Gluck v Secretary of State for Housing, Communities And Local Government & Anor

Article 7(c) of the Town and Country Planning (General Permitted Development) Order 2015 applies both where Schedule 2 specifies a decision period and where the default eight-week period applies. A 56-day period for prior approval may therefore be extended by agreement.

An extension need not itself be made in writing, but the parties’ agreement must be evidenced in writing. It must identify the longer period agreed. Planning correspondence should be construed with practical good sense rather than contractual formalism. In context, an email acknowledging a proposed extension, following an oral agreement and without dissent, may evidence the authority’s agreement.

Mr Gluck sought prior approval under Class O of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 2015 to convert two office buildings into residential flats. The Council issued refusals on noise grounds after the ordinary 56-day period had elapsed, but following email exchanges concerning an extension until 12 May 2018.

A planning inspector dismissed Mr Gluck’s appeals. The inspector concluded that the parties had agreed in writing to extend the decision period. Holgate J dismissed Mr Gluck’s statutory challenge under section 288 of the Town and Country Planning Act 1990: [2020] EWHC 161 (Admin).

The appeal concerned whether article 7(c) could extend the 56-day period in paragraph W(11)(c), and whether the parties had made a qualifying agreement.

1. Appeal dismissed unanimously. Article 7(c) of the Town and Country Planning (General Permitted Development) Order 2015 provides an alternative both to article 7(a), concerning periods specified in Schedule 2, and to article 7(b), concerning the default eight-week period. The 56-day period in paragraph W(11)(c) of Part 3 of Schedule 2 was accordingly capable of extension by agreement.

2. The wording and structure of article 7 supported that construction. Article 7(a) would add little if article 7(c) could qualify only article 7(b). Article 7ZA(9), and the practical operation of the prior-approval regime, also showed that an agreed extension could apply to a Schedule 2 period. The construction enabled parties to obtain technical material or discuss issues without forcing an avoidable refusal, while preserving the applicant’s protection because an extension required agreement.

3. Article 7(c) did not require the agreement itself to be made in writing. It required an agreement between the applicant and authority which was evidenced in writing. The agreement also had to identify the longer period. The court applied a practical and non-formalistic approach appropriate to planning decision-making, rather than contractual rules concerning offer and acceptance.

4. On the particular correspondence, an oral agreement to extend time had preceded the applicant’s agent’s email proposing 12 May 2018. The officer’s response, thanking the agent and voicing no objection, was properly read as acceptance on the Council’s behalf. The second paragraph addressed the noise issue, not the extension. Written evidence therefore emanated from both parties, and the Council’s decisions were made within the extended period.

5. Newey LJ considered that writing from each party was ordinarily necessary. Henderson and Hickinbottom LJJ disagreed, considering that article 7(c) prescribed no particular source or form for the written evidence. That difference was unnecessary to the result. All members of the court strongly encouraged both sides promptly to record any agreed extension in writing.

• Court of Appeal (Civil Division): Dismissed Mr Gluck’s appeal and upheld the conclusion that the 56-day period had been validly extended: [2020] EWCA Civ 1756.
• High Court, Planning Court: Holgate J dismissed the section 288 challenge to the inspector’s decisions: [2020] EWHC 161 (Admin).
• Planning inspector: Dismissed the planning appeals on 2 May 2019, holding both that time had been extended and that the proposals were unacceptable on noise grounds.