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Planning Court judge issues ruling on prior approval and upward extensions

The High Court has ruled against claimants in three cases involving how widely a local authority can consider planning matters when dealing with a request for prior approval under the Town and Country Planning (General Permitted Development) (England) Order 2015.

These cases involved claims against the London Borough of Haringey and Broxbourne Borough Council.

In Cab Housing Ltd & Ors v Secretary of State for Levelling Up, Housing and Communities & Ors [2022] EWHC 208 (Admin) Mr Justice Holgate noted that some permitted development rights are dependent upon an application for prior approval, without which rights granted by GDPO 2015 cannot be exercised.

A council was not entitled to have regard to all material considerations, when considering prior approval but only those set out in the order.

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Applicants were free to appeal to the Secretary of State when a local authority refuses to grant prior approval, or fails to determine an application within the relevant time limit.

The three applications were made under s.288 of TCPA 1990 to challenge the decisions of inspectors to dismiss appeals against the refusal of prior approval under Class AA of Part 1 of Schedule 2 to the GPDO.

This refers to the enlargement of a single house by up to two storeys, or one storey above a single-storey building.

Holgate J said: “These challenges raise important issues regarding the true interpretation of Class AA of Part 1.

“First, are the claimants correct in saying that a planning authority's control of impact on amenity [is] limited to effects on properties contiguous with, or abutting, the subject property and are those effects limited to overlooking, privacy and loss of light?

“Alternatively, does that control embrace impact upon all aspects of the amenity of neighbouring premises, as the Secretary of State contends?

“Second, is the authority’s control of the external appearance of the subject dwelling limited to the ‘design and architectural features’ of its principal elevation and any side elevation fronting a highway, and is it further limited to the effects of those matters upon the subject dwelling itself?”

The claimants said councils were not allowed to consider the impact of external appearance changes on any property outside the subject dwelling.

But the Secretary of State contended that the control covers all aspects of the external appearance of the proposed development, and not simply the two elevations specifically referred to, and the impact upon other premises. The inspectors took this broader approach.

Holgate J said: “I cannot accept the narrower construction advanced…that the amenity control only concerns those properties which abut, or are contiguous with, the subject property.

“The normal meaning of the word ‘adjoining’ includes ‘adjacent' or ‘neighbouring’.”

He said the word 'including' in either sub-paragraph (i) or (ii) of paragraph AA.2(3)(a) could not be read as limiting the matters which can be taken into account under ‘amenity’ or ‘external appearance' to those expressly specified.

“The word ‘including’, read in the context of this legislation, does not have an exhaustive effect. Indeed, if the intention had been to limit prior approval controls to the matters specified, the obvious course would have been to say so directly.”

The judge also rejected the claimants’ submissions that the ‘external appearance’ control is confined to an assessment of the impact of that appearance on the subject property itself, as opposed to its surroundings.

“There is nothing in the language of the GPDO 2015 to justify this construction,” he said.

Holgate J concluded: “The decision of each inspector was entirely lawful. That is as far as the court's function permits this judgment to go.

“Individual decision-makers will make their own planning judgments applying the prior approval controls, correctly interpreted, to the materials before them.”

He summarised his findings as:

  1. Where an application is made for prior approval under Class AA of Part 1 of Schedule 2 to the GPDO 2015, the scale of the development proposed can be controlled within the ambit of paragraph AA.2(3)(a);
  2. In paragraph AA.2(3)(a)(i) of Part 1, ‘impact on amenity’ is not limited to overlooking, privacy or loss of light. It means what it says;
  3. The phrase ‘adjoining premises’ in that paragraph includes neighbouring premises and is not limited to premises contiguous with the subject property;
  4. In paragraph AA.2(3)(a)(ii) of Part 1, the ‘external appearance’ of the dwelling house is not limited to its principal elevation and any side elevation fronting a highway, or to the design and architectural features of those elevations;
  5. Instead, the prior approval controls for Class AA of Part 1 include the 'external appearance’ of the dwelling house;
  6. The control of the external appearance of the dwelling house is not limited to impact on the subject property itself, but also includes impact on neighbouring premises and the locality.

Mark Smulian

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