Expansive Interpretation of 'Adjoining Premises' and 'Amenity' in Class AA Under the GPDO: Analysis of CAB Housing Ltd v Secretary of State [2023] EWCA Civ 194

Introduction

The case of CAB Housing Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor ([2023] EWCA Civ 194) presented a pivotal question concerning the interpretation and application of Class AA of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO). CAB Housing Ltd., the appellant, sought prior approval for enlarging a single-storey detached dwelling by adding an additional storey. The crux of the dispute lay in how the local planning authority should evaluate such applications, particularly regarding the scale of development and its impact on adjoining premises under permitted development rights.

Summary of the Judgment

The England and Wales Court of Appeal (Civil Division) upheld the decision of the lower court, dismissing CAB Housing's appeal against the refusal of prior approval by Broxbourne Borough Council. The Court of Appeal affirmed that the local planning authority correctly interpreted Class AA, particularly in its broad understanding of "adjoining premises" and "amenity." The judgment clarified that the scale of development is indeed subject to prior approval controls and that terms like "adjoining premises" and "amenity" carry broader implications than narrowly defined.

Analysis

Precedents Cited

The judgment extensively referenced previous cases to frame its interpretation:

Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367: Addressed the separation of "scale" and "appearance" in planning permissions.
MMF (UK) Ltd. v Secretary of State for Communities and Local Government [2010] EWHC 3686 (Admin) and Crystal Property (London) Ltd. v Secretary of State [2016] EWCA Civ 1264: Explored distinctions between "scale" and "appearance" in building assessments.
McGaw v Welsh Ministers [2021] EWCA Civ 976: Demonstrated pragmatic statutory interpretation in permitted development contexts.
Corbett v Cornwall Council [2022] EWCA Civ 1069: Discussed the interpretation of "immediately adjoining" in development plans.
Rights: Community: Action v Secretary of State for Housing and Local Government [2021] EWCA Civ 1954: Examined the relationship between permitted development rights and prior approval processes.

These cases collectively influenced the court's approach to interpreting legislative terms within the context of permitted development and prior approvals.

Legal Reasoning

The court emphasized the role of statutory interpretation, asserting that interpreting planning legislation aligns with the general principles of understanding statutes. Key points in the legal reasoning included:

Scale of Development: The court rejected the appellant's argument that the scale of development under Class AA is fixed and cannot be influenced by prior approval. Instead, it affirmed that the scale is subject to assessment under the prior approval conditions, specifically considering its impact on amenity and external appearance.
'Adjoining Premises': The term was interpreted broadly to include not just contiguous properties but also those in proximity, thereby encompassing a wider range of neighbors potentially affected by the development.
'Amenity' and 'External Appearance': Both terms were given expansive meanings. "Amenity" was not limited to overlooking, privacy, and loss of light but also included other factors such as noise and overshadowing. Similarly, "external appearance" was not confined to specific elevations but considered the overall visual impact on the locality.
Use of 'Including': The court held that the term "including" in the legislative text serves to provide examples rather than impose exhaustive limitations, thereby supporting a broader interpretation of related considerations.

Impact

This judgment has significant implications for future applications under Class AA of the GPDO:

Broader Assessments: Local planning authorities are empowered to conduct more comprehensive assessments of the impact of developments, considering a wider range of factors affecting neighboring premises.
Clarity in Interpretation: The clear delineation of terms like "adjoining premises" and "amenity" provides greater guidance for developers and authorities, reducing ambiguity in the application process.
Enhanced Planning Controls: By affirming the authority's discretion in evaluating scale and appearance, the judgment reinforces the role of local authorities in maintaining the character and amenity of neighborhoods.
Encouragement of Responsible Development: Developers must now account for a broader set of criteria when seeking prior approval, potentially leading to more considerate and community-sensitive building practices.

Overall, the judgment balances the facilitation of development with the protection of community interests, aligning with the objectives outlined in the Explanatory Memorandum of the GPDO amendments.

Complex Concepts Simplified

Permitted Development Rights

Permitted Development Rights allow certain building works and changes of use to be carried out without needing to apply for full planning permission. Class AA specifically refers to the enlargement of dwelling houses by adding up to two additional storeys or one additional storey for single-storey dwellings.

Prior Approval

Prior Approval is a simplified form of planning permission required for certain types of permitted development. It involves the local planning authority reviewing specific aspects of the proposed development, such as its impact on neighboring properties and the external appearance of the building.

Statutory Interpretation

Statutory Interpretation involves courts determining the meaning of legislation. In this case, it pertains to how terms within the GPDO are understood and applied in the context of permitted development and prior approvals.

Amenity

Amenity refers to the comfort, convenience, or well-being of individuals in a particular environment. In planning terms, it includes factors like privacy, light, noise levels, and overall living conditions affected by a development.

External Appearance

External Appearance pertains to how a building looks from the outside, including its design, materials, color, and architectural features. It plays a crucial role in maintaining the visual harmony of a neighborhood.

Conclusion

The CAB Housing Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor judgment serves as a crucial clarification on the interpretation of Class AA of the GPDO. By adopting a broader understanding of terms like "adjoining premises" and "amenity," the court ensures that local planning authorities retain the necessary discretion to evaluate the comprehensive impact of developmental projects. This balance between facilitating development and preserving community well-being underscores the evolving nature of planning law, striving to meet housing needs while safeguarding neighborhood character.

For practitioners and developers, the judgment emphasizes the importance of thorough impact assessments when seeking prior approval under Class AA. Understanding the expansive scope of considerations will be vital in navigating the planning process effectively, ensuring compliance, and fostering sustainable development within communities.