The 56-day rule - a practical example

When I wrote my piece on the 56-day rule the other day, I queried the position where notification of the council’s determination of the prior approval application went out very close to the deadline, and so was not received by the applicant within the 56-day period. I am grateful to a correspondent for drawing my attention in this connection to an appeal decision in Tower Hamlets, issued on 24 June 2013 (APP/E5900/C/12/2182746).

This was an application for prior approval in respect of a telephone kiosk under Part 24. The inspector stated at the beginning of his decision letter that the authority had 56 days in which to give notice whether prior approval was required, and for the applicant to receive such notice. It appears to have been assumed without question in this case that a written notification sent within the 56 days but not received by the applicant within that time would not comply with the 56-day rule, so that the right to carry out the development then became automatic, notwithstanding the LPA’s decision and the purported notice of their refusal of the prior approval application.

Both parties agreed that the time within which the applicant should have received such notice expired on 26 December 2011. The authority sent out an undated letter on 23 December refusing prior approval. That letter was received by the appellant in the post on 29 December 2011, outside the 56-day period. However, a copy of this letter was also sent out by two emails at 4.32 p.m. on 23 December, one of which went to the email address given on the applicant’s headed notepaper, and was received by them on that day.

There can be no doubt that transmission of the letter by email to the applicant’s stated email address was an effective communication of the written notice of the LPA’s determination of the prior approval application, notwithstanding that the applicant had not confirmed on the application that they would agree to receive communications by email. Section 329(1)(cc) of the 1990 Act permits the service of a notice using electronic communications where an address for service has been given (as it had been by virtue of its being shown on the applicant’s headed notepaper).

The question, however, still arose as to whether the receipt of the email at or shortly after 4.32 p.m. on 23 December was actually in time. At first sight it seems obvious that it must have been. But there’s a catch!

The applicant relied on Section 336(4A) of the 1990 Act, which provides that where an electronic communication is used for the purpose of serving or giving a notice or other document on or to any person for the purposes of this Act, and the communication is received by that person outside that person’s business hours, it is to be taken to have been received on the next working day, and in this subsection, “working day” means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday.

The inspector quite rightly drew attention to the words “that person’s business hours”. This does not mean ‘normal’ business hours, but the business hours which that person chooses to keep. Whilst it may be usual for offices to remain open until 5.00 or 5.30 p.m., some businesses do close down earlier on Friday afternoons and this was, of course, the last working day before the Christmas holiday, so it is not surprising that the applicant’s office closed down for Christmas before 4.30 on that day. In any event, if a person keeps business hours that are different from the norm, it is their own business hours which apply for this purpose.

In this case, therefore, the email of 23 December had been received outside the applicant’s working hours, and so (in accordance with section 336(4A)) it had to be taken to have been received on the next working day, which was Wednesday 28 December in this case, because Christmas Day fell on a Sunday and so there was an extra Bank Holiday on Tuesday 27 December. So the notification of the council’s refusal of prior approval was received outside the 56-day period after all, and on that basis the Inspector held the applicant had been entitled (as they did) to go ahead with the erection of the telephone kiosk.

I am not aware of this appeal decision having been challenged, but I note that whilst paragraph A.2(6)(a) of Part 24 refers to “the receipt by the applicant from the local planning authority of a written notice of their prior determination that such prior approval is not required”, sub-paragraph (b) uses the words “the giving of that approval to the applicant, in writing”, and sub-paragraph (c) uses the words “notifying the applicant, in writing, that such approval is given or refused”. Sub-paragraph (d) also uses the words “notifying the applicant, in writing, of their determination as to whether such approval is required”. So the only sub-paragraph that refers to the receipt of written notice by the applicant is (a), relating to a notification (at any time, but in practice within the 56-day period, because one of the other sub-paragraphs would otherwise apply) that prior approval is not required.

I am not totally confident that the inspector’s easy assumption that notification of the refusal of prior approval of the Part 24 application had to be received by the applicant within the 56-day period is necessarily correct. It seems that, so far as notice under sub-paragraphs (b), (c) or (d) is concerned, simply dispatching the notice to the applicant within the 56-day period might in fact meet the time limit, even if that written notification is not received within the 56-day period. If that is correct, then section 336(4A) will not have any application, because it is only relevant in those cases where it is the date of receipt of the notice that counts.

In paragraph N of Part 3, sub-paragraph (a) refers to “the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required” and sub-paragraph (b) refers to “the receipt by the applicant from the local planning authority of a written notice giving their prior approval”. So far so good; but sub-paragraph (c) refers to “the expiry of 56 days following the date on which the application was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”.

Which brings us back to the point where we started, with the query I first raised in my post on 9 February. I argued in that piece that sub-paragraph (c) of paragraph N should be interpreted, in the light of sub-paragraphs (a) and (b), as referring to the receipt of that notification by the applicant. But I am still not confident that the courts would agree with this interpretation if the point were ever to be argued before them. Telecoms companies seem to have taken an aggressive stance on this in relation to Part 24 and, in the absence of an adjudication by the High Court, they seem to have persuaded LPAs, and at least one inspector on appeal, that notification of the council’s determination of the prior approval application must be received within the 56-day period. Maybe we should proceed on this working assumption and hope that no LPA ever feels brave enough to litigate the point!

© MARTIN H GOODALL

Short-term use of residential property in London

I have blogged on this topic several times in the past year, but I was wondering why the journos on the Evening Standard were getting excited on this subject in an article in today’s edition of the paper. The Deregulation Bill, which will enable the Secretary of State to relax the rules on short-term lettings in Greater London is still in the House of Lords, and the third day of the Report Stage is not due until Wednesday of this week, so Royal Assent is unlikely to be achieved until after both houses come back from their half term break after 23 February. By my calculation, that isn’t going to leave time for subordinate legislation to be laid before parliament so as to come into effect before the General Election (although I am open to correction on this, if any of you know better).

So what exactly prompted today’s article in the ES? I think it must have been De-CLoG’s publication today of a document entitled “ Promoting the sharing economy in London - Policy on short-term use of residential property in London”, which is yet another expression of the government’s wishful thinking, without actually telling us when we can expect the promised change to come about (if indeed it ever does, given the uncertainty over the likely result of the General Election).

The position today is, and will remain for the time being, that short-term lets (of less than 90 days) in Greater London are a material change of use (to a sui generis use) which requires planning permission. The ES seems to think that the change in the law is immediate, but it is not even imminent. That could conceivably change, but I am still not betting on its happening this side of the General Election; and what will happen after that is beyond the wit of man to foretell.

© MARTIN H GOODALL

Prior approval applications – the 56-day rule

I have been busy in the past few weeks working on my first book, of which more anon, but as a result there has been no time to write this blog. One of the topics which I have been considering is the widened scope for changes of use under Part 3 of the Second Schedule to the GPDO – especially the conversion of office buildings (under Class J) and of agricultural buildings (under Class MB). This has been the subject of several posts in this blog in the past couple of years, and so I won’t repeat that material here.

As readers will be aware, these changes of use cannot be made until an application has been made to the local planning authority for a determination as to whether the prior approval of the authority will be required in respect of certain aspects of the development (as specified in the relevant Class in Part 3). The LPA has 56 days in which to determine the application, and this has been the source of some difficulty, due to uncertainty as to precisely when the 56-day period begins and precisely what the LPA has to do (and when) in order to prevent the development going ahead without their prior approval after the end of the 56-day period.

So far as the start of the 56-day period is concerned, the wording of paragraph N(9) in Part 3 is perfectly clear. The development cannot be begun before “the expiry of 56 days following the date on which the application was received by the local planning authority”. Thus Day 1 of the 56-day period is the day immediately following the date on which the application is received by the LPA (no matter what day of the week that was). The incidence of weekends and public holidays has no effect on the 56-day period.

Some LPAs seem to be under the impression that time does not begin to run until they have ‘validated’ or registered the application, but this is not so. Provided the application complies with the requirements of paragraph N and is accompanied by the correct fee, the 56-day period will begin to run on the day after it is delivered to the LPA. If payment of the fee follows after the application itself, then the application may be considered to be complete upon subsequent receipt of the fee, and the 56-day period will then commence on the day after that date. (See Infocus Public Networks Ltd v. SSCLG [2010] EWHC 3309 (Admin).)

Two points may arise with regard to the LPA’s compliance with the 56-day rule. One relates to the validity of their determination of the prior approval application (or whether it has in fact been determined); the other relates to the communication of that determination to the applicant.

The addition of paragraph N(2A) to Part 3 in 2014 has largely removed the ambiguity that was inherent in the original drafting of paragraph N where a prior approval application is rejected by an LPA because, in their opinion, the proposed development does not comply with one or more of the conditions, limitations or restrictions in the relevant class of Part 3, or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with them. It is reasonably clear from the wording of paragraph N(2A) that a rejection of a prior approval application in accordance with that paragraph does amount to a determination of the prior approval application, even if the LPA is objectively wrong as to the non-compliance of the development with the qualifying criteria under the relevant class of Part 3. The correctness or otherwise of the LPA’s opinion can only be tested by way of an appeal against this decision under section 78 of the 1990 Act.

However, the adequacy of the information provided relates only to the issue as to whether it is reasonably sufficient to enable the authority to establish that the proposed development complies with the relevant conditions, limitations or restrictions, so as to qualify as permitted development under the class in question. If the LPA purports to reject the application in relation to the adequacy of the information for other purposes, going outside the question of compliance with the qualifying criteria, this may perhaps call in question the validity of the decision. If the LPA’s opinion on this point strays outside these stated parameters, it might possibly be argued that the authority has not actually determined the application, which could raise the possibility that the 56-day period might continue running. In such cases, however, a notice or other written communication informing the applicant of the LPA’s rejection of the prior approval application, whatever the stated reasons, would probably be regarded as a valid determination of the application, leaving an appeal under section 78 as the only course that would then be open to the applicant (unless they then choose to make a planning application instead). Thus it is unlikely that a wrongful or mistaken rejection of a prior approval application would result in the 56-day period continuing to run in these circumstances.

The other point to be borne in mind is that the critical event for the purposes of the 56-day rule is the authority’s “notifying the applicant as to whether prior approval is given or refused”. This does not necessarily seem to require a formal decision notice; a bald statement either that prior approval is given or that it is refused might suffice to meet this requirement. Nor does there seem to be any statutory obligation on the LPA to state their reasons for refusing prior approval, although it would no doubt be good practice to do so, and this does indeed appear to be the standard practice of most authorities.

Bearing in mind that subparagraphs (a) and (b) in paragraph N refer to a written notice of the LPA’s determination that their prior approval is not required, or giving their prior approval, it is clear that the notification of their determination must be in that form (although this does not preclude its being sent in electronic form, such as an email). Furthermore, as subparagraphs (a) and (b) refer to the receipt by the applicant of the notice, it would appear that the notification as to whether prior approval is given or refused must be received by the applicant within the 56-day period. It is clear that merely to make a decision within the 56-day period will not suffice (in contrast to the differently worded provision in Part 6 of the Second Schedule to the GPDO, relating to various operational development on agricultural land), but it also seems, by analogy with subparagraphs (a) and (b), that it may not suffice to post a notice of that decision within that time if it does not actually reach the applicant before the expiry of the 56-day period. Failure on the part of the LPA to observe both of these requirements may result in the applicant automatically being entitled to proceed with the development in accordance with paragraph N(9)(c).

The applicant may be able to provide evidence of the actual date of receipt of the notification, but where this remains uncertain the usual presumption as to the service of documents would no doubt apply.

Despite diligent research, I have been unable to find any relevant appeal decision or judgment precisely dealing with the situation where notice of a determination is posted within the 56-day period (under either Part 3 or Part 24), but is not received by the applicant until after the expiry of this period. (There have, of course, been a number of decisions confirming that the authority is out of time if, having determined the application within the 56-day period, it fails to dispatch the notification of its decision within that period.) However, there was a case in North Somerset in 2009 (apparently not the subject of any appeal or other proceedings), where notification of the refusal of prior approval of a mobile phone mast was sent to the applicant by Second Class post on Day 52 or Day 53, but was not received by them until Day 57. The applicant relied on this as allowing them to proceed with the development. The resulting dispute appears to have been settled by negotiation, although the company continued to insist that they had been correct to treat the late receipt of the notification of the council’s decision as being out of time.

I would be interested to hear from any reader who is aware of any appeal decisions on this precise point (i.e. posting of notification of a determination, either under Part 3 or under Part 24, within the 56 days, but its receipt by the applicant after the expiry of the 56-day period). [But please note – instances where this has occurred but has not been the subject of an appeal decision (or judgment) really won’t be of any practical help.]

The general approach to the 56-day rule is illustrated by the decision of the Court of Appeal in Murrell v. SSCLG [2010] EWCA Civ 1367, on which I commented in this blog at the time. (It was a case which actually involved the 28-day period for the determination of a prior notification of agricultural development under Part 6). This established that the GPDO does not make the running of time dependent on a decision by the local planning authority to accept an application as valid. Whether there was a valid application or not is an objective question of law. The application for determination as to whether prior approval is required does not need to be in any particular form and does not need to be accompanied by anything more than what is prescribed by the GPDO (in the case of a Part 6 application, a written description of the proposed development and of the materials to be used and a plan indicating the site, together with the required fee). It is not mandatory to use a standard form or to provide any information beyond that specified in the GPDO.

The appellant’s application in Murrell complied with the requirements of the GPDO and was a valid application, contrary to the LPA’s assertion. The GPDO does not require an application to be accompanied by proposed elevations or a block plan. It does not require a location plan, although in Murrell a location plan was in fact provided with the application. Nor does it require multiple copies of any documents. Since use of a standard application form is not mandatory, the council was mistaken in stating that these were the only forms they could accept and in requesting the appellants to complete and return, in quadruplicate, a new standard form. Accordingly, the council's assertion that the application was invalid was wrong in law.

The Court of Appeal agreed that the council was entitled to ask for further information. It was not, however, entitled to refuse to treat the application as a valid application until that further information was received. The clock carried on ticking from the date of receipt of the application until the expiry of (in that case) the 28-day period.

© MARTIN H GOODALL

Financial incentives to be offered for injunctions

Enforcement action against breaches of planning control has always been the Cinderella of the planning service in most planning authorities, and the squeeze on council budgets has only served to further weaken local councils’ exercise of their enforcement powers. It can be a very expensive exercise, especially if the enforcement action is simply ignored by a recalcitrant developer, so that the council has to resort to applying for an injunction.

Now, however, albeit rather late in the day, De-CloG has announced a new fund to give LPAs some financial help in dealing with proceedings for injunctions in planning cases. Of course, if local authority funding had not been cut in the first place, this extra financial support might not have become necessary, but no doubt it will be welcomed by any hard-pressed authority having to go for an injunction against a persistent breach of planning control, or at least it may be until they read the small print.

The fund provided by De-CloG is £1 million, of which £200K will be available between now and 31 March this year, and the remaining £800K will be available until 31 March 2016. However, this funding is not as generous as it sounds. The maximum grant for any one case is limited to not more than half the council’s estimated costs, but is limited to a maximum payment of £10K.

So the maximum amount of grant that an LPA can apply for is £10,000 (or 50% of their estimated legal costs, whichever is the lesser) towards the cost of securing a Court Injunction in the High Court or County Court. The authority is required to provide a costs estimate setting out details of anticipated legal costs likely to be incurred in preparing and issuing legal proceedings and attending court, but this estimate is not to include non-legal specialist officer time. The LPA must take responsibility for any legal costs incurred in excess of £10K or in excess of any lesser sum that may be granted.

The fund is solely for use by LPAs in England, towards the cost of securing a Court injunction (High or County Court), under Section 187B of the Town and Country Planning Act 1990, against actual or apprehended breaches of planning control to be restrained. Funding is only available where other enforcement options have been, or would be, ineffective, or where there have been persistent breaches of planning control over a long period.

Funding will not be available for court proceedings which have already been started, or where an appellant lodges an appeal under section 174 against an enforcement notice that the LPA has issued. The criteria refer to an appeal made “within 28 days of receiving the notice”, but as the notice will usually come into effect within a fairly short time after the minimum 28-day period, it seems a little odd that an LPA could be deprived of funding for injunction proceedings where an enforcement notice is timed to come into effect (say) 35 days after service, and the developer appeals after 28 days but within the 35-day period.

LPAs will have to jump through hoops to get the funding they are seeking. Before a grant is made, they will have to demonstrate why the action is in the general interest, explain the degree and flagrancy of the breach of planning control, set out the enforcement history for the site (e.g. what other measures have failed over a long period of time), explain any urgency needed to remedy the breach, set out the planning history of the site, provide details of previous planning decisions in relation to the site, set out consideration of the Public Sector Equality Duty (section 149 of the Equality Act 2010) and Human Rights Act 1998, and demonstrate that an injunction is a proportionate remedy in the circumstances of the individual case, in addition to stating the amount of funding requested, including a breakdown of estimated legal spend on legal costs in 2014-15 and 2015-16. And all of this must be written in no more than 1,000 words, writing on one side of the paper only in the Head of Planning’s best joined-up handwriting. Deductions from funding will be made for untidy handwriting, poor grammar and spelling errors. (OK – I made the last bit up, apart from the thousand-word limit, but you get the general drift.)

And that’s not all. To qualify for consideration, the authority is required to confirm that it has adopted the enforcement best practice recommended in paragraph 207 of the National Planning Policy Framework and published its plan to manage enforcement of breaches proactively. The authority’s enforcement plan must have been published at least three months prior to applying for grant and the authority is required to confirm adherence to the recommendations of the National Planning Policy Framework with regard to the way in which the authority monitors the implementation of planning permissions, investigates alleged breaches of planning control; and takes enforcement action whenever it is expedient to do so.

Finally, to support the application for funding, the authority will be required to provide an active web link for their published local enforcement plan together with written confirmation that they are adhering to the objectives of the plan in a positive, pro-active and proportionate way and have been doing so for at least the previous three months.

Contractors engaged by De-CLoG (Ivy Legal) will assess applications for funding against the eligibility criteria in January, April, July and October, and applications for grant must be received no later than the last working day of the relevant application month.

You might think that someone in De-CLoG is trying to make it difficult, if not practically impossible, for local authorities actually to get their hands on this money! I wonder what level of take-up there is going to be when the amount of work involved in applying for funding, and the sum that is likely to be doled out, are taken into account. Getting funding might prove to be more difficult than getting the injunction itself, and many LPAs may conclude that it’s not worth the hassle.

© MARTIN H GOODALL

Further planning changes put off until after the General Election

In the interval between Christmas and the New Year, De-CLoG sneaked out its “Ninth Statement of New Regulation: January to June 2015”, which (if what it says on the tin is to be believed) lists all the subordinate legislation that De-CLoG ministers intend to bring into force between 1 January and 30 June 2015. The word “all” is not actually used in the document, but it is reasonable to assume that if the government had a firm intention to introduce any other measures before the General Election they would have been included in this document.

The statement is therefore unintentionally revealing in having omitted a number of significant planning changes which were loudly trumpeted by ministers last year, and which would certainly have been included in the list of forthcoming measures if the government still intended to bring them forward before the General Election.

Among the previously proposed changes about which the document is deafeningly silent are further amendments to the GPDO to enable more changes of use in addition to those previously introduced within the past two years. These were expected to include the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of some sui generis uses to restaurants (C3) and leisure uses (D2).

There is no mention, either, of the government’s intention to make permanent those permitted development rights which currently expire in May 2016. We had been promised that the existing time limit for completing office to residential conversions would be extended from 30 May 2016 to 30 May 2019. It doesn’t look as this is going to happen this side of the General Election. The same applies to the right to build larger domestic extensions (under Part 1), currently expiring in May 2016.

Another measure that it seems will not be coming forward is the right to make alterations to shops, so as to allow retailers to alter their premises, plus additional PD rights covering (among other things) further extensions to houses and business premises, over and above existing permitted extensions.

Turning to the Use Classes Order, there is no mention of the proposed merger of Use Classes A1 and A2 in a single new ‘town centre’ use class. This was expected to be accompanied by a further amendment of the GPDO to allow change of use to the widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and cafés (A3), drinking establishments (A4), and hot food takeaways (A5). Similarly there is no mention of the intended restriction of the scope of the current A2 use class, so that betting offices and pay-day loan shops (both currently falling within this Use Class) would become sui generis uses.

Another measure of which no mention is made is the suggested increase in floorspace in a building in retail use (including the introduction of mezzanine floors), currently limited to 200 sq m, that can be made without its coming within the definition of development under section 55 (and therefore requiring planning permission). [I thought the original provision in the 2004 Act had been brought into force with effect from 10 May 2006, but I haven’t been able to put my finger on the SI which confirmed this limit, and have begun to wonder whether this provision in the 2004 Act is actually in force. Perhaps someone can enlighten me.]

There is one measure (relating to a proposed reduction in qualifying time for the Right to Buy scheme) which has been pencilled in for April 2015, but is flagged up as being “dependent on the Deregulation Bill”. The same would apply to the previously announced intention to relax section 25(3) of the Greater London (General Powers) Act 1973, so as to allow some types of short-term lettings in Greater London that are currently prohibited by that sub-section of the 1973 Act. But in this case, there is no mention of the proposed measure in the De-CLoG statement. Is this another measure that has bitten the dust?

Perhaps it was the realisation that these various measures could not now be brought forward before the General Election that led to George Osborne refraining from re-announcing them yet again in his Autumn Statement.

In Cloud-cuckoo-land, where Tory members of our coalition government seem to live, it is confidently expected that the government will be able to introduce these various measures after the General Election, and in the meantime they will no doubt feature as commitments in the Tory Party election manifesto. In the real world, where the rest of us live, the survival of the present government after May seems a little less than probable. An incoming government of a different political composition may not wish to continue with these proposals, and so this may be the end of the road for the present government’s planning ‘reform’ agenda.

UPDATE: I am grateful to Sally Davis of G L Hearn and to Ray Tutty of Savills, both of whom kindly emailed me with a note of the provision that I had been unable to find, which specifies the limit for internal enlargements of retail floorspace. This was Article 4 of the Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2006, which inserted Article 2A in the original DMPO stating that the amount specified under section 55(2A) of the Act is 200 square metres. Any change in this floorspace limit would therefore be by means of a further amendment of the DMPO. It would still be possible for this change to be made in the time available, but its omission from the statement of forthcoming subordinate legislation suggests that the government may not see it as a priority.

© MARTIN H GOODALL