Paul Smolas v Herefordshire Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 21 June 2021 |
| Neutral Citation | [2021] EWHC 1663 (Admin) |
| Docket Number | Case No: CO/1877/2020 |
| Date | 21 June 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1663 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/1877/2020
The Queen on the application of
Daniel Stedman Jones (instructed by Attwells Solicitors LLP) for the Claimant
Andrew Byass (instructed by Legal Services) for the Defendant
Hearing date: 11 May 2021
Approved Judgment
In this claim for judicial review, the Claimant challenges two decision notices by the Defendant (“the Council”), both dated 9 April 2020. The first decision refused prior approval for the erection of an agricultural building at Llanerch Y Coed, Dorstone, Hereford HR3 6AG (“the Site”) under paragraph A, Part 6, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”). The second decision notified the Claimant that planning permission was required for the building.
Permission to apply for judicial review was granted on the papers on 30 June 2020.
Grounds of challenge
The Claimant's grounds of challenge may be summarised as follows.
Ground 1
The Defendant acted unlawfully, and contrary to the authorities, by:
i) misdirecting itself as to its powers on the Claimant's prior notification application, in which he sought a determination as to whether its prior approval as to siting, design and external appearance of the building was required, pursuant to paragraph A.2(2)(i), Part 6, Schedule 2 of the GPDO;
ii) erroneously purporting to determine the questions whether (i) prior approval should be granted; and (ii) whether the proposed development required planning permission; and
iii) issuing ultra vires decision notices.
Ground 2
Further or alternatively, the Council reached an irrational conclusion when determining the application for prior notification procedure under paragraph A.2(2) of the GPDO, that the building was not “reasonably necessary for the purposes of agriculture” for the purposes of paragraph A of the GPDO. The reasons given by the Council for its decision did not relate to the application for prior notification which the Claimant had made. It relied upon a lack of evidence as to the reasons why the building was reasonably necessary, which was an impermissible reversal of the burden of proof. The Claimant had provided sufficient information for the Council to determine his prior notification application. Furthermore, there was no statutory right of appeal against a local planning authority's decision on a prior notification application.
In summary, the Council resisted the claim for the following reasons.
Ground 1:
In determining a prior notification application as to whether or not prior approval was required, a local planning authority first had to determine whether the development met the definitional requirements of the relevant class of permitted development when deciding an application for prior notification. It was entitled to give the applicant a formal notification of its decision on that issue. If it decided that prior approval was required, it was lawful for it to proceed to make a decision on the grant or refusal of prior approval on the same occasion, in the same decision notice.
Ground 2
It was not irrational for the Council to conclude that the proposed development was not “reasonably necessary for the purposes of agriculture” for the purposes of paragraph A of Part 6 of the GPDO, on the material available to it. In any event, the Claimant should have exercised his statutory right of appeal to the Secretary of State under section 78(1) Town and Country Planning Act 1990 (“TCPA 1990”), since it was a suitable alternative remedy, and judicial review is a remedy of last resort.
Facts
The Claimant is the owner of the Site, together with his wife. The Site is some 40 acres or 16 hectares in size. They run a farm at the Site, breeding commercial sheep. They also run a holiday business at the Site, comprising “glamping” and 3 holiday cottages.
The Statement of Facts and Grounds referred (at paragraph 8), to the Claimant's witness statement, dated 21 May 2020, in which he explained their intention to expand the farming business because the COVID-19 pandemic was threatening the viability of his tourism business. They intended to increase the organic vegetables and flower production, and to breed specialist breeds of animals, and needed a new barn to store machinery, equipment and fodder.
On 4 March 2020, the Claimant made a prior notification application for the erection of an agricultural building at the Site under paragraph A, Part 6, Schedule 2 of the GPDO. He completed a form headed:
“Herefordshire Council
Application to determine if prior approval is required for a proposed Erection, Extension or Alteration of a Building for Agricultural or Forestry Use
The Town and Country Planning (General Permitted Development)(England) Order 2015 (as amended) – Schedule 2, Part 6”
The form, which was based on the national Planning Portal's template, was available via a link on the Council's website.
In response to the questions in the form, the Claimant stated that the proposal was for a new general purpose building for storage of machinery and fodder. He provided details of its size and design. He confirmed that the Site was 40 hectares in size (he meant to say 40 acres), and had been in agricultural use for 10 years. He stated that the building was reasonably necessary for the purposes of agriculture, in order to store machinery and fodder. In response to the question “Is the proposed development designed for the purposes of agriculture?”, he ticked “Yes” and explained that “The building is a suitable size and height for storing machinery and fodder. The building has been designed to look more traditional than modern agricultural buildings and to be in keeping with the surrounding[s] particularly considering the tourism aspect of Drovers Rest at Llanycoed”. He attached a plan and illustrations of the proposed materials.
The Claimant's application was considered by Council planning officers on 9 April 2020. In the “Delegated Decision Report” (“the Report”), also dated 9 April 2020, the Site was described as follows:
“The site is an isolated farmstead in a remote and sensitive landscape. The site is some distance from the nearest designated settlement, Dorstone, which is 3.3 miles away to the east and accessed via a local road network of single width country lanes. Hay on Wye is 3.1 miles away to the west. The landscape character type is Ancient Timbered Farmlands and adjacent to High moors and Commons. Both of these are high quality and highly sensitive to change. The area contains some of the oldest field patterns in the county. This small scale, intimate landscape relies on the topography, hedgerows and tree cover.
The site comprises a farm holding which includes an agricultural field and a number of unlisted stone agricultural buildings which are arranged around a farm yard area comprising existing hardstanding area and feature the unlisted farmhouse adjoining that yard. Permission was granted for the conversion of the barns to for (sic) 3 residential holiday let cottages through P132192/F. Access is gained from an unclassified no through road which is also a bridleway.”
Under the heading “Appraisal”, the Report stated:
“As set out in Class A, Part 6 Schedule 2 above, the first test is whether any works for the erection of a building is considered to be reasonably necessary for the purposes of agriculture within that unit.
In 2015 permission was granted for the conversion of the redundant farm buildings at the site to holiday accommodation. The result of this is that currently the majority of the surrounding buildings to the application site are no longer under an agricultural use. The proposed building would therefore be separate to other buildings under an agricultural use associated with the unit.
The justification for the building is limited to details of its proposed use as a store for machinery and fodder. However, the design of the building is not functional in nature and appears overly designed for its stated agricultural purpose. Furthermore the scale of the openings and height of the eaves at the sides of the barn will limit the ability to operate or store any modern agricultural machinery.
Given the above there is insufficient evidence to satisfy officers that the building is reasonably necessary for the purposes of agriculture within the unit. It is a binary test whereby the proposal does not qualify for the proceeding permitted development rights. As such it is unnecessary to undertake the review of the proposal against A.1 (a-k) and A.2. Prior approval is therefore refused and planning permission is required.”
The Council accepted the recommendations in the Report. It concluded that there was insufficient justification for the proposed building to be considered reasonably necessary for the purposes of agriculture within the unit, and so the requirements of paragraph A, Part 6, Schedule 2 to the GPDO were not met. On 9 April 2020, it issued two decisions which respectively refused prior approval and notified the Claimant that planning permission would be required for the proposed agricultural building. The first decision notified the Claimant of his right to appeal to the Secretary of State against the refusal of prior approval.
The material parts of the first decision notice stated:
“ AGRICULTURAL AND FORESTRY BUILDINGS AND OPERATIONS
REFUSAL OF PRIOR APPROVAL
Proposed development:
Site: Llanerch Y Coed, Dorstone, Hereford HR3 6AG
Description: Prior notification for proposed new agricultural building
“THE COUNTY OF HEREFORDSHIRE DISTRICT COUNCIL hereby gives notice in pursuance of...
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