CAB Housing Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor

Factual and Procedural Background

The appeal concerns the interpretation of Class AA of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 ("the GPDO"), which allows permitted development rights to enlarge dwelling houses by constructing additional storeys. The appellant, Company A, appealed against an order dismissing its application for statutory review of an inspector's decision. The inspector had dismissed Company A's appeal against the refusal by the local planning authority, Company B, of an application for prior approval for adding a single storey to an existing single-storey detached dwelling at a specified address in The City.

The inspector's decision, dated 15 June 2021, found that the proposed development would have an adverse impact on the amenity of adjoining premises and on the external appearance of the dwellinghouse, particularly due to its scale and design, and dismissed the appeal. Subsequently, Holgate J. dismissed Company A's statutory review application on 3 February 2022. Permission to appeal was granted by Lewison L.J., leading to this appeal.

Legal Issues Presented

1. Whether the judge erred in holding that the decision-maker may control the scale of the proposal within the ambit of the prior approval controls in paragraph AA.2(3)(a) of the GPDO.
2. Whether the judge was wrong to reject the submission that the phrase "adjoining premises" in paragraph AA.2(3)(a)(i) refers only to properties contiguous with the subject property.
3. Whether the judge erred in rejecting the submission that consideration of "amenity" impacts is limited to overlooking, privacy, or loss of light, and whether the control on "external appearance" is limited to the principal elevation and any side elevation fronting a highway.

Arguments of the Parties

Appellant's Arguments

• The judge's interpretation reduced the value of the permitted development rights by allowing control over scale at the prior approval stage, which should be fixed by the grant of Class AA rights.
• The phrase "adjoining premises" should be narrowly construed to mean only those properties contiguous or abutting the subject property, promoting certainty and consistency with other GPDO provisions and statutory definitions.
• The term "amenity" in paragraph AA.2(3)(a)(i) is limited to overlooking, privacy, and loss of light, excluding other factors such as outlook, based on the principle of expressio unius est exclusio alterius and the use of the word "including".
• The assessment of "external appearance" under paragraph AA.2(3)(a)(ii) should be confined to the principal elevation and side elevations fronting a highway, reflecting the intention to restrict consideration to publicly visible elevations.
• The distinction between "scale" and "appearance" established in other planning contexts (e.g., reserved matters approvals) applies, and scale is fixed by the permitted development right, not subject to prior approval.

Respondent's Arguments (Secretary of State and Local Planning Authority)

• The judge correctly held that the scale of the development is subject to control within the prior approval process under paragraph AA.2(3)(a).
• The word "adjoining" should be given a wider meaning to include premises lying close to the development, not limited to those contiguous, consistent with modern usage and practical considerations in assessing amenity impacts.
• The use of "including" in the provisions is inclusive rather than restrictive, allowing consideration of amenity impacts beyond overlooking, privacy, and loss of light, such as outlook and overbearing effects.
• The control of external appearance is not limited to specified elevations but may include other elevations and impacts on neighbouring premises and the locality.
• The prior approval process is an integral part of the permitted development right, and the grant of permission is contingent upon prior approval, which involves the exercise of planning judgment including on scale.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework governing Class AA of Part 1 of Schedule 2 to the GPDO, focusing on the interplay between permitted development rights and the prior approval process. It emphasised that the permitted development right granted by Class AA is not unconditional but contingent upon obtaining prior approval from the local planning authority regarding specific matters, including amenity and external appearance.

In addressing the first issue, the court rejected the appellant's argument that the scale of development is fixed by the grant of Class AA rights and not subject to prior approval. It held that the prior approval process necessarily includes control over scale as a relevant factor in assessing impacts on amenity and external appearance. The court distinguished previous case law on scale and appearance in the reserved matters context as inapplicable to the specific statutory scheme of Class AA.

Regarding the second issue, the court interpreted "adjoining premises" in paragraph AA.2(3)(a)(i) to have a wider meaning than merely contiguous or abutting properties. It found that modern usage and practical considerations support a broader interpretation to include premises lying close to the development, consistent with the requirement to notify adjoining owners or occupiers and to consider their representations. The court rejected a narrow linguistic approach in favour of a pragmatic statutory interpretation aligned with the purpose of the provisions.

On the third issue, the court found that the term "amenity" is not confined to overlooking, privacy, and loss of light, but includes other relevant factors such as outlook and overbearing impact. Similarly, the "external appearance" of the dwellinghouse is not limited to the principal elevation and side elevations fronting a highway, but may include other elevations and impacts on neighbouring premises and the locality. The court reasoned that the use of "including" in the statutory text is inclusive rather than restrictive, and that a meaningful assessment requires consideration beyond the enumerated examples.

The court also noted that the prior approval process involves the local planning authority exercising planning judgment within the limits set by the legislation, and that this process is less demanding than a full planning permission application.

Holding and Implications

The court DISMISSED the appeal.

The decision confirms that under Class AA of Part 1 of Schedule 2 to the GPDO, the local planning authority's prior approval process includes control over the scale of the proposed development, and that "adjoining premises" is to be interpreted broadly to include premises lying close to the site, not only those contiguous. The scope of "amenity" and "external appearance" considerations is also broad, encompassing factors beyond those specifically enumerated in the legislation.

The ruling reinforces the integral role of the prior approval process in the exercise of permitted development rights under Class AA and clarifies the statutory interpretation of key terms within the GPDO. No new precedent beyond the immediate statutory interpretation was established, and the decision directly affects the parties by upholding the inspector's dismissal of the appeal and the local planning authority's refusal of prior approval.