The enforcement notice was served in respect the material change of use of a building to use as 12 flats. 

The appellant had been granted prior approval (“PA”) for a change to 12 flats under Para.W and Class O, Part 3 of the GPDO 2015 (office to dwellinghouse). But the inspector ruled that the change carried out did not benefit from those PD rights because 1) operations involved in the redevelopment of that building prior to the change of use were unlawful (Article 3(5) GPDO 2015); and 2) the change had not been “in accordance with the details approved by the [LPA when it granted the PA]” (Para.W(12)(a), Part 3 GPDO 2015).

Both of those reasons were upheld by the judge. Of particular interest is the part of the judgment from paragraph 114 onwards dealing with reason 2 above.

The ‘operative’ part of the PA referred to the fact that the application had been “accompanied by” 4 plans/drawings. But in respect of 2 of the 4 subsequently listed drawings, the reference numbers given in the PA were incorrect- indeed no drawings with such reference numbers existed. And none of the 4 drawings was accompanied in the PA by the type of language which the courts have previously held would amount to incorporation into a consent. 

The inspector, on grounds of ambiguity as to what “details” (Para.W(12)(a)) had been approved, had regard to extrinsic documents, namely the two drawings accompanying the application which had not been correctly referred to in the PA. Those drawings showed a layout very different from what had actually been built, meaning the change of use was not authorised by the PA and Class O, Part 3.

The judge upheld the inspector’s decision and in so doing distinguished long-established case law on incorporation into consents. The Court held at paragraph 131-133: “What distinguishes prior approvals under the GPDO from planning permissions is the fact that the statutory code itself requires a consideration of the terms on which the prior approval is granted. This is the effect of paragraph W(12)(a). […] The Prior Approval having been granted by the Council, the Inspector was obliged by paragraph W(12)(a) to consider the terms on which it was granted. […] In short, it is not the words of the Prior Approval itself which serve to incorporate the drawings, it is the requirement found in paragraph W(12)(a) of the GPDO. And once it is acknowledged that the incorporated drawings contain an ambiguity, then it is permissible to have regard to extrinsic details from the application.”

Charles Forrest acted for the successful Defendant, the Secretary of State for Housing, Communities, and Local Government, instructed by Emel Djevdet of the Government Legal Department.

A copy of the judgment can be found here.