R (Murrell and another) v Secretary of State for Communities & Local Government and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lady Justice Smith,Lord Justice Rix |
| Judgment Date | 03 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1367 |
| Docket Number | Case No: C1/2010/0934 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 December 2010 |
[2010] EWCA Civ 1367
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Beatson
Before : Lord Justice Rix
Lady Justice Smith
and
Lord Justice Richards
Case No: C1/2010/0934
Mr Niall Blackie (solicitor-advocate of FBC Manby Bowdler LLP) for the Appellants
Mr Daniel Kolinsky (instructed by The Treasury Solicitor) for the Secretary of State
The Second Respondent did not appear on the appeal or in the court below
Hearing date : 18 November 2010
Lord Justice Richards :
The appellants run a farm at South Walsham in Norfolk. They proposed to erect a cattle shelter on the farm, which constituted development requiring planning permission. The development was permitted by Class A of Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (“the GPDO”), subject, so far as material, to the conditions set out in paragraph A2(2) of Part 6. Those conditions require the developer to apply to the local planning authority for a determination as to whether the prior approval of the authority is required to the siting, design and external appearance of the building. The appellants applied to the local planning authority, Broadland District Council (“the council”), for such a determination. The council determined that prior approval was needed and in the same decision it refused approval. A planning inspector appointed by the Secretary of State dismissed an appeal. A challenge under s.288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to the inspector's decision was dismissed by Beatson J. An appeal against his order is now brought to this court.
The first issue on the appeal is procedural, namely whether the council's determination was made more than 28 days from the date of receipt of a valid application (the period specified in paragraph A2(2)), with the consequence that permission for the development accrued on the expiry of the 28 day period and the subsequent refusal of prior approval was of no legal effect. Permission to appeal on that ground was granted by Beatson J.
The second issue concerns the correct approach when determining whether prior approval should be given. It involves consideration of the permitted development right under the GPDO and of the guidance in Annex E, Permitted Development Rights for Agriculture and Forestry, to Planning Policy Guidance 7 (“PPG7”). The appellants' contention is that the inspector failed to take into account Annex E or misinterpreted it, and that she erred by approaching the case as if it were an ordinary application for planning permission as opposed to an application for prior approval in which the principle of development was not in issue. Permission to appeal on the grounds relevant to that issue was granted by Sullivan LJ, on the basis that they raise an important point of principle as to the ambit of the GPDO permission for agricultural buildings.
The legislative framework
The general rule laid down by s.57(1) of the Town and Country Planning Act 1990 (“the 1990 Act”) is that planning permission is required for the carrying out of any development of land. By s.58(1)(a), planning permission may be granted by a development order made by the Secretary of State pursuant to s.59. By s.60(1) and (2), 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, including conditions as to prior approval.
The GPDO is the principal development order made pursuant to those powers. It provides in article 3:
“3.(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 so granted is subject to any relevant exception, limitation or condition specified in Schedule 2.”
Part 6 of Schedule 2 relates to agricultural buildings and operations. The relevant class of development within Part 6 is Class A which reads, so far as material:
“ 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 … of a building; …
which are reasonably necessary for the purposes of agriculture within that unit.”
Such permission is subject to the exceptions in paragraph A1 (e.g. that development is not permitted by Class A if the ground area which would be covered by the building would exceed 465 square metres) and to conditions contained in paragraph A2. The relevant conditions are these:
“A2(2) Subject to paragraph (3), development consisting of –
(a) the erection … of a building; …
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, design and external appearance of the building …;
(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 prior approval is required, the giving of such approval;
(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.
(iv) (aa) where the local planning authority give the applicant notice that such prior approval is required the applicant shall display a site notice by site display on or near the land on which the proposed development is to be carried out, leaving the notice in position for not less than 21 days in the period of 28 days from the date on which the local planning authority gave the notice to the applicant ….”
Save for the matters set out in para A2(2)(i) and (ii), there are no specific requirements as to the form of an application. At the material time the GPDO provided by Article 4E for applications for planning permission to be made in a standard form published by the Secretary of State, but those provisions did not apply to applications for a determination as to whether prior approval is required: see, now, article 6 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 which is to similar effect. The Secretary of State has in fact published a model form for use in the making of applications for a determination as to whether prior approval is required, but use of the form is not mandatory: that is apparent from the terms of the GPDO itself and is spelled out in para 10 of Circular 02/2008 issued by the Department for Communities and Local Government. The fee payable for an application is prescribed by separate regulations.
Annex E to PPG7
National planning policy guidance concerning the prior approvals process in respect of Class A permitted development is to be found in Annex E to PPG7, which is very helpful for the light it casts on the operation of the prior approvals process and to which a decision-maker should have regard as a material consideration when considering whether prior approval is required and whether it should be given. The following passages, under the main heading “The determination procedure”, are of particular relevance to this case:
“ Introduction
E12. In certain cases, the permitted development rights for development on agricultural units of 5 hectares or more and 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 permission is not required by virtue of the General Permitted Development Order. They should also use it to verify that the intended development does benefit from permitted development rights, and does not require a planning application …. There is no scope to extend the 28 day determination procedure, nor should the discretionary second stage concerning the approval of certain details be triggered for irrelevant reasons. A local planning authority will therefore need to take a view during the initial stage as to whether Part 6 rights apply.
E15. Provided all the General Permitted Development Order requirements are met, the principle of whether the development should be permitted is not...
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