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Extending prior-approval time limits by agreement

The High Court has ruled that prior-approval time limits can be extended by agreement. Charles Streeten explains why.

The High Court has handed down judgment in Gluck v Secretary of State for Housing Communities and Local Government [2020] EWHC 161 Admin.

In a thorough judgment, which contains a careful and detailed analysis of the relevant statutory provisions, Holgate J accepts the Secretary of State’s submission that Article 7 of the Town and Country Planning (General Permitted Development) (England) Order 2015 permits applicants and local planning authorities to agree extensions of time for the determination of such applications in writing. In doing so, he expressly disapproves of the decision of Mr Mark Ockelton (sitting as a Deputy Judge of the High Court) in R (Warren Farm (Wokingham) Limited) v Wokingham Borough Council [2019] EWHC 2007 (Admin), which he has held “should not be followed”.

Since the decision in Warren Farms, local authorities have regarded themselves as unable to agree to extensions of time, even where the applicant is keen to agree such an extension. This judgement corrects that legal misunderstanding and clearly establishes that where a local authority and applicant agree in writing to extend time, that extension will be effective.

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Holgate J’s ratio may be summarised as follows:

Read as whole it is plain that Article 7 is structured so that limb (c), permitting extensions of time, is an alternative to the time limit otherwise imposed for the determination of the application, whether or not that time limit is express and where a default time limit applies.

Article 7 should be read together with Schedule 2 to the GPDO. Limb (a) of Article 7 refers to the period specified in Schedule 2 for determining the application and thus the power to extend time in limb (c) applies both to the time limit specified in Article 7 and Schedule 2.

This interpretation is supported by reading Article 7 in its statutory context, with reference, for example, Article 7ZA.

The structure of the GPDO does not compel an alternative conclusion. There is not, as the Claimant had sought to argue, a dichotomy between two different types of prior approval process, with time limits capable of extension by agreement for one type, but not the other.

A purposive interpretation of the legislation does not support a construction of the GPDO which would prevent time limits being extended by agreement.

The practical effect of treating time periods falling within limb (a) of Article 7 as incapable of extension would probably lead to more applications to LPAs being refused and more appeals to the Secretary of State.

If the legislature’s intention had been to treat time limits specified in Schedule 2 as operating independently and to be incapable of agreement, there would have been no need to include limb (a) in Article 7.

Dealing specifically with Warren Farms, Holgate J explained that his interpretation:

a. Did not produce internal inconsistency with the GPDO.

b. Is preferable in the interests of good administration.

c. Is no less effective in promoting certainty.

d. Is not affected by the fact that Article 7 is not expressed to be a condition; the conditions in Schedule 2 and the provisions of Article 7 are inextricably linked and must be read together.

For these reasons, he said, the supposed difficulties regarding the interpretation of Article 7 referred to in Warren Farm simply do not arise.

On a separate point, Holgate J also confirmed that to constitute an agreement in writing, it is sufficient that a verbal agreement was made by both parties, which is then separately evidenced in writing, for example by way of an email from the applicant sent to the LPA to confirm what had been discussed and agreed verbally. He rejected the submission that it was necessary for both parties to sign a single document, or for there to be correspondence confirming the agreement sent by both parties. Whilst it may be good practice for emails or correspondence to be sent by both the applicant and the authority to each other, the statutory language does not insist on such an exchange taking place.

This decision will be important for both local authorities and applicants. It re-establishes that where both parties wish to agree an extension, for example to enable the production of further evidence or to facilitate detailed consideration of technical issues, the statute permits them to do so.

Charles Streeten is a barrister at Francis Taylor Building. He appeared for the successful Defendant, the Secretary of State for Housing Communities and Local Government, instructed by Shahnaz Zaidi of the Government Legal Department.

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