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

Under article 7 of the Town and Country Planning (General Permitted Development) (England) Order 2015, the power to agree a longer determination period applies to prior approval procedures whether the original period is specified in Schedule 2 or supplied by article 7. This includes applications asking whether prior approval is required and applications for prior approval itself. An agreement may be made orally and then sufficiently evidenced in writing; article 7(c) does not require both parties to express their agreement in writing. The court also confirmed that prior approval provisions must be read as an integrated statutory code, including hybrid procedures involving separate periods for the two stages.

The claimant challenged four decisions concerning two applications for permitted development rights under Class O of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. The applications sought determinations of whether prior approval was required for office-to-residential changes of use. The local planning authority issued refusals after the 56-day period in paragraph W(11)(c), and the claimant appealed to the Secretary of State.

The Inspector concluded that the determination period had been extended by agreement in writing and dismissed the planning appeals. He also refused costs. The central issues were whether the period could be extended under article 7(c), whether an agreement had been reached and adequately evidenced, and whether an estoppel by convention prevented the claimant from challenging the extension.

1. Construction of article 7. The claims were dismissed. Article 7 applies to both forms of prior approval procedure: an application for approval and an application for a determination whether approval is required. Its three limbs are alternatives, and limb (c) permits an agreed extension to periods specified in Schedule 2 as well as to the default eight-week period in limb (b) (paras [52]-[54], [74]-[85]).
2. The Town and Country Planning (General Permitted Development) (England) Order 2015 must be read as a coherent procedural code. Article 3(1), article 7 and Schedule 2 are interdependent. The wording of provisions such as Class O, paragraph O.2 and paragraph W is laconic, and a literal reading would produce incomplete or unworkable results. Hybrid provisions, where different stages have different periods, reinforce the conclusion that article 7(c) is not confined to applications where prior approval is always required (paras [38]-[39], [56]-[71]).
3. The policy considerations also supported that construction. Extensions can allow adequate information, consultation and technical assessment, and may avoid unnecessary refusals, appeals and delay. The deemed approval protection is not removed because the parties agree an extension (paras [72]-[75]).
4. The decision in Warren Farm (Wokingham) Ltd v Wokingham Borough Council [2019] EWHC 2007 (Admin) was not followed. The court considered there to be powerful reasons for disagreeing with its construction of article 7, including its failure to address hybrid procedures (paras [82]-[85]).
5. Written evidence of agreement. Article 7(c) concerns documentary evidence of an agreement, rather than contractual or conveyancing formalities. It is sufficient that the parties reach an oral agreement and that the agreement is subsequently evidenced in writing, for example by an email from one party to the other. Both parties need not independently confirm the extension in writing, particularly where the agreement and its terms are undisputed (paras [99]-[108]).
6. The Inspector was entitled to find that the claimant and the authority had agreed an extension. The claimant’s agent’s email, read with the surrounding communications, adequately recorded the agreement. The factual evidence supporting the agreement was unchallenged, and there was no error in the Inspector’s conclusions (paras [86]-[98], [102]-[103]).
7. The proposed estoppel by convention issue was not determined. It had not been raised before the Inspector and might require further fact-finding and full argument, including consideration of R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348 (paras [109]-[110]).

All four claims were dismissed.

First-instance judicial review proceedings under section 288 of the Town and Country Planning Act 1990. The court dismissed all four claims challenging the Inspector’s planning appeal and costs decisions.