Introduced as a coalition government measure to free up the planning system after the 2009 financial crisis, the permitted development rights contained within Schedule 2, Part 3 of (what is now) the ‘2015 GPDO’ were originally introduced, and later expanded, to create what were intended to be a series of shortcut routes for applicants to gain planning permission.

There has been plenty of controversy as the legal interpretation of this decision-making framework – and in particular, the prior approval application process – has come under close scrutiny from the courts.

This confusion is neatly illustrated by the recent judgments in R. (on the application of Warren Farm (Wokingham) Ltd) v Wokingham BC [2019], and now, Gluck v Secretary of State for Housing Communities and Local Government [2020], with a pending appeal to the Court of Appeal in Gluck.

Article 7 of the GPDO: Warren Farm and Gluck

Article 7 of the 2015 GPDO specifies that the authority’s decision on a prior approval application must be made within the time limit specified within Schedule 2 (in a case where a time limit is so specified), or “within such longer period as may be agreed by the applicant and the authority in writing” (art. 7(c)).

This had seemed straightforward, and perfectly logical too, because authorities occasionally need more time to decide applications where the only other practical option would be for them to refuse prior approval. This is due to the effect of paragraph W(11)(c) which states that development must not begin before the expiry of a period of 56 days without the authority notifying the applicant whether prior approval is given or refused. Applicants are often happy to wait a bit longer rather than move into a drawn-out appeal process.

So it came as a great surprise when the judgment in R. (on the application of Warren Farm (Wokingham) Ltd) v Wokingham BC was delivered, in which the court decided (with perhaps some rather dubious reasoning) that, contrary to commonly accepted wisdom, there was no means of extending the time period for the authority’s decision under Schedule 2 by written agreement.

“All out of Gluck”?

As a result of the Warren Farm decision, canny developers instantly realised that some prior permitted development proposals might now benefit from the legislative ‘default’ permission under paragraph W(11)(c) where the determination period had been extended in this fashion. In relation to those schemes, it would still need to be proven that all the other ‘headline’ criteria are met, having regard to the earlier judgments in Keenan and Marshall.

But unsurprisingly, perhaps, the opportunity to take advantage of this result now seems to have gone. In Gluck, the judge criticised the judgment in Warren Farm as leaning too heavily on a literal interpretation of the legislative scheme, which produced unreasonable and unworkable results. Quite simply, the judge in Warren Farm had got it wrong, although it must also be acknowledged that, at the time of writing, an appeal is outstanding.


For now, any development carried out purely in reliance upon the judgment in Warren Farm must be considered at high risk of enforcement action being taken. In those cases, developers will still be able to resort to the usual planning ‘merits’ arguments as to why any unauthorised development should be allowed to remain in situ.

More interestingly, however, this latest judgment does not rule out the possibility that, according to the facts of any given case, a written agreement to extend time may fail to meet the basic parameters of Article 7(c) – and indeed that was the cause of the original dispute in Gluck. For example, there could be evidential arguments over whether the parties had actually reached a written agreement at all, and differences of opinion over whether that agreement was made in sufficient time. But the judge in Gluck was also quick to observe that Article 7(c) does not seek to impose the same contractual formalities normally associated with property transactions.

Finally, it is also worth noting that whilst Article 7 imposes a specific obligation upon the authority to make its decision within the relevant time limit set out in Schedule 2, what actually matters most is the date on which the applicant is actually notified by the authority of its decision, or else the default permission will be engaged.

If you would like to discuss any of the issues raised in this article, please contact Ben Garbett.

For further information please contact:

This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.