Prior approval is concerned with whether approval is required for specific details or on specific issues before development can take place under certain permitted development rights. Forms of prior approval apply under the Town and Country Planning (General Permitted Development) (England) Order 2015 to particular permitted development rights for householders (Part 1), changes of use (Part 3), film-making (Part 4), agriculture (Part 6), non-domestic alterations (Part 7), tolls (Part 9), demolition (Part 11), communications (Part 16), mining (Part 17) and local or private Acts (Part 18). The GPDO 2015 sought to give greater consistency to the time periods for these approvals in England but unfortunately the subject matter and the detailed procedures for prior approval mechanisms all vary. As explained below, the procedure for any prior approval application requires careful consideration of the individual Part and greater standardisation would be welcome.
Until 2014 it could be said that prior approval governed certain details of permitted development where the principle of the operations or use had been determined by the existence of the permitted development right itself. Amendments made by the Growth and Infrastructure Act 2013 allowed the prior approval regime in change of use cases to consider specified matters that go to the principle of the development.1 The permitted development rights to change agricultural buildings to state-funded schools, registered nurseries or dwellings in England are subject to the potential to require prior approval as to the sustainability of the location.2 New rights to change from shop uses to food and drink or assembly and leisure uses are subject to prior approval in respect of the loss of services and effects on key shopping areas.3 This ability to consider the principle of development in specified prior approvals may be extended further under Housing and Planning Bill 2015 amendments to s 60. These propose that prior approval may be required for building operations on specified issues.4 These forms of prior approval are therefore changing from a permission with details to be approved, to a type of planning application lite.
Otherwise, the concept that prior approval is concerned with details rather than principle holds good. That said, the extent of the details depends upon the terms of the particular class and the legislative context of that form of development. For example, the siting of mobile phone masts and antennae can be a subject for prior approval of siting and design, but since electronic communications operators’ powers to site apparatus is so wide, including on the highway, the decision may consider alternatives hundreds of metres away.5
A prior approval is concerned with the details which are reserved for that approval and cannot be used to reopen the principle of development: Murrell v Secretary of State for Communities and Local Government.6 The order’s description of the details which may be subject to prior approval has to be considered with care to determine whether an issue is relevant to the decision. A local planning authority or Minister may not decide the approval on any matter other than the merits of the details which have to be approved.
Prior approval usually comprises two elements:
- an application to, and a decision by, the local planning authority whether prior approval is required;
- the decision of the local planning authority whether to grant prior approval.
Those are formally separate decisions, although the procedures may allow them to be taken at the same time. It is not uncommon, although it is unhelpful, for the local planning authority’s analysis to fail to distinguish between a decision that prior approval is not required, and the grant of prior approval.
Some permitted development rights require prior approval to be granted, rather than allowing an express or deemed decision that prior approval is not required.7
No application form is prescribed, but standard forms are available and it is most convenient to use these. Fees are payable with each application. In England these are currently £80 for changes of use, £172 for changes of use and connected building operations under Part 3, £80 for agricultural, forestry or demolition applications and £385 for electronic communications.8 In Wales the only fees are £80 for agricultural, forestry or demolition applications and £380 for electronic communications applications.9
Publicity requirements and practices vary. Some permitted development rights require the applicant to display a site notice (Part 6, agriculture; Part 11, demolition) or notify the owner of the land (Part 16, communications) whilst publicity and consultation requirements may be placed on the local planning authority (Part 3, change of use; Part 4, Class E temporary filming, Part 16). The timing of the publicity will also vary: a site notice is only displayed under agricultural permitted development if the authority has decided that prior approval is required,10 whilst notices are displayed under other rights when the initial application is made.
A form of prior approval applies to larger single storey rear extensions to dwellinghouses in England.11 The applicant must serve notice on the local planning authority, who then notify each adjoining owner or occupier. If any of those notified object then the prior approval of the local planning authority is required as to ‘the impact of the proposed development on the amenity of any adjoining premises’.12
The prior approval process must be taken to a successful conclusion before the development is carried out. It does not operate retrospectively.13
This article is taken from Richard Harwood’s new book Planning Permission, to be published by Bloomsbury Publishing in February 2016.