Bear Traps in Permitted Development and Prior Approval

Not all development is equal. While most will require a planning application to be submitted to the relevant local authority, some enjoys deemed planning permission under the General Permitted Development Order 2015 ("GPDO").

The GPDO sets out a number of classes and types of (generally minor) development which do not require planning permission. However, while the GPDO can be incredibly useful in avoiding unnecessary costs and delays associated with a planning application, it is a complex piece of legislation that needs to be approached with caution. Beyond the initial list of operations that constitute permitted development, it also contains a tangled web of exceptions and conditions. The precise dimensions and nature of the development can make the difference between a need to apply for planning permission (e.g. an antenna of 19m may be permitted development, but one of 25m probably won't). Furthermore, where the development takes place can also have an impact (e.g. a development in an SSSI or Conservation Area may be excluded from relying on permitted development rights). Then, even if these hurdles are jumped, one more trap may still lie ahead: the need for prior approval from the Council.

For example, Part 16 of Schedule 2 to the GPDO 2015 gives deemed planning permission (subject to exclusions and conditions) for certain development to be carried out by, or on behalf of, an electronic communications code operator for the purpose of the operator's electronic communications network. An antenna may appear to satisfy all elements of Part 16A(a) so that the development would (on the face of it) appear to be permitted development. The next step would be to check that none of the restrictions either in Part 16A.1(i) (e.g. height) or A.1(4) (restrictions within certain designations such as SSSIs) apply.

Beyond the GDPO it is also necessary to check whether the site falls within the setting or curtilage of a Listed Building, as this may also restrict the use of permitted development rights. It is also necessary to check that no article 4 directions had been put in place by the Council which can also remove permitted.

However, even once all these bridges have been crossed, it is still not assured that the development can simply go ahead, as further conditions may apply under the GDPO. In the case of an antenna, even when the development is otherwise permitted under Part 16(A), Part 16.A.2(3) requires the prior approval of the Council.

The process is analogous, although less onerous, than applying for planning permission. It is, however, vital that the planning position is clarified before construction starts. For whilst retrospective planning permission can be sought for development undertaken without planning permission, the prior approval system can only be used prior to any work starting on the development. Following the High Court decision Winters v Secretary of State for Communities And Local Government & Anor [2017] EWHC 357 (Admin), residential 'prior approval' permitted development rights do not have retrospective effect. In other words, prior approval cannot normally be sought after the event.

Another recent High Court case has also clarified a related question relating to prior approval. It was previously considered that Councils had no power to extend the 56 day deadline to determine prior approval applications. However, this has been overturned by Gluck v Secretary of State for Housing, Communities and Local Government and another [2020] EWHC 161 (Admin). The case concerned a situation where the Council gave its decision (to refuse two proposals) after the 56 day time limit. The Applicant sought to rely on the decision in R on the Application of Warren Farm (Wokingham) Ltd v Wokingham Borough Council [2019] EWHC 2007 (Admin), to state that the 56 day time period could not be extended. As the deadline had expired in this instance without a decision being made, the Applicant argued that they could proceed with the development (insofar as it complies with the GPDO) without the need for any approval. However, the High Court disagreed and found that any of the prior approval time periods specified in the GPDO 2015 could be extended by an agreement between the parties in writing. The 56 day deadline is not, therefore, as set in stone as previously thought. Failure by the Council to determine a prior approval within this time does not therefore release applicants from the need to have any (relevant) permitted development scrutinised.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.