Quashing of timely prior approval under the GPDO does not trigger deemed consent rule
Planning & Environment, Local Government
The High Court has confirmed that the quashing of a local planning authority’s timely notification of prior approval does not retrospectively trigger the 56-day deemed consent rule in Schedule 2, Part 3, paragraph W(11) of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO). Instead, in such cases, the application must be redetermined by the local planning authority, which has a further 56-day period (subject to any agreed extension of time) within which to notify the applicant of a fresh decision. The High Court decision can be read in full here.
Ruchi Parekh acted for the Secretary of State for Housing, Communities and Local Government, instructed by the Government Legal Department.
Background
The issue was addressed by the High Court for the first time in R (Di Mambro) v East Devon District Council and SSHCLG. The case concerned a Council’s decision to give notice to the interested party (IP) of prior approval in relation to development of land under Schedule 2, Part 3, Class R of the GPDO (i.e. the change of use from agricultural buildings to a flexible commercial use). The Council’s notification was given within the 56-day period from when the IP made their application as to whether prior approval would be required.
Following pre-action correspondence from the Claimant, the Council conceded that it had not properly addressed the ‘headline’ requirements as to whether the subject building was an agricultural building and whether it fell within the scope of Class R permitted development rights. Accordingly, the Claimant and the Council agreed a consent order providing for: the decision to be quashed; the IP’s application to be remitted to the Council for re-determination, and directions for dealing with the issue of additional remedies sought by the Claimant.
The Claimant had raised the possibility of a section 4 declaration of compatibility under the Human Rights Act 1988 (HRA) in relation to the GPDO, prompting an intervention by the Secretary of State on the construction of the relevant provisions.
Interpretation of paragraph W(11)
The focus of the additional remedies hearing was on the proper interpretation of paragraph W(11). This paragraph sets out the procedure for applications for prior approval under Part 3, and provides as follows:
“The development must not begin before the occurrent of one of the following –
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”
The effect of paragraph W(11) is therefore one of deemed consent to an application for prior approval (in the sense that the applicant is not thereafter precluded from beginning the development) if the local planning authority has not within 56 days of receiving the application responded by notifying the applicant as to whether prior approval is given or refused.
While its application is straight-forward in cases where notification is not given in time – see for e.g. R (Nunn) v First Secretary of State [2005] EWCA Civ 101 – the rule has not been tested in cases where timely notification is given, but where the decision is ultimately quashed on judicial review. The Claimant argued that the deemed consent is triggered upon the quashing of such a decision, meaning that an applicant is able to lawfully commence development, with the Claimant being deprived of an effective judicial remedy notwithstanding the decision being quashed.
HHJ Russen KC (sitting as a Judge of the High Court) rejected that argument, finding that on a plain reading of paragraph W(11) the deemed consent rule was not triggered by the subsequent quashing of a timely notification. Paragraph W(11)(a)-(c) contained true alternatives. The provision as a whole sought to strike a balance between allowing local planning authorities sufficient time to review applications (including ensuring sufficient time to consult local communities) while at the same time ensuring that development deemed appropriate in principle by Parliament is not held up by delays within those planning authorities. The objective of avoiding delays is specifically met by the deeming provision in paragraph W(11)(c), while W(11)(a)-(b) are geared towards the objective of considered decision-making by local planning authorities.
Of particular importance is the fact that while the decision is quashed in such cases, it does not airbrush from history the fact of timely notification. The Court drew assistance from Boddington v British Transport Police [1999] 2 AC 143 and R (Majera) v Home Secretary [2021] UKSC 46, which confirm that even where an administrative act has been successfully challenged, it does not necessarily follow that the act is void from its inception and incapable of ever having produced legal effects.
The Judge further noted that: (i) it was not necessary to invoke the interpretative obligation under section 3 HRA to reach his conclusions on the meaning of paragraph W(11); and (ii) there was no basis on which to consider a section 4 HRA declaration of incompatibility, not least because the primary legislation (TCPA 1990) does not in and of itself require the incompatible provisions of the subordinate legislation.
Meaning of the Consent Order
The Judge held that a further reason to distinguish Nunn was paragraph 3 of the consent order in this case, which provided for the application to be remitted and redetermined. As such, the effect of the order was clear: the Council had a further 56 days from the date when the IP’s application was remitted (or such longer period as may be agreed between the Council and the IP) to make and notify him of its decision. It follows that this limb of the order left no place for concluding that the deemed consent rule may have been triggered on the quashing of the original decision.
Headline requirements
An additional reason why the Judge decided that no further remedy was required was because of the Claimant’s arguments concerning the headline or definitional requirements of Class R not being met by the proposed development. If the Claimant is correct in that submission, then it follows that the IP simply does not benefit from the permitted development rights and cannot lawfully commence development. The issue was one for the Council’s planning judgment, based on an investigation of the facts – not one for the Court.
Article 6 ECHR remedies
The Judge dealt finally with the claim to alternative remedies which had been made by reference to article 6 of the European Convention on Human Rights (ECHR). The Claimant’s case was that if development were allowed to proceed notwithstanding the quashing order, then that would amount to a breach of her article 6 right to a fair trial as she would be deprived of an effective remedy. For the reasons already given, the basic premise of that argument was rejected because the deemed consent rule had not been triggered.
However, and for completeness, the Judge addressed the article 6 arguments more generally, with a particular focus on the Claimant’s claim to damages under section 8 HRA. Again, the Judge distinguished Nunn and noted that when making its decision, the Council was not acting as an independent and impartial tribunal within the meaning of article 6, such that the Council itself was not in breach of section 6(1) HRA. Any hypothetical breach would arise a result of a deficiency in the secondary legislation – and such infringement could only be avoided by interpreting paragraph W(11) in an HRA-compliant manner.
But even this was dependent on the Claimant demonstrating that she is a ‘victim’ (within the meaning of section 7 HRA) which raised the question of whether the decision involved a determination of her “civil rights” within the meaning of section 6(1) HRA. The Court concluded that the Claimant’s interest in the IP’s application was too tenuous and the consequences for her of the development proceeding were too remote to trigger article 6(1); she did not live in the area near the development and her opposition was based on what she believed to be altruistic grounds.
Read the full judgement here.
