Late prior approvals could mean green light for planning permission

Under the Town and Country Planning (General Permitted Development)(England) Order 2015 (GDPO), prior approval decisions for plans to turn agricultural buildings into dwellings need to be made within 56 days. Despite this, Wokingham Borough Council requested more time to consider an application submitted by Warren Farm, later refusing the application.

The developer secured the High Court’s approval to challenge the council’s decision on the basis that a refusal of prior approval must be issued within 56 days.

In granting permission for the claim to be brought, Judge Alice Robinson wrote that the GDPO may include an intention to allow extensions but said, "whether the language of the 2015 order is effective to achieve that intention is another matter and the contrary is arguable".

In July 2019, the High Court ruled in favour of the farm. In his decision, Judge Mark Ockelton QC said that "Where the legislator has fixed a period of time accompanied by inaction on the part of an authority as having a specified effect to the advantage of a developer, the authority is constrained to act promptly if it wishes to act at all".

The effect of that time limit passing without a decision is that the proposed development can proceed.

The judge concluded that "where a period is specified, the granting (or not) of planning permission takes place at the end of that period, so that the authority's decision must be before that. If no period be specified, the deemed grant takes place only when a decision is made”.

This meant that the judge had no option but to overturn the council's refusal of prior approval, ruling that the council had no power to issue such a decision as “the deemed grant of planning permission took place nearly three weeks earlier".

Worth noting is that the permission would only be granted should the proposed development also fall firmly within the other conditions attached to the permitted development rights. In those cases, it is now clear that: where the GPDO prescribes a period of time for the issuing of prior approval, the planning authority must make their determination within that timescale or else risk the automatic granting of planning permission.

To discuss your planning needs, please get in touch with Fred Quartermain or a member of the Planning team.

[1] Warren Farm (Wokingham) Limited v Wokingham Borough Council.

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