CAB Housing Ltd. v Secretary of State for Levelling Up, Housing and Communities

The Court of Appeal dismissed the appellant’s challenge to the interpretation of Class AA of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”). The court held that (i) the prior‑approval process under paragraph AA.2(3) may legitimately involve consideration of the scale of a proposed upward extension and that scale is therefore controllable within the ambit of the prior approval controls; (ii) the phrase "adjoining premises" in paragraph AA.2(3)(a)(i) bears a wider meaning (premises lying close to the site), not a rigidly contiguous-only meaning; and (iii) the terms "amenity" and "external appearance" in paragraph AA.2(3)(a) are not confined to the narrow examples that follow the word "including" and may encompass other relevant factors (for example outlook, bulk, massing and impacts on neighbouring premises and the locality). The court concluded these interpretations were consistent with the statutory scheme (including section 60 of the Town and Country Planning Act 1990), the structure of Class AA and the purpose of the prior approval process.

This is an appellate judgment on the interpretation of the permitted development right in Class AA (enlargement of a dwellinghouse by construction of additional storeys) of Part 1 of Schedule 2 to the GPDO. CAB Housing sought statutory review of an inspector’s decision (the inspector dismissed CAB Housing’s appeal against Broxbourne Borough Council’s refusal of a prior approval application for a single additional storey at 31 Gaywood Avenue). Holgate J. dismissed the statutory review and CAB Housing appealed to the Court of Appeal.

Nature of the application / relief sought: CAB Housing challenged the inspector’s decision as legally erroneous in its interpretation of Class AA; the appeal to the Court of Appeal attacked Holgate J.’s dismissal of that challenge.

Issues framed: The single ground of appeal raised three statutory interpretation questions: (1) whether the prior approval stage may assess the scale of the proposal (or whether scale is fixed by the permitted development right); (2) whether "adjoining premises" in AA.2(3)(a)(i) means only contiguous or abutting properties; and (3) whether the prior approval considerations for "amenity" and for "external appearance" are confined to the narrow examples listed (overlooking, privacy, loss of light; and the principal elevation and any side elevation fronting a highway respectively).

Court’s reasoning and outcome: The court analysed the GPDO in light of Part III of the Town and Country Planning Act 1990, including section 60, and relevant authorities. It held that the permitted development right and the prior approval mechanism operate together, so that the prior approval process may legitimately consider matters of scale where they are relevant to the prior‑approval topics in AA.2(3). The court adopted a pragmatic statutory construction of "adjoining premises" to cover premises lying close to the site (not only those strictly contiguous). On the terms "amenity" and "external appearance" the court concluded the examples introduced by "including" were illustrative, not exhaustive, so other relevant amenity and appearance matters (such as outlook, bulk and local impact) could be assessed at prior approval. Applying those principles the court found no error in the inspector’s approach or in Holgate J.’s conclusions and dismissed the appeal.

Procedural path: appeal from Holgate J. ([2022] EWHC 208 (Admin)); permission to appeal granted by Lewison L.J.; determination by the Court of Appeal on 23 February 2023.

Appeal dismissed. The Court of Appeal upheld Holgate J.’s interpretation of Class AA: (i) prior approval may encompass assessment of the scale of the proposed development where scale is relevant to the matters in AA.2(3); (ii) "adjoining premises" in AA.2(3)(a)(i) has a wider meaning of premises lying close to the site, not only strictly contiguous premises; and (iii) the phrases "impact on the amenity" and "external appearance" are not limited to the illustrative items introduced by "including" and may embrace other relevant factors such as outlook, bulk, massing and impacts on neighbouring premises and the locality. The inspector’s decision and Holgate J.’s dismissal of the statutory review were not unlawfully decided.

Appeal to the Court of Appeal from the High Court (King’s Bench Division, Planning Court) where Holgate J. dismissed the claimant’s statutory review of the inspector’s decision ([2022] EWHC 208 (Admin)). Permission to appeal was granted by Lewison L.J.; the Court of Appeal determined the appeal on 23 February 2023 ([2023] EWCA Civ 194).