Keenan v Woking Borough Council and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Lewison |
| Judgment Date | 16 June 2017 |
| Neutral Citation | [2017] EWCA Civ 438 |
| Docket Number | Case No: C1/2016/1733 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 June 2017 |
[2017] EWCA Civ 438
Lord Justice Lewison
and
Lord Justice Lindblom
Case No: C1/2016/1733
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MRS JUSTICE LANG DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jonathan Wills (instructed by Coyle White Devine) for the Appellant
The First Respondent did not appear and was not represented
Ms Estelle Dehon (instructed by the Government Legal Department) for the
Second Respondent
Hearing date: 16 May 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
What was the effect of a local planning authority's failure to respond within 28 days to an application under the Town and Country Planning (General Permitted Development) Order 1995 ("the GPDO 1995") for a determination as to whether its prior approval would be required for details of a hardcore track said by the applicant to be "permitted development" on "agricultural land"? That is the central question in this appeal.
The appellant, Mr Patrick Keenan, appeals against the order of Lang J., dated 8 March 2016, dismissing his appeal to the High Court under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against the decision of an inspector appointed by the second respondent, the Secretary of State for Communities and Local Government, in a decision letter dated 22 June 2015, dismissing appeals by Mr Keenan and his wife against two enforcement notices issued by the first respondent, Woking Borough Council. The enforcement notices alleged breaches of planning control on land known as Blanketmill Farm, Goose Rye Road, Worplesdon. I granted permission to appeal on 31 January 2017.
Blanketmill Farm is in the Green Belt. It extends to about 5.6 hectares, 4.8 hectares of which is in the borough of Woking, about 0.8 hectare in the adjoining borough of Guildford. It has a long planning history, in the course of which the council has several times taken enforcement action. The two enforcement notices in these proceedings were issued by the council on 20 March 2014. The breaches of planning control alleged in them were, respectively, the making of a material change of use of the land, without planning permission, from agriculture to a mixed agricultural and residential use, and the construction, without planning permission, of a "hardcore track".
The appeals against the enforcement notices were heard by the inspector at an inquiry in January and February 2015. She dismissed both appeals on all grounds and upheld the notices. We are concerned here with her conclusions on the appeal against the notice relating to the "hardcore 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". In their appeal on ground (c) Mr and Mr Keenan contended that the construction of the track was "permitted development" under the GPDO 1995. The inspector rejected that contention.
The issue in the appeal
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).
The GPDO 1995
Section 57(1) of the 1990 Act contains the basic provision that "planning permission is required for the carrying out of any development of land". Section 58(1)(a) provides that planning permission may be granted by a "development order". The GPDO 1995 (now replaced by the Town and Country Planning (General Permitted Development) (England) Order 2015, which came into force on 15 April 2015) was a "development order". Section 60(1) provides that planning permission granted by a development order "may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order".
Article 3 of the GPDO 1995 provided, so far as is relevant here:
"(1) Subject to the provisions of this Order … planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.
(2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2.
… ."
Part 6 of Schedule 2 related to "Agricultural Buildings and Operations", Part 7 to "Forestry Buildings and Operations".
Class A of Part 6 ("Development on units of 5 hectares or more") provided:
"A. Permitted development
The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of –
(a) works for the erection, extension or alteration of a building; or
(b) any excavation or engineering operations,
which are reasonably necessary for the purposes of agriculture within that unit."
Paragraph A.2 of Class A provided, so far as is relevant here:
"A.2 Conditions
…
(2) Subject to paragraph (3), development consisting of –
…
(b) the formation or alteration of a private way;
…
is permitted by Class A subject to the following conditions –
(i) the developer shall, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to … the siting and means of construction of the private way …;
(ii) the application shall be accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site together with any fee required to be paid;
(iii) the development shall not be begun before the occurrence of one of the following –
(aa) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(bb) where the local planning authority give the applicant notice within 28 days following the date of receiving his application of their determination that such approval is required, the giving of such approval; or
(cc) the expiry of 28 days following the date on which the application was received by the local planning authority without the local planning authority making any determination as to whether such approval is required or notifying the applicant of their determination;
…
(v) the development shall, except to the extent that the local planning authority otherwise agree in writing, be carried out –
(aa) where prior approval is required, in accordance with the details approved;
(bb) where prior approval is not required, in accordance with the details submitted with the application; and
(vi) the development shall be carried out –
(aa) where approval has been given by the local planning authority, within a period of five years from the date on which approval was given."
The relevant definition of "agricultural land" was in paragraph D.1:
"'agricultural land' means land which, before development permitted by this Part is carried out, is land in use for agriculture and which is so used for the purposes of a trade or business, and excludes any dwellinghouse or garden."
The "Permitted development" provisions in Class A of Part 7, in respect of "[the] carrying out on land used for the purposes of forestry … of development reasonably necessary for those purposes" consisting of, among other things, "(b) the formation, alteration or maintenance of private ways", were in parallel terms to the corresponding provisions of Part 6. They included materially similar provisions as to the conditions subject to which the development was granted (in paragraph A.2(1)(a) to (f)).
The guidance in Planning Policy Statement 7: Sustainable Development in Rural Areas ("PPS7")
PPS7, published in August 2004, was revoked by the National Planning Policy Framework on 27 March 2012. However, Annex E: Permitted Development Rights for Agriculture and Forestry was retained until the Government issued the Planning Practice Guidance on 6 March 2014, and was therefore still current when Mr Keenan made an application to the council for "prior notification of agricultural or forestry development – proposed road" on 29 March 2012.
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". Under the heading "The determination procedure", the guidance included these passages:
"E12. In certain cases, the permitted development rights for development on agricultural units of 5 hectares or more and for forestry cannot be exercised unless the farmer or other developer has applied to the local planning authority for a determination as to whether their prior approval will be required for certain details … . The local planning authority have 28 days for initial consideration of the proposed development. Within this period they may decide whether or not it is necessary for them to give their prior approval to these details of development involving new agricultural and forestry buildings … .
…
E14. The determination procedure provides local planning authorities with a means of regulating, where necessary, important aspects of agricultural and forestry development for which full planning...
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