Agricultural development – Prior notification – Material considerations – Interested parties making prior notification applications for proposed agricultural development comprising construction of polytunnels and agricultural building – Defendant local authority deciding prior approval not required for agricultural development – Claimant seeking judicial review of decision to validate applications – Whether defendants failing to take material considerations into account – Whether material factors under planning acts constituting material considerations for prior approval notices – Claim dismissed
The claimant owned a house in the countryside in Looe, Cornwall. The property was of unassuming appearance, but dated back to the 16th century, and was all that remained of a once significantly larger complex. It had been listed as a grade II building of special architectural or historic interest in 1964, making it one of the most important 2% of non-ecclesiastical listed buildings in the country.
A farm comprising a group of buildings had grown up over several centuries adjacent to the claimant’s property. All or part of the land was subject to an agricultural tenancy owned by the interested parties. They submitted applications for prior notification under condition A.2(2) of Class A of Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (GPDO) relating to the proposed erection of agricultural buildings at the farm, namely, two polytunnels and a mushroom barn. The defendants decided that the proposed agricultural development was permissible under the GPDO without their prior approval from the defendants.
The claimant applied for judicial review of that decision, contending that the defendants had erred in law by failing to take into account material considerations, namely: (i) the impact of the proposed development on the setting of the claimant’s grade II listed building; and (ii) the impact of the development on archaeological interests in the area.
Held: The claim was dismissed.
(1) A local resident might in an appropriate case bring judicial review proceedings seeking to challenge a decision that prior approval was not required. Breach of the local planning authority’s duties under the GPDO did not infect the validity of a planning permission granted by the GPDO. However, a local resident might be entitled to relief from the court if he had suffered prejudice as a result of an irrational decision. The assessment of whether prior approval was required under the GPDO was a summary one in which any report was not to be treated as if it were a full account of all that had been considered or needed to have been considered in determining the short question as to whether or not the matter needed a fuller procedure than the mere acceptance of the effect of the permission granted by the GPDO: R (on the application of Heather Richards) v South Bucks District Council [2004] EWHC 2145 (Admin) considered.
(2) The claimant’s reliance on principles relating to applications for planning permission under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004 were not material considerations of whether prior approval was required. Furthermore, the National Planning Policy Framework guidance was inapposite in such cases, and section 66(1) of the Planning (Listing Buildings and Conservation Areas) Act 1990 and the case law thereunder was also inapplicable to the consideration of whether prior approval was required.
(3) The planning officer’s reports were fully entitled to be set out in brief form and their brevity did not indicate a failure to take account of any material considerations. There was no requirement for a planning authority to provide reasons for a decision whether or not to require details of a Part 6 development for prior approval. Moreover, to the extent that reasons were required, there was nothing to indicate that they had to be given at the time of the decision. In the present case, very full reasons had now been provided from which it was clear that the planning officer had given full consideration of the heritage issues. She had familiarised herself with the relevant planning history and carried out a thorough assessment, having full regard to the material considerations in the case including the issues relating to the setting of claimant’s property and the archaeological interests in the area. Accordingly, that was the end of the challenge since the claimant had not asserted that a decision-maker who had regard to those matters could not rationally have concluded that prior approval was not required. Further, the decisions that prior approval was not required for these small scale agricultural developments were not only rational but obviously right.
Charles Mynors (instructed by Stephens Scown LLP, of Exeter) appeared for the claimant; Edward Helme (instructed by Head of Legal Services, Cornwall Council) appeared for the defendants; The interested parties made submissions in writing.
Eileen O’Grady, barrister
