LW Zenith Limited, R (on the application of) v Secretary of State for Levelling Up, Housing and Communities

A prior-approval application under the Town and Country Planning (General Permitted Development) (England) Order 2015 is distinct from an application for planning permission and is confined to the matters specified by the permitted-development regime.

Nevertheless, where operational works already have planning permission, a negative condition preventing occupation until those works are completed may be imposed if it is reasonably related to the subject matter of the prior approval. An inspector must consider an obvious and simple solution of that kind where it is material to satisfying the statutory prior-approval requirement. Procedural fairness may also require the applicant to be given an opportunity to respond to material representations raising the issue.

The claimant sought approval under Class O of the Town and Country Planning (General Permitted Development) (England) Order 2015 for conversion of an office building into 34 flats. The local planning authority had refused approval on the ground that the relevant permitted-development right had been removed by an Article 4 direction. The inspector rejected that ground, but refused prior approval because 11 flats would not have adequate natural light without additional windows.

The additional windows had already received planning permission under a 2019 permission, which remained extant and had been implemented. The inspector concluded that she could not require completion of that permission through a prior-approval condition. The claimant challenged that decision on statutory interpretation, irrelevant or omitted considerations, and procedural unfairness.

1. Claim allowed. The inspector’s decision was quashed and the matter, including consequential costs, was remitted for redetermination.
2. An application for prior approval is materially different from an application for planning permission. The Town and Country Planning Act 1990 gives wide powers in determining planning applications, whereas the Town and Country Planning (General Permitted Development) (England) Order 2015 identifies the particular planning matters requiring approval and limits the authority’s control to those matters.
3. Paragraph W(13) of the Town and Country Planning (General Permitted Development) (England) Order 2015 permits conditions reasonably related to the subject matter of the prior approval. Although the inspector could not require the entirety of the separately permitted 2019 development to be carried out, the wording of paragraph W(13) and the policy guidance did not prevent a negative condition restricting occupation until the already-approved windows had been installed.
4. That condition was directly related to the requirement in paragraph O.2(1)(e) that all habitable rooms should have adequate natural light. The inspector’s failure to grapple with this obvious solution meant that she failed to take account of a material consideration.
5. Fairness did not necessarily require disclosure of every supplementary representation, but it did require disclosure here. The claimant’s response showed that it had not addressed the condition issue, while the authority’s supplementary comments did. The claimant should have been given an opportunity to respond, since there was a real possibility that its arguments concerning the condition would have affected the outcome.

First-instance judicial review. The judgment does not state any subsequent appellate decision.