Town and country planning – Permitted development – Prior notification – Prior approval – Claimant making prior notification application seeking determination by defendant local planning authority of whether prior approval required for proposed erection of agricultural building pursuant to permitted development rights – Defendant issuing decision notice refusing prior approval – Claimant applying for judicial review of decision – Whether defendant exceeding powers – Whether decision-maker required to adopt two-stage process – Application dismissed
The claimant wished to erect an agricultural building at Llanerch Y Coed, Dorstone, Hereford, pursuant to permitted development rights under para A of part 6 of schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO). It made a prior notification application to the defendant local authority seeking confirmation whether prior approval was required in respect of the siting, design and external appearance of the proposed building under para A.2(2)(a)(i).
On receipt of the application, the defendant determined that prior approval should be refused because it did not meet the definitional requirements of para A. It also notified the claimant that planning permission was required because, as there was insufficient evidence that the building was “reasonably necessary for the purposes of agriculture”, it did not qualify for permitted development rights under para A.
The claimant applied for judicial review of those decisions contending, inter alia, that the defendant had misdirected itself as to its powers in respect of the application for prior notification because, on such an application, the defendant could only make a decision on whether prior approval was required; it had no power to determine the further questions whether prior approval ought to be granted or whether the proposed development fell outside the scope of para A so as to require planning permission. Further, the GPDO envisaged a two-stage procedure which the defendant failed to follow so that the claimant and other interested parties were deprived of the opportunity to make representations to the defendant on whether prior approval should be granted.
Held: The application was dismissed.
(1) Prior approval meant that a developer had to seek approval from the local planning authority that specified elements of the development were acceptable before work could proceed. The matters for prior approval varied depending on the type of development and those were set out in full in the relevant parts in schedule 2 to the GPDO. A local planning authority could not consider any other matters when determining a prior approval application.
Prior approval was required for some change of use permitted development rights. Certain other types of permitted development including the erection of new agricultural buildings, demolition and the installation of telecommunications equipment also required prior approval.
(2) The statutory requirements relating to prior approval were much less prescriptive than those relating to planning applications, as prior approval was a light-touch process which applied where the principle of the development had already been established. Where no specific procedure was provided in the GPDO, local planning authorities had a discretion as to what processes they put in place. It was important that a local planning authority did not impose unnecessarily onerous requirements on developers, and did not seek to replicate the planning application system.
On an application to a local planning authority for a determination as to whether its prior approval was required, the authority was bound to consider and determine whether the development otherwise fell within the definitional scope of the particular class of permitted development. It followed that the defendant had not acted beyond its powers in determining that the proposed development did not meet the definitional requirements of para A: New World Payphones Ltd v Westminster City Council and another [2019] EWCA Civ 2250; [2020] EGLR 5 applied. Keenan v Woking Borough Council [2019] EWCA Civ 2250 and R (on the application of Marshall) v East Dorset District Council [2018] EWHC 226 (Admin), [2018] PLSCS 28 considered.
(3) Paragraph A.2 clearly envisaged a two-stage procedure: first, a decision on whether prior approval was required; and, secondly, a decision on whether to grant prior approval. However, the language used did not point to it being a mandatory requirement. Accordingly, a local planning authority might, in the exercise of its discretion, determine both prior notification and prior approval on the same occasion if it was appropriate and procedurally fair to do so in the particular circumstances. Likely relevant considerations were: whether the local planning authority had sufficient information to determine the application for prior approval; whether the applicant had had a fair opportunity to address any matters arising for consideration in the application for prior approval; and whether the public notification/consultation requirements had been met: Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367; [2010] PLSCS 398 considered.
(4) Part 6 of schedule 2 to the GPDO did not provide for a separate application for prior approval and it appeared to be envisaged that the application for prior notification would also serve as the application for prior approval, if required. The application form had given the claimant the opportunity to provide the information which the defendant required to decide: (i) whether the proposed development met the definitional requirements; (ii) whether prior approval was required; and (iii) whether prior approval ought to be granted, with or without conditions, or refused.
In the present case the defendant was entitled to conclude that it had insufficient evidence to satisfy it that the building was reasonably necessary for the purposes of agriculture, as the onus of establishing permitted development was on the claimant. Once the defendant had concluded that the claimant’s application could not progress further because the proposed development fell outside the scope of the permitted development in para A, it was rational for it to exercise its discretion to determine the prior notification application and prior approval application on the same occasion. There would have been no purpose in going on to consider whether to grant prior approval for siting, design and external appearance at a later date, when the application did not come within the scope of permitted development under para A.
Daniel Stedman Jones (instructed by Attwells Solicitors LLP) appeared for the claimant; Andrew Byass (instructed by Herefordshire Council Legal Services) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Smolas) v Herefordshire Council