Councils have no power to extend deadlines to determine agricultural to residential prior approval applications (High Court)

The Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596) (GPDO 2015) is, in effect, a national grant of planning permission. It operates by giving deemed planning permission for certain developments without the developer having to make a formal application for planning permission. Schedule 2 to the GPDO 2015 grants planning permission for classes of development described as “permitted development”. Part 3 of Schedule 2 to the GPDO 2015 grants permission for changes of use. It is divided into 22 classes. Class Q permits a change of use of an agricultural building and any land within its curtilage to a dwellinghouse.

A developer (D) sought prior approval from the local council (C) to convert an agricultural building to residential use under Class Q of the GPDO 2015. The GPDO 2015 requires that decisions on all prior approval applications must be made within 56 days (paragraph W, subparagraph (11), Part 3 of Schedule 2, GPDO 2015). However, C asked for more time to consider the proposal. D agreed. C then refused the application. In April, the High Court approved D’s application to challenge C’s decision on the basis that a refusal of prior approval must be issued within 56 days.

The court has held that the council’s extension of time was unlawful. Therefore, the decision to refuse consent was made after the 56-day deadline and the application should have deemed consent. The court accepted that D and C could agree deadlines under article 7(c) of the GPDO 2015, but this only applied if the prior approval in question did not involve a stated deadline for determination. The court, at paragraph 34, said that:

“Where a period is specified, the deemed grant of planning permission takes place at the end of that period, so the authority’s decision must be before that. If no period be specified, the deemed grant takes place only when a decision is made, and there is therefore scope for agreeing a time within which the authority has to make a decision.”

Although the judgment relates to Class Q of the GPDO 2015, it is generally accepted that it also applies to other change of use applications under permitted development rights.

Case: R on the Application of Warren Farm (Wokingham) Ltd v Wokingham Borough Council [2019] EWHC 2007 (Admin) (31 July 2019) (Mr CMG Ockelton, Vice President of the Upper Tribunal).

Rights of first refusal: new leases granted by landlord before collective enfranchisement claim were exempt disposals within sections 4(2)(e) or 4(2)(h) of LTA 1987

The High Court (Zacaroli J) has held that a husband and wife (H and W), who were joint freeholders of a block of flats, had not triggered the tenants’ right of first refusal under the Landlord and Tenant Act 1987 (LTA 1987) when they granted 14 leases (the Leases) of various parts of the block, to one or other of themselves, for no premium and at a peppercorn rent. The Leases constituted exempt disposals under sections 4(2)(e) or 4(2)(h) of the LTA 1987.

H and W had granted the Leases in advance of a collective enfranchisement claim brought by the flat tenants, with the intention of retaining the development value in the various parts of the block. When H and W failed to comply with notices under section 12B of the LTA 1987 and subsequent default notices, the tenants applied for an order under section 19 of the LTA 1987, requiring the Leases to be transferred to their nominee purchaser (Y).

The High Court dismissed Y’s claim, holding that the Leases each constituted a gift to a member of the landlord’s family for the purposes of section 4(2)(e) of the LTA 1987. Alternatively, they were disposals consisting of a transfer by two or more members of the same family, to fewer of their number, under section 4(2)(h) of the LTA 1987. The grant of each of the Leases was therefore an exempt disposal and the requirement to give notice of first refusal to the flat tenants under section 5 of the LTA 1987 had not been triggered.

Although it was not strictly necessary to do so considering this conclusion, the court went on to consider whether each of the Leases was a disposal which affected any premises to which the LTA 1987 applied.

This is the first decision on sections 4(2)(e) and 4(2)(h) of the LTA 1987 and landlords will welcome the clarification of the scope of these exemptions.

It is fairly common for a landlord to employ these tactics, to try to retain the development potential in a block that may be subject to collective enfranchisement. However, even where the LTA 1987 is not triggered, they may not always prove successful, as the tenants may be entitled to acquire some or all of the leases as part of their claim (see, for example, LM Homes Ltd and others v Queen Court Freehold Company Ltd [2018] UKUT 367 (LC)). It is unfortunate that the tenants in this case were not aware of the Leases at the time they made their claim, as they had not yet been registered. (York House (Chelsea) Ltd v Thompson and another [2019] EWHC 2203 (15 August 2019)).

“Raising the Bar” interim report by Competence Steering Group

The Competence Steering Group (CSG) of the Industry Response Group (IRG) formed by the government in the wake of the Grenfell Tower fire has published an interim report, Raising the Bar.

The interim report addresses competence concerns raised by the Hackitt Review of Building Regulation and Fire Safety in May 2018, focussing on higher-risk residential buildings (HRRBs).

The interim report identifies twelve areas of competence and makes 67 recommendations. These cover a wide range of issues, including support for residents, procurement, accreditation and the creation of an overarching HRRB competence framework. It also sets out a series of “Principles of Competence” for adoption by all those working on HRRBs.

Perhaps most notably, the interim report calls for the creation of an industry-led “Building Safety Competence Committee” to raise levels of competence. That recommendation dovetails with the government’s proposal for a new building safety regulator to ensure compliance and building safety in England (see Legal update, Government consults on Hackitt response).

A consultation calling for comments on the interim report ends on 18 October 2019.

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