CAB Housing Limited v Secretary of State for Levelling Up, Housing and Communities & Anor

A permitted development right under Class AA of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 remains contingent on prior approval for the specific proposal. Its generic limits do not confer an automatic entitlement to build to the maximum permitted scale.

The authority must exercise planning judgment on the prescribed matters. Scale may affect amenity, external appearance, air traffic and defence assets, and protected views. “Adjoining premises” includes premises lying close to the site, whether or not contiguous. The matters introduced by “including” are examples rather than an exhaustive list. Amenity may therefore encompass outlook, noise, activity and overshadowing. External appearance may include all elevations and effects on neighbouring premises and the locality.

CAB Housing Ltd sought prior approval to add a storey to a detached bungalow. Broxbourne Borough Council refused approval, and a planning inspector dismissed the developer’s appeal because the enlarged building would harm the amenity of neighbouring premises and its external appearance.

Holgate J dismissed an application for statutory review under section 288 of the Town and Country Planning Act 1990: [2022] EWHC 208 (Admin). The developer appealed, contending that Class AA fixed the permissible scale, confined “adjoining premises” to contiguous property, limited amenity to overlooking, privacy and loss of light, and restricted external-appearance control to specified elevations.

The central issue was the proper interpretation of the prior approval provisions in Class AA of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015.

1. Appeal dismissed. The inspector’s decision contained none of the alleged errors of law, and Holgate J had correctly rejected the statutory challenge. Andrews and Whipple LJJ agreed with the judgment of the Senior President of Tribunals.

2. Class AA’s permitted development right and its generic dimensional limits must be read with the conditions and prior approval procedure. Planning permission crystallises only when prior approval is granted. The development right, and the principle it recognises, are therefore contingent on approval of the specific proposal. Compliance with the maximum limits in paragraph AA.1 does not create an automatic entitlement to develop to those limits.

3. The local planning authority must exercise planning judgment on the matters specified in paragraph AA.2(3)(a). The scale, height, bulk and mass of a proposal may materially affect amenity, external appearance, air traffic and defence assets, or protected views. Scale is consequently subject to control through prior approval, although the authority may consider it only through the prescribed subject matters.

4. In paragraph AA.2(3)(a)(i), “adjoining premises” means premises lying close or contiguous to the site. It is not confined to premises sharing a boundary. That construction enables the authority to consider effects on nearby premises across a street or several doors away and accords with the notification provisions and the interchangeable use of “adjoining” and “neighbouring” in the statutory scheme.

5. The word “including” in paragraphs AA.2(3)(a)(i) and (ii) is illustrative rather than exhaustive. Amenity is not confined to overlooking, privacy and loss of light. Depending on the facts, it may include outlook, noise, activity and overshadowing.

6. “External appearance” is not confined to the principal elevation or a side elevation fronting a highway. The authority may consider other elevations, their design and architectural features, and the effect of the building’s external appearance on neighbouring premises and the locality. The prior approval process remains narrower and less demanding than a full planning application because the permissible exercise of judgment is confined by the legislation.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The inspector’s decision was lawful and the High Court’s dismissal of the statutory challenge was upheld: [2023] EWCA Civ 194.
2. High Court, Planning Court: Holgate J dismissed the application under section 288 of the Town and Country Planning Act 1990 for statutory review of the inspector’s decision: [2022] EWHC 208 (Admin).
3. Planning inspector: The inspector dismissed the developer’s appeal against the local planning authority’s refusal of prior approval.