Winters v Secretary of State for Communities And Local Government & Anor

Under Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015, prior approval concerns the whole proposed development. An application cannot validly be made under paragraph A.4(2) after the development has begun. The 42-day deemed-consent provision does not retrospectively authorise works begun before the application. Any resulting need to apply for planning permission is a consequence of the statutory scheme, not a penalty.

A planning inspector’s inquiry is reviewed on Wednesbury principles. The inspector determines the manner and intensity of inquiry required, provided reasonable steps are taken to obtain material information. A material-error-of-fact challenge also requires an objectively verifiable mistake, responsibility not attributable to the claimant, and materiality to the reasoning.

The claimant applied for prior approval for a six-metre rear extension under Class A, Part 1, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015. The local planning authority refused prior approval. The claimant appealed under section 78 of the Town and Country Planning Act 1990.

The inspector found that the authority had failed to notify the claimant of its decision within 42 days, but dismissed the appeal because construction of the extension had begun before the prior-approval application. The claimant sought to quash that decision under section 288 of the 1990 Act, challenging the legal significance of commencing development, the effect of the missed 42-day period, and the inspector’s factual and investigative conclusions.

1. Application concerning proposed development. The application and any prior approval under paragraph A.4 concern a proposed development capable of being authorised by Class A. The information required by paragraph A.4(2), the neighbour-notification process, and any approval relate to the whole proposed development. They do not authorise development already begun, whether partially or wholly completed.
2. Effect of commencement. A developer cannot lawfully make an application under paragraph A.4(2) in respect of development that has already begun. Paragraph A.4(3) does not make such an application valid merely because the authority has a power, rather than a duty, to refuse an application. If the conditions are not complied with, an application for planning permission may be required, including permission for already-completed works under section 73A of the Town and Country Planning Act 1990. That consequence is not a penalty. Practicality cannot displace the legal effect of the GPDO.
3. Missed 42-day period. Once 42 days have expired without written notice that prior approval is unnecessary or has been granted, the proposed development may be carried out in accordance with the information supplied before development began. That deemed permission does not authorise any part of the development begun before the application. The inspector was therefore not obliged to allow the appeal merely because the authority’s notice was late.
4. Inquiry and factual error. The intensity of an inspector’s inquiry is a matter for the decision-maker, subject to Wednesbury review. The inspector had invited submissions, considered the building-control evidence, the photograph, the site visit and the claimant’s response. He was entitled, on the balance of probabilities, to find that construction of the rear extension had begun. No material error of fact was established. Any mistake about the wall’s depth was not objectively established and, in any event, the claimant had not disputed the material measurement when given the opportunity.
5. The section 288 application was dismissed.

The judgment was a first-instance challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s dismissal of a section 78 appeal. The application to quash the inspector’s decision was dismissed.