Prior Approval for Changes of Use: The Importance of Time

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Any attempt to refuse a prior approval application beyond the deadline will be unlawful

Planner Insight
Policy & Legislation
Author Iestyn John
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Under Part 3 of the General Permitted Development Order (the GPDO), it is possible to secure changes of use of a wide range of property types without the need to secure express planning permission, with only the much simpler prior approval process needing to be followed. Use of this part of the GDPO has, is an attractive way for developers and property owners to side-step many of the normal issues associated with getting planning permission.

As part of the regulations governing the prior approval process, local authorities are required to determine such applications within a specific period; typically 56 days from the date of application. In certain instances, if a decision is not made within this time period, the decision can be taken as being a deemed approval. The regulations do, make reference to these deadlines being capable of extension by agreement, which has led to some confusion.

A High Court decision (Warren Farm (Wokingham) Ltd vs Wokingham Borough Council) has confirmed that for those types of prior approval development where a specific deadline is set – in that case Class Q (agricultural building to dwelling), but applying equally to other Classes under Part 3 – local authorities are required to determine the application within that deadline irrespective of whether they have agreed a time extension with the applicants, something which until the Warren Farm judgement has been considered possible. Should they fail to do this, deemed approval can be considered to have been granted, The result is that the provision for agreeing to an extension of time only has effect where the Class in question is not subject to a specific deadline after which approval is deemed to have been given.

This judgement is already paying off for one of our clients in north Cornwall where, despite their scheme adhering to the Class Q requirements, the planning authority (Cornwall Council) has taken an adverse position and refused their application but only having first agreed to extend the determination period. Having drawn the Council’s attention to the Warren Farm judgement, we await confirmation that approval has, in fact, been given.

So, what are the lessons learned? Local authorities will surely pay much greater attention to prior approval applications and can be expected to be more prompt about refusing applications for schemes where they have doubts. Any attempt to refuse the application beyond the deadline will be unlawful. For developers, the obvious conclusion is to pay close attention to the deadline date. Equally, developers should not accept any refusal after the deadline has passed.

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