High Court gives additional clarity on the 56-day rule in overturning Wokingham Borough Council’s decision to refuse prior approval after determination deadline.
In a ruling issued late in July, the High Court upheld a legal challenge against Wokingham Borough Council’s refusal of a prior approval planning application, which was issued despite the authority’s missing the statutory 56-day deadline for determination.
The original application, submitted under Class Q of the General Permitted Development Order (GPDO), related to the prospective conversion of an agricultural barn to a single dwelling at Warren Farm, Wokingham. The application was supported by all documents necessary for validation, triggering the start of a 56-day period for the Council to determine the application.
However, the Council requested an extension of time in order to give further consideration to the proposals. The applicant agreed however the Council later refused the application in any case, prompting the applicant to seek leave to challenge the decision.
Presiding Judge Mark Ockelton, QC was clear in his judgement, stating that “where a period is specified, the deemed grant of planning permission takes place at the end of that period, so the authority’s decision must be before that", following a hearing in June.
To a large extent, the judgement confirms the already widely accepted interpretation of the GPDO, however the additional clarification has some key implications:
What may seem a positive judgement ensuring that Councils are unable to pressurise developers/landowners into agreeing extensions of time, delaying projects, and instead incentivise timely decision-making is not without its risks.
While the benefits above are implicit from the judgement, this does not overcome the issue that – as confirmed by other case law – a Council’s failure to determine an application made (for instance) under Class Q does not automatically allow a developer to proceed. The proposed development must still meet the basic requirements of the Class in order to be permitted development in the first place.
In practice, this means that applicants may be left in limbo as considerable uncertainty surrounds any scheme that has not been determined but has overrun the 56-day deadline. While there does exist a proven route of appeal to the Planning Inspectorate against non-determination in such cases, the additional time and cost implications are significant. In short, it is generally better to have the decision in hand than not.
For Local Planning Authorities:
The judgement is a clear indictment of attempts to circumvent the provisions of the GPDO by agreeing alternative timescales, and a tacit directive to adopt a more proactive approach in dealing with prior approval applications.
Given that prior approval is intended to be a ‘planning permission-lite’, using a reduced set of planning considerations to streamline the process, it should not be overly challenging for Council’s to deal with applications within the same statutory period as any other minor application, albeit the application fee is proportionately reduced.
Local Planning Authorities have the power under Class Q to request additional information; clearly they should do so in a timely manner which will mean undertaking an early review of applications and forming an initial judgement. It is also in applicants’ interest to supply this information promptly, potentially front-loading the production of suitable documentation where this is likely to be requested in the course of consideration.
To discuss your own prior approval application, appeal or other planning matter, please call or email Chris Marsh, Senior Planner, or any of the planning team at Evans Jones on 0800 001 4090.