Permitted Development Rights - the importance of obtaining prior approval

A temporary permitted development right (Class O) for the change of use from office (Class B1(a)) to residential (Class C3) was introduced in May 2013 on a temporary basis until  May 2016. The Government’s aim was for underused commercial properties to given a new lease of life and boost the housing supply. Due to the number of successful prior approval applications, the Government made this right permanent in April 2016. Since then, a number of applications have been made and granted. In January 2019, the Housing Minister at the time, Kit Malthouse, said that nationally, over 42,000 homes were delivered under the right in the three years to March 2018. This article considers a number of recent applications which highlight the importance of obtaining prior approval before carrying out any works.

When is prior approval required?

Whilst planning permission is not required for a change of use under Class O, prior approval does need to be obtained from the local authority. The procedure for this is set out in paragraph W of Part 3, Schedule 2of the Town and Country (General Permitted Development) (England) Order 2015 (“the Order”). This requires that the development must not commence before either:

• the receipt by the applicant from the local planning authority of a written notice that prior approval is not required,
• the receipt by the applicant from the local planning authority of a written notice giving their prior approval
• the expiry of 56 days following the date on which the application for prior approval was received by the local planning authority without the authority notifying the applicant whether prior approval is given or refused.

What happens if works are undertaken before prior approval is sought?

In a recent appeal decision dated 9 March 2020 relating to the refusal of prior approval, an Inspector ruled that as development had already commenced in relation to the proposed change of use under Class O, prior approval could not be granted.

This highlights to developers that it will be necessary to view the requirement to obtain prior approval as being similar to pre-commencement conditions under a planning permission, in so far as if the condition is not discharged then the development may not be lawful.

This Inspector’s decision is consistent with existing caselaw, notably the case of Winters v SSCLG [2017] EWHC 357 (Admin) relating to a householder extension and Quaystone Properties Limited v SSCLG (CO/591/2016) relating to Class O. In the latter, the Court refused permission under s.288 of the Town and Country Planning Act 1990 (as amended) to challenge a similar decision where conversion of the offices to flats had commenced before the application for prior approval was made, and completed by the time of the Inspector’s site visit. 

Can a local planning authority extend the 56 day period for responding to a prior approval application?

On 31 January 2020, the High Court handed down judgment in the case of Gluck v Secretary of State for Housing Communities and Local Government [2020] EWHC 161 Admin. 

The case concerned the interpretation of Article 7 of the GPDO which provides that where an application for prior approval has been made to a local planning authority, the decision in relation to the application must be made by the authority:

• within the period specified in the relevant provision of Schedule 2 (being 56 days);

• where no period is specified, within a period of 8 weeks beginning with the day immediately following that on which the application is received by the                     authority; or

• within such longer period as may be agreed by the applicant and the authority in writing.

Holgate J held that Article 7 has to be read together with Schedule 2 and result is that the GPDO provides for the 56 day time period to be extended by the agreement of the applicant and the authority. This is an important decision to take into account and should be factored into the project management stage of a scheme in terms of the timescale for securing prior approval not being definitive.

What are the practical implications of the recent decisions?

Permitted development rights, such as those granted by Class O of the GPDO, are generally subject to conditions and prior approval requirements. It is important to carefully check all of the provisions of the relevant section of the GPDO and the exceptions before commencing development. The risk otherwise is that the development will not be considered lawful under the GPDO and planning permission may need to be sought. It is also important to check that there are no limitations on permitted development rights being exercised, for example Article 4 Directions which may be in place. These are usually recorded in local land searches and can also form a condition of a planning permission.