The Importance of Proof

If, like Maze Planning, you are involved in making or determining 'prior approval' applications for development, the landscape has just changed.

The 'prior approval' process is most commonly used for telecoms masts and antennae, agricultural and forestry development, and before demolition of buildings, to give local planning authorities an opportunity to consider if the proposal is Permitted Development (ie not requiring an application for planning permission) and that the details of the particular scheme, such as those relating to siting and materials, are acceptable.

The requirement to seek 'prior approval' is matched by strict time limits which local authorities must adhere to when dealing with the submission.  If a local authority sends no notification within the specified time limit, then the prior approval process is deemed to have been satisfied and the development can go ahead in the form submitted.

A recent legal case has directed that a local authority must be able to prove that it sent a timely response if it is later to rely on that to query the development concerned.  In effect, nothing short of recorded delivery will do to ensure there is proof of both sending and subsequent receipt by the applicant.

The cases in Walsall and Dartford both concerned telecoms mast development, where the local authorities had come to the view that the proposed development was not Permitted Development, and should be rejected.  Letters to that effect were posted but the applicants later said they were never received, so they pressed ahead with the mast installations.  The judge concluded that the local authority notifications could not be deemed to have been properly served at the time of posting because it was key that the relevant information reached the applicant - the simple act of posting did not guarantee that outcome, and was refutable evidence.

Applicants are not going to actively pursue the receipt of timely prior approval decisions because it is to their advantage that the prescribed determination period passes without event, so the responsibility, and burden of proof for timely notification, rests firmly with the determining authority.

There are alternatives to recorded delivery notification - good old fax, if that line of communication is available, and email, so long as there's a follow up mechanism in place to ensure that the email is received by the correct person / organisation and acknowledged within the statutory time limit.  Rightly or wrongly, anything less robust can quite simply be denied by the Applicant.