Neighbouring properties — Erection of glasshouse — Building sited more than 25m from metalled road — Council requiring no further details after receiving application and plan — Whether development on agricultural land comprised in an agricultural unit — Whether applicant entitled to consultation — No enforcement action taken — Applications for judicial review granted
The applications for judicial review were linked and concerned the erection by L of a glasshouse at Heverswood Farm, Chart Lane, Brasted, Kent. P, the applicant, was the owner of the property called Heverswood immediately to the east of Heverswood Farm. In May 1992, Sevenoaks District Council determined under the GDO, Part 6, Schedule 2, that further details did not need to be submitted in respect of the proposed glasshouse. In 1994, they decided not to take enforcement action against the actual erection of the glasshouse. Permitted developments under the GDO were, inter alia, those on land comprised in an agricultural unit of more than 5ha which were reasonably necessary for the purposes of agriculture within that unit. Such development was not permitted on a separate parcel of land less than 1ha or within 25m of a classified road. Under permitted development the developer must apply to the local planning authority for determination whether prior approval would be required together with details describing the proposed development. The two properties had a common boundary and there had been a dispute between the owners concerning unpermitted development of a barn.
In 1992 L applied for determination for the glasshouse erection and gave dimensions, etc. The application was rejected on the ground that it was within 25m of a road, but when measurements showed that to be otherwise, the authority required no further details. P sought judicial review on the grounds, inter alia, that no proper consideration was given to the question of agricultural land. The glasshouse was erected in 1994 and it was substantially smaller than the original specifications given to the council. No enforcement action was taken. The applications for judicial review related to the decisions of Sevenoaks District Council in 1992 when the council required no further details and to the decision not to take enforcement action in 1994.
Held The applications were granted.
1. Whether land was “agricultural land” had to be considered at the time of the determination. If there was a material delay between the determination and the works, the question might have to be considered again and might not in any particular case have the same answer.
2. A question whether land was in use for agriculture and so used for the purposes of a trade or business was not likely to be a straightforward paper inquiry. It might require site inspections and consideration of a range of facts and perhaps documents by suitably qualified people. It was plain that the legislative intention was that the matters should be considered, subject to questions of perversity, by the planning authorities alone.
3. In the instant case, the council gave the most cursory attention to the question whether the land was “agricultural land”. The only questions raised in the correspondence were whether the proposed building would be situated within 25m of a classified road, the siting of the building and the possibility of planting a conifer screen.
4. Although by 1994 the agricultural activity on the land appeared to have increased, as the 1992 determination was flawed, the premise upon which the 1994 decision proceeded on was a false basis.
Philip Petchey (instructed by Berwin Leighton) appeared for the applicant; John Furber (instructed by the solicitor to Sevenoaks District Council) appeared for the respondent local planning authority.
