Town and country planning – Planning permission – Prior approval – Claimant gliding club applying for judicial review of defendant local authority’s decision to grant prior approval for barn conversion – Whether defendant failing to have regard to safety risks of access to barn by crossing runway – Whether defendant failing to give notice of application – Application granted
The claimant was a long-established gliding club with more than 400 members which staged major competitions each summer. It was based at Husbands Bosworth in Leicestershire on part of a former Second World War airfield. The site comprised a runway, a clubhouse and some hangars. There were also caravans on the site used by visiting pilots. The runway ran parallel to the road. There were winches at either end of the runway to launch gliders.
Airfield Farm was next to the airfield’s site, and shared most of the northern boundary of that site. In February 2019, the defendant local authority granted prior approval to the farm owners for a proposal to convert a barn on the property. The change of use was permitted development under Class Q of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO). It fell within either Class Q(a) or (b).
The defendant concluded that the location or siting of the barn did not make it “otherwise impracticable or undesirable for the building to change from agricultural use to a use falling within Class C3 (dwelling house) of the Schedule to the Use Classes Order” (para Q.2(1)(e)). The barn had access to the road via a track that ran across the airfield. A right of way over the track attached to the barn.
The claimant applied for judicial review of the defendant’s decision to grant prior approval. It contended, amongst other things, that when granting prior approval, the defendant failed to have regard to the safety risks that could arise from the fact that anyone living in or visiting the barn would have to cross the runway. The claimant also complained that the defendant had failed to give notice of the application for prior approval as required by para W(8) of part 3 of Schedule 2 to the GPDO.
Held: The application was granted
(1) Whether the claimant had satisfied the requirement to display a notice “near the land to which the application relates” was a question of objective fact to be determined by the court. The question was whether in fact the notice was near the land to which the application related, which depended on the circumstances of the land itself. No hard and fast rule could be formulated by reference to the absolute distance between the notice and the land: in a rural location, what was near might extend over a greater distance than an urban area. Paragraph W(8)(a) and (b) were alternative provisions. The planning authority could either serve the notice on any adjoining owner or occupier, (b), or display the notice on or near the relevant land, (a). The object was to put neighbours on notice of the application for prior approval. If a local planning authority opted to comply with its obligation by placing the notice near to the land, it was relevant to have regard to the extent to which neighbours ought reasonably to have been put on notice. Those considerations weighed in the balance in different ways from case to case.
In the present case, the defendant failed to comply with the requirement to display the required notice near to the barn site. On the facts, placing the notice opposite the entrance to the gliding club was not good enough. That was some 900m from the barn, which, even in a rural location, was a considerable distance. The entrance to the gliding club was not the way to the barn; access from the road was via the access track. The requirement to display the notice near the land to which the application related was not a requirement to display the notice at the nearest possible location. But, though the notion of near was flexible, it had to have a breaking point. In this case, the end of the access track was significantly closer, and it was the point of access from the road to the barn. In all the circumstances, a notice put opposite the entrance to the club did not meet the obligation under para W(8)(a).
(2) A public authority taking a decision in exercise of a discretionary power had to be able to decide for itself which matters were relevant considerations. However, that position gave way to any express or implied requirement on the face of the relevant power either to take account of or disregard any specific matter. Paragraph Q.2(1)(a) – (f) identified matters to which a local planning authority had to have regard. That included, at (e), whether the location or siting of the building made it either impracticable or undesirable for the building to change from agricultural use to use as a dwelling. Given that requirement, given the proximity of the claimant to the barn, and given that access to the barn was by means of the access track across the runway, both the likely impact of noise from the claimant on those living in the property and the risks to the safety of persons using the access track to go to and from the property were relevant matters when determining the application for prior approval.
(3) Officer’s reports had to be read benevolently and reasonably but, in the present case, even a benevolent reading of the officer’s report could not change the fact that there was no mention at all either of the possible impact of noise from the gliding club or of the safety risks. Overall, the defendant had failed to have regard to relevant considerations.
(4) The decision under challenge was taken on 28 February 2019. The proceedings were filed on 25 April 2019. It was a decision “under the planning acts” within CPR 54.5(5). Although the immediate premise for the decision was the power at para Q.2(1) of the GPDO, that power was expressly anticipated by section 60 of the Town and Country Planning Act 1990. It followed that the present claim was filed late. However, the court would extend time for filing the claim form so that the claim was not time-barred.
Jenny Wigley (instructed by Keystone Law) appeared for the claimant; Jack Smyth (instructed by Harborough District Council Legal Services) appeared for the defendant.
Eileen O’Grady, barrister
