior approval is required for certain matters, including transport and highways, noise impacts, contamination, design and external appearance and flooding, and the Order sets out the procedure governing the application for such prior approval.

Paragraph W(11) of Schedule 2 of the Order provides that development cannot commence until one of the following events occurs:

(1)        the local planning authority gives written notice that prior approval is not required;

(2)        the local planning authority gives written notice granting prior approval; or

(3)        56 days expire following the date on which the application for prior approval was received by      the local planning authority without the authority giving notice of whether prior approval is   given or refused.

In the case of R on the Application of Warren Farm (Wokingham) Ltd v Wokingham Borough Council, a developer applied for prior approval to convert a barn to residential use. The local planning authority requested further time to consider the application, which the developer consented to and the local planning authority subsequently refused the application. The developer challenged the decision in the High Court on the basis that the local planning authority did not make the decision within 56 days.

The High Court confirmed that the decision must be made within the 56 days period above and the extension of time was unlawful. Accordingly, the application had deemed consent as a decision was not made within the requisite timeframes.

Whilst this case related to a change of use from agricultural to residential, the principle will apply to all permitted development rights where prior approval is required.

We have come across cases where local planning authorities have tried to refuse prior approval outside of the deadlines and so this case will be welcomed by developers to clarify the powers of local planning authorities.

Posted on: 30/08/2019

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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