Permitted Development – the 56-day period for determination of prior approval applications can be extended

On 31 January 2020, the High Court handed down its judgment in Gluck v Secretary of State for Housing Communities and Local Government [2020] EWHC 161 Admin reversing the decision handed down in 2019 in the case of R (Warren Farm (Wokingham) Limited) v Wokingham Borough Council [2019] EWHC 2007 (Admin).

Since the decision in Warren Farm it has been generally accepted that local authorities are unable to agree extensions of time when determining applications made for prior approval relating to permitted development under any Class in Schedule 2 to the Town and Country Planning (General Permitted Development Order) (“GDPO”) 2015. The Warren Farm case decided that the 56-day period for the determination of such applications could not be extended, even if the parties agreed. The effect of this was that if the local planning authority failed to determine the application within this 56-day period, deemed consent for the prior approval was given.

In the latest Gluck case, the judgment confirmed that the Warren Farm case should not be followed.

As in the Warren Farm case, the Claimant referred to the three alternative time limits under Article 7 of the Town and Country Planning (General Permitted Development) (England) Order 2015 for a prior approval to be determined by a local planning authority, namely –

(a) within any period specified in Schedule 2,
(b) where no period is so specified, within 8 weeks beginning with the day immediately following the receipt of the application by the local planning authority; or
(c) within such longer period as may be agreed by the applicant and the local planning authority in writing,

The Claimant argued that (c) is an alternative to (b), but not to (a) and that it is only where a period is not specified in Schedule 2, and the default position in (b) is engaged, that the ability to extend time by agreement under (c) applies.

In his judgment, Justice Holgate discussed the practical effect of treating time periods falling within paragraph (a) as incapable of extension would probably lead to more decisions by local planning authorities refusing applications (e.g. because the information provided in the time available for decision-making is inadequate) and more appeals to the Secretary of State. This would not be promoting efficient decision-making or encouraging acceptable forms of development to proceed without undue delay.

In his lordship’s judgment, Justice Holgate concluded that Article 7 must be read as if paragraph (c) is an alternative to both paragraphs (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.

Therefore, the judgment in Gluck restores the understanding that most had as to the interpretation of Article 7, and confirms that a written agreement (if only by an exchange of emails) between an applicant and a local planning authority to extend time for the determination of a prior approval application is effective for that purpose in all cases. Please note however that there would need to be some written evidence that both parties had agreed to extend time.