Prior approval… of *what*?
For just a couple of minutes, shall we cast aside today’s talk of mutant algorithms (we’ll come back to it - that’s for sure!) and settle in for one last round of #planoraks basics. The final round of 2020. Are you sitting comfortably? With tea? A mince pie, even? Ok then. Let’s begin…
An interesting feature of this year’s onward march of permitted development rights is the burgeoning importance of the prior approval procedure. The importance of what it covers. How it works. The number and complexity of its conditions. The scale and the scope of the developments it can allow.
Prior approval may’ve started life as a relatively modest procedure to consent things like the siting of agricultural barns, but we’re a world away from that now. It’s entered the limelight - centre stage - as a mechanism with the power to permit substantial new pieces of development in prominent locations.
But here’s a question for you: what actually is it? Or – to put it another way – how is an application for prior approval any different from an application for planning permission. And do the differences actually matter?
Let’s start with a couple of legal headlines:
The Town and Country Planning Act 1990 allows planning permission to be granted in a number of different ways. Including by development order and local planning authorities on application.
Either route can be subject to conditions.
Some grants of permission by development order are conditional on an application for “prior approval” (defined here).
So just to start at the very beginning - the statutory scheme treats prior approval applications separately from applications for planning permission. This isn’t always obvious. Because both are “applications” and both relate to planning matters, but only one involves a planning application.
That two different routes to planning permission are in play here is important, because they’re subject to different decision-making duties. What does that mean? Well:
Applications for planning permission - not prior approval – must be taken in accordance with the statutory development plan and material considerations: see section 70(2) of the TCPA, and section 38(6) of the Planning and Compulsory Purchase Act 2004. You want more on s.38(6) - here you are. You’re wondering what “material considerations” means - I’ve got you covered.
Anyway - it’s another world for prior approval applications. For those, the permission’s already been granted. It’s been granted by the development order itself. A prior approval application is effectively an application to discharge conditions pertaining to that permitted development right. So we don’t go back to s.38(6). Or s.70. The scope of issues material to our prior approval application is fixed and fixed exclusively by the terms of the order. There is no free-standing requirement to think about the development plan. Or other material considerations more generally. Or even the NPPF – unless of course the order tells us to think about the NPPF, and I’ll come back to that in a mo.
Now all of that might all seem pretty obvious in the case of, let’s say, an agricultural building prior approval. For which under Part 6 in the GPDO prior approval is required in relation to “siting, design and external appearance of the building”. That is a closed list. See Lindblom LJ in Keenan v Woking where he said that:
“The sole and limited function of this provision was to enable the local planning authority to determine whether its own “prior approval” would be required for those specified details of that “permitted development”.”
So far so straightforward?
Well, probably. Most of the time. Albeit I’ve been defending a judicial challenge in the last few weeks where a claimant alleged a council had failed to consider the impact of my client’s new agricultural building on the setting of a nearby listed manor house. Were any heritage impacts material to that prior approval? How do heritage impacts fit into that rubric of “siting, design and external appearance”? If at all. Well, how about the listed building act? But section 66 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 applies to planning applications: Not to prior approval applications. How about the heritage chapter of the NPPF? Tricky because we know from the Mordue case that it corresponds with the duty in section 66, and we also know that the development management paragraphs like 195 and 196 of the NPPF require a balancing of a scheme’s public benefits against any heritage harms. Which we know is not supposed to be the function of a prior approval application.
So does that mean that when it comes to the siting of an agricultural building – say – in the setting of a listed building, there is literally no obligation to have regard to any impact on the historic interest of that building?
And for most other forms of prior approval, things get (much!) more complicated. That’s for 2 big reasons:
The “as if” clause; and
The scale and scope of the PD right’s conditionality.
What’s the “as if” clause? Well, for lots of PD rights including the new Part 20, we’re told that the LPA must, when determining a prior approval application:
“have regard to the National Planning Policy Framework issued by the Ministry of Housing, Communities and Local Government in February 2019, so far as relevant to the subject matter of the prior approval, as if the application were a planning application”
As if. What does that actually mean. When these are very much not planning applications. “So far as relevant” – again, what does that mean? Does it mean we think about some bits of the NPPF but not other bits? And if so, how do we work which bits we’re lawfully entitled to look at? When we know that the whole lot of the NPPF is supposed to be a kind of composite expression of the Government’s view of what sustainable development is?
What about the nature and scope of that conditionality? Take an example – Class AA in the new Part 20, one of the much-discussed suite of new provisions to allow building up by 2 additional stories. What does the prior approval need to cover- 10 different things, include some issues that may get just a little complicated and contentious, like:
Transport and highways impacts;
The external appearance of the building, including design and architectural features of principal elevations and side elevations fronting highways;
The provision of adequate natural light in all habitable rooms;
Impact on the amenity of the existing building and neighbouring premises including overlooking, privacy and the loss of light; and
Impact of more residential use on local trades or business.
I mean, if you’re going to have to cover all that stuff anyway, and the NPPF applies too “as if” it were a planning application, which it isn’t, why not just whack in a full planning application and be done with it?
Plus: each of those conditions are more complicated than they seem at first blush. And that’s partly because of the nature of prior approval applications. The Government has, in effect, taken development management criteria out of planning policy. And putting them into law. Into a statutory instrument. But that legalisation creates some challenges.
Because whether or not there is – say – “adequate natural light” in habitable rooms is normally a matter of evaluative judgment under the auspices of amenity policies in a local plan. Well, all of a sudden it’s a question of law. Which means it has a correct legal answer. But heavens knows how we actually to go about working out what that answer is. Because – to run with the natural light example – the standard text tends to be Paul Littlefair’s BRE guidance – site layout planning for daylight and sunlight. But that guidance tells us in terms that it isn’t mandatory, should be interpreted flexibly and should not be seen as an instrument of planning policy. Still less some kind of crib-sheet for determining legal compliance.
Take another innocuous-looking example:
“external appearance of the building”
Well, you might think, that’s straightforward enough. Look at the building. Assess the elevation plans. Reach a judgment. But a judgment on what? Just the building itself? The whole thing? Just the two new stories? And any architect will tell you that good design can’t be judged in a vacuum. Buildings are appreciated in their context. In their townscape.
So what if that external appearance is said to harm the character of the local townscape. Said to clash with the local vernacular. Or the setting of a listing building. Or the setting of a Conservation area. What then? Are we into a broader townscape assessment? Conservation area appraisals? Listed building studies. Visual impact assessments.
And remember that “as if” clause – if we really are supposed to be thinking about all of these difficult and more wide-ranging issues, then the policies in the NPPF apply to these matters just “as if” they were part of a planning application.
Let me give you one last fiendish example. Take the consultation for the new Class E to residential permited development right - the most radical planning reform of the year. One of the ideas is that prior approval will be required in conservation areas of the impact of the loss of the ground floor use to residential.
But impact on what? The historic interest of the conservation area – i.e. the reason it was designated in the first place. The vitality of the conservation area? The impact on other retailers? The impact on local amenity? Character and appearance? All of the above? And if so, all judged “as if” it were a planning application under the NPPF?
So there you have it, #planoraks. And if you’re looking for headline take-aways from all that, here are 5:
Prior approval applications are different from planning applications in lots of very important ways.
In particular, the general legal duties which apply to determining planning applications do not yet anyway apply to prior approval applications.
With the Government’s greater focus on PD comes greater weight, scope and complexity foisted onto the prior approval process.
At the moment, our statutory framework and national policy hasn’t really caught up. Which means uncertainty over how these new prior approvals are going to work in practice and what they can cover.
Which means in the end – unfortunately – it shouldn’t surprise us too much to see the reports in Planning Magazine that take up and success rates for the new PD rights have not – so far – been very high.
That’s it for 2020 folks. So far as this blog is concerned, at any rate. I hope you’ve enjoyed it. Since #planoraks kicked off in April, over 25,000 of you have visited the site over 35,000 times. And 1,500 of you get it in your email inboxes every week. There’s been a fair amount to talk through this year. But I have a feeling from today’s papers that we aren’t going to run out of topics in 2021. Onwards and upwards!
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See you all in 2021! And, in the meantime, stay well #planoraks.
