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Court of Appeal Upholds Extensions of Time for Prior Approval

Charles Streeten

The Court of Appeal has handed down judgment in Gluck v Secretary of State for Housing Communities and Local Government [2020] EWCA Civ 1756 and has upheld the judgment of Holgate J. in [2020] EWHC 161 Admin.

Three substantive judgements were given by Newey, Hickinbottom, and Henderson LJJ, all of whom upheld the first instance decision that the time limit for approving an application for prior approval under the Town and Country Planning (General Permitted Development) (England) Order 2015 could be extended by an agreement in writing.

All three Lords Justice also agreed that, on the specific facts of the case, an extension of time had been agreed in writing. They disagreed, however, as to what exactly was required to constitute such an agreement. 

Giving the first judgment, Newey LJ accepted the submission made on behalf of the Secretary of State, that, read naturally, Article 7 means that time may be extended by an agreement in writing pursuant to article 7(c) either where a period is specified in schedule 2 or where the default 8-week period for which article 7(b) provides is applicable. He also agreed with the Secretary of State’s submission that other provision in the GPDO supported this construction, as did a purposive reading of legislation.

As to what was required for an agreement in writing to exist, Newey LJ held that Article 7(c) of the GPDO demands no more than that an applicant and the local planning authority each agree in writing to a longer period. Provided the relevant extended time-frame is specified, it would be sufficient for the applicant and the local planning authority both to have evidenced in writing an agreement they had made orally, for example by exchange of emails. In his view, however, there must be something in writing from each of the applicant and the local planning authority. Nevertheless, he found that “in the very particular circumstances” of this case, the offer of an extension by email and a response from the local planning authority which read “thanks for your email” in the absence of dissent was sufficient to comprise such an agreement.

Hickinbottom and Hendreson LJJ agreed with the conclusion that there had been an agreement in writing, but both found that the written evidence of an agreement in writing my emanate from one party only. Both of their Lordships, however, strongly encouraged the eminently sensible practice whereby written agreements are acknowledged in writing by both parties, to avoid potential difficulties in future. 

The judgement of the Court of Appeal puts to bed the question of whether or not time for granting a prior approval application can be extended by agreement in writing, resolving the conflict in the authorities between the first instance judgment and the decision in R (Warren Farm (Wokingham) Ltd) v Wokingham Borough Council [2019] EWHC 2007 (Admin) which Holgate J. refused to follow. 

It is also a reminder of the importance of good sense and pragmatism when approaching the interpretation of statutory instruments in a planning context. Even when considering legislation, the Court will always have firmly in mind that the planning regime should not be infected by excessive legalism, and will interpret the Parliamentary intention accordingly. 

A copy of the judgment is available here.

Charles Streeten appeared for the successful Defendant, the Secretary of State for Housing Communities and Local Government, instructed by Shahnaz Zaidi of the Government Legal Department.