Permitted Development: Deemed Approval: development not within PD rights

Keenan v Woking Borough Council & Anor [2018] PTSR 697):  https://www.bailii.org/ew/cases/EWCA/Civ/2017/438.html

The issue in the appeal

 

  1. The single issue in the appeal is whether, contrary to the judge’s conclusion, the effect of the council’s failure to respond within 28 days to an application made by Mr Keenan for a determination as to 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 of Schedule 2 to the GPDO 1995 (or for forestry under Class A of Part 7).”

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  1. Paragraph E3 of Annex E emphasized that, under Part 6 of Schedule 2 to the GPDO 1995, development “must”, among other things “be on agricultural land, which means land in use for agriculture for the purposes of a trade or business …”, and “be reasonably necessary for the purposes of agriculture within the unit”. ….”

    1. Lang J. distilled the argument before her on the relevant ground of Mr Keenan’s section 289 appeal to this proposition: “once the Council had failed to respond to the application for prior approval within 28 days, the developer was entitled to proceed with the development set out in the application”, and this “achieved the intended certainty and avoided unreasonable delay” (paragraph 87 of the judgment).

 

 

  1. The judge rejected that proposition. She based her analysis on the conclusion of Ms Frances Patterson Q.C., as she then was, in Lyons v Secretary of State for Communities and Local Government [2010] EWHC 3652 (Admin), that Part 6 presents a sequence of questions for a local planning authority. First, is the land agricultural land? Second, is it comprised in an agricultural unit of 5 hectares or more? Third, is the development “reasonably necessary for the purposes of agriculture within that unit”? (paragraph 92 of Lang J.’s judgment). That approach had been followed by the inspector in this case. It was “only once these requirements were met that the issue of prior approval for the details of siting and construction fell to be considered” (paragraph 93). Lang J. also saw support for the inspector’s approach in the decisions of the Court of Appeal in Clarke v Secretary of State for the Environment (1993) 65 P. & C.R. 85 and the first instance decision in Harrogate Borough Council v Crossland [2012] EWHC 3260 (QB) (paragraphs 94 to 97). In her view, the inspector was “correct to conclude that a local planning authority’s failure to determine or respond to a request for prior approval could not have the effect of bypassing the need to fulfil the conditions upon which development may be permitted under Class A” (paragraph 98).”

    1. The true analysis, in my view, is this. Under the GPDO 1995, and now under the Town and Country Planning (General Permitted Development) (England) Order 2015, various kinds of development have been authorized as “permitted development”. Some, though not all, of the classes of development described as “permitted development” in Schedule 2 to the GPDO 1995 were subject to particular conditions, specified class by class. This was expressly contemplated in article 3(2). So too was the provision, again class by class, of any relevant exceptions and limitations. We are concerned in this case with two classes of “permitted development”, Class A of Part 6, and Class A of Part 7, and in particular with development consisting of “the formation … of a private way”, neither of which was unconditional. Both were subject to relevant conditions.

 

 

    1. Crucially, the grant of planning permission itself came about not through the procedure to be followed under article 3(2) and the specific provisions for “Conditions” in either class, but through the operation of article 3(1) and the provisions for “Permitted development” in that class. To be “permitted development” in the first place, the development in question had to come fully within the relevant description of the “Permitted development” provided for within each class. If it did not, the provisions for “Conditions” applicable specifically and only to “permitted development” as thus defined could not relate to it. The operation of the provisions for “Conditions” did not, and could not, apply to other forms of development outside that particular class of “Permitted development”. Nor did they, or could they, have the effect of enlarging that class. The conditions applied only to development belonging to the class, and not, in any circumstances, to development of whatever kind outside it.

 

 

    1. If taken out of its proper context, the provision in paragraph A.2(1) in Class A of Part 6 – mirrored in paragraph A.2(1) in Class A of Part 7 – stating that “[development] is permitted by Class A subject to the following conditions …” might be construed, wrongly, as embodying a grant of permission under Class A. But when read in its context, it clearly does not do that. Its meaning, and relevant effect here, is simply that development which is permitted development under Class A, and within the scope of paragraph A.2(2), is subject to the specified conditions.

 

 

    1. It follows that for the provisions relating to conditions in paragraph A.2(2)(i) in Class A of Part 6, or those in paragraph A.2(1)(a) to (f) in Class A of Part 7, to come into play, the development proposed had to fall squarely within the description of “Permitted development”, in the relevant class.

 

 

    1. The condition in paragraph A.2(2)(i), which required the developer, before beginning the development, to apply to the local planning authority for a determination as to whether its “prior approval” would be required to the “siting and means of construction” of the “private way”, did not impose on the authority a duty to decide whether or not the development in question was, in fact, permitted development under Class A – albeit that the guidance in paragraph E14 of Annex E to PPS7 might have been read as encouraging it to do so. Nor did it confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. The sole and limited function of this provision was to enable the local planning authority to determine whether its own “prior approval” would be required for those specified details of that “permitted development”. If the authority were to decide that its “prior approval” was not required, the condition would effectively have been discharged and the developer could proceed with the “permitted development” – though not of course with any development that was not “permitted development”. If, however, the authority failed to make a determination within the 28-day period, again the developer could proceed with the “permitted development”, but again not with any development that was not “permitted development”. The developer would not at any stage have planning permission for development that was not, in fact, “permitted development”.

 

 

    1. The first condition imposed – by paragraph A.2(2)(i) in Class A of Part 6, and by paragraph A.2(1)(a) in Class A of Part 7 – simply prevents the “permitted development” in question being begun. By the condition in paragraph A.2(2)(v) in Class A of Part 6, and the corresponding condition in A.2(1)(e) in Class A of Part 7, if “prior approval” is required, the development must then be carried out in accordance with the details approved, or if “prior approval” is not required, in accordance with the details submitted with the application. But even that condition is, and can only be, a stipulation attached to the planning permission granted by article 3(1) and the “Permitted development” provisions of the relevant class.

 

 

    1. The provisions relating to conditions in Class A of Part 6 and Class A of Part 7 effectively define the ambit of the local planning authority’s jurisdiction in respect of the several kinds of “permitted development” within the relevant class. They do not expressly, or implicitly, engage any other question, such as whether the development is “reasonably necessary”, respectively, for the purposes of agriculture within the agricultural unit or for the purposes of forestry. The local planning authority does not have the power, under the provisions for conditions in either of these two classes, to vary the terms of the “permitted development” rights within the relevant class. Those provisions do not empower an authority to consider whether permission should be granted for development which is not of the specified type and description: for example, in the case of agricultural buildings and operations, development on an agricultural unit smaller than the specified minimum size of five hectares. The fact that the question of whether development is “reasonably necessary” for the relevant purposes is not merely an objective matter, but involves an element of judgment, does not displace that principle.

 

 

    1. This analysis, in my view, sits perfectly well with previous relevant authority in this court. It is not inconsistent with Richards L.J.’s judgment in Murrell. In that case, as Richards L.J. observed (in paragraph 1 of his judgment), the proposed development, a cattle shelter on a farm, “was permitted by Class A of Pt 6 of Sch.2 to the [the GPDO 1995], subject, so far as material, to the conditions in para.A2(2) of Pt 6”. The local planning authority, having insisted on the application being made on a particular form, decided that “prior approval” was required and refused that approval on the basis that the proposed development did not comply with a number of development plan policies referred to in the determination. Richards L.J. concluded that, in the circumstances, permission for the development had “accrued” under the GPDO 1995 (paragraph 28 of the judgment). The application had “complied with the requirements of [the GPDO 1995] and was a valid application” (paragraph 33). Where a “prior approval” application had been “duly made” but there had been no notification of determination within the 28-day period, “planning permission … accrues or crystallises on the expiry of the 28-day period” (paragraph 42).

 

 

    1. None of those conclusions is at odds with the basic principle that development which is not “permitted development” within Class A of Part 6, or Class A of Part 7, cannot become “permitted development”, by default, when the local planning authority does not make a determination within the relevant 28-day period. As Richards L.J. said (in paragraph 45 of his judgment):

 

 

“The question of prior approval under para.A2(2) can only arise in respect of “permitted development” within Class A (i.e. development falling within the terms of Class A) and not excluded by para.A1). Such development is permitted subject to the conditions in para.A2, including the condition relating to prior approval, but those conditions do not affect the principle of development. In recognition of the importance of agriculture and its operational needs, the GPDO has already taken a position on the issue of principle. Thus, as the guidance in Annex E spells out, if [the GPDO 1995] requirements are met, “the principle of whether the development should be permitted is not for consideration” in the prior approval procedure (para.E15).”

 

    1. I do not accept that the analysis I believe to be correct is inimical to certainty and efficiency in the regime for “permitted development”. On the contrary, it seems to me to be entirely compatible with certainty and efficiency. The alternative analysis, in which development that does not fall within Class A of Part 6 or Class A of Part 7 may gain planning permission by default through the operation of the provisions for conditions in those two classes, is not only unsound as a matter of the proper construction of those provisions in their context; it is also wrong in principle. It envisages development outside the range of “permitted development” rights conferred by the GPDO 1995 being deemed to have been granted planning permission simply because the local planning authority had not responded within 28 days to an application for a determination as to whether its “prior approval” of certain details would be required. That would vitiate this part of the statutory scheme.

 

 

    1. In my view, therefore, the judge was right to reject Mr Keenan’s appeal under section 289. The inspector’s conclusion on the ground (c) appeal was lawful.

 

 

  1. I should add that I agree with the inspector’s observation (in paragraph 21 of her decision letter) that “it would have assisted if a timely explanation from the Council as to why [Mr Keenan’s] application could not be entertained could have been provided …”. But in view of the planning history of the site it is perhaps not surprising that no such explanation was given, and the fact that it was not given cannot make any difference to the true position in law.”

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