Town and country planning – Permitted development – Prior approval – Appellant seeking prior approval of agricultural or forestry development – Local authority failing to respond within 28 days – Appellant proceeding with works – Local authority issuing enforcement notices alleging breach of planning control by change of use of agricultural land to mixed use – Inspector dismissing appeal against notices – High Court upholding decision – Appellant appealing – Whether development being “permitted development” as result of local authority’s failure to respond to application for prior approval – Appeal dismissed
The appellant owned a property known as Blanket Mill Farm, Goose Rye Road, Worplesdon, Surrey. The site was about 5.6ha in size within the green belt. In 2012 the appellant applied for prior approval for agricultural or forestry development, including a hard-core track and turning area, in accordance with para A2(2)(iii)(cc) of Class A of Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. The first respondent local authority did not respond to that application and the appellant proceeded with the works.
The first respondents subsequently issued two enforcement notices alleging: (i) an unlawful change of use from agricultural to mixed agricultural and residential use; and (ii) the construction of a hard-core track and requiring its removal. The appellant appealed against the notices pursuant to section 174(2) of the Town and Country Planning Act 1990. An inspector appointed by the second respondent secretary of state dismissed the appeals. On the appeal against the notice relating to the “hard-core track” on ground (c) in section 174(2) of the 1990 Act, that the matters stated in the notice “… do not constitute a breach of planning control”, the appellant contended that the construction of the track was “permitted development” under Class A of Part 6 and Class A of Part 7 of Schedule 2 to the 1995 Order. The inspector rejected that contention. The High Court upheld that decision, holding that a local authority’s failure to determine or respond to a request for prior approval could not bypass the need to fulfil the conditions necessary before development would be permitted: [2016] EWHC 427 (Admin); [2016] PLSCS 77.
The appellant appealed. The single issue was whether the effect of the first respondents’ failure to respond within 28 days to an application made by the appellant for a determination whether its prior approval would be required for the “siting and means of construction” of the track was that the track had planning permission, even if it was not within the scope of the “permitted development” provisions for buildings or operations for agriculture under Class A of Part 6 or Class A of Part 7 to the 1995 Order.
Held: The appeal was dismissed.
(1) Under the 1995 Order (and now under the Town and Country Planning (General Permitted Development) (England) Order 2015) various kinds of development had been authorised as “permitted development”. Article 3(1) provided for planning permission for classes of development set out in Schedule 2 and article 3(2) provided that permission granted under article 3(1) might be subject to the conditions specified, class by class, in Schedule 2. Permission under Classes 6 and 7 was conditional upon an application for prior approval. Crucially, the grant of planning permission came about not through the procedure in article 3(2) but through the operation of article 3(1). To be “permitted development”, the development had to come fully within the description of the permitted development provided for within each class. If it did not, the provisions for conditions in article 3(2) did not apply. Those provisions did not apply to forms of development outside that particular class; nor could they enlarge that class.
(2) Taken out of its proper context, para A.2(2)(i) in Class A of Part 6, mirrored in Part 7, which stated that “[development] is permitted… subject to the following conditions…” might be construed, wrongly, as embodying a grant of permission under Class A. But when read in context, it simply meant that development that properly constituted permitted development was subject to those specified conditions. For those conditions to come into play, the proposed development had to fall within the description of “permitted development” in the relevant class. The condition in para A.2(2)(i) which required the developer to apply to the local authority for a determination whether prior approval would be required did not impose on the local authority a duty to decide whether the development was permitted development. Nor did it confer power on the local authority to grant planning permission for development outside the defined class of permitted development. The sole and limited function of the provision was to enable the local authority to determine whether its own prior approval would be required for the proposed permitted development. If it failed to make a determination within the stipulated 28 days, the developer could proceed only with development which was in fact permitted development. None of those conclusions was at odds with the basic principle that development which was not permitted development could not become permitted development by default when the local authority failed to make a determination within the 28-day period. That analysis was compatible with certainty and efficiency in the regime of permitted development regime: Murrell v Secretary of State for Communities and Local Development [2010] EWCA Civ 1367; [2010] PLSCS 308 considered.
Jonathan Wills (instructed by Coyle White Devine) appeared for the appellant; The first respondent did not appear and was not represented. Estelle Dehon (instructed by the Government Legal Department) appeared for the second respondent.
Eileen O’Grady, barrister
Click here to read transcript: Keenan v Woking Borough Council and another
