Monday, 13 December 2010

Agricultural permitted development


One of the traps for unwary planning officers is the time limit within which a local planning authority must respond to prior notification of development which is PD but over which the LPA has a potential measure of control under the GPDO. The best known cases of failure to respond in time are those which relate to telecommunications development, but a similar elephant trap awaits planning officers in relation to agricultural PD under Part 6. A recent case which illustrates the problem is the Court of Appeal decision in Murrell v. SSCLG [2010] EWCA Civ 1367 in which judgment was given on 3 December.

The appellants proposed to erect a cattle shelter on their farm, which was permitted development within Class A of Part 6. As required by the GPDO, the appellants applied to the LPA for a determination as to whether the prior approval of the authority would be required to the siting, design and external appearance of the building. The council determined that prior approval was needed and in the same decision it refused approval. An appeal against that refusal was dismissed and an application to the High Court under s.288 also failed. The matter then came before the Court of Appeal.

The main issue was whether the council's determination was made more than 28 days from the date of receipt of a valid application (the period specified in the GPDO), with the consequence that deemed permission for the development became automatic on the expiry of the 28 day period, so that the subsequent refusal of prior approval was of no legal effect.

The notice to the Council applying for a determination as to whether prior approval would be required in respect of the erection of the cattle shelter was dated 28 November 2008. The application form was date-stamped as received by the council on 1 December 2008. Receipt of the fee was noted in manuscript on the top of the form, but on the same day the council wrote to the appellants, stating that the application was invalid because it was on a superseded form and did not contain the necessary number of copies of the drawings. The letter did nevertheless assign an application number to the application.

In response to the Council’s letter, the appellants completed an application in the new form together with the requested elevations and plans and the requested number of copies. The new form was dated 4 December 2008 and was date-stamped as received by the council on 9 December. The form was endorsed on receipt by the council with the application number given in the letter of 1 December. It was also endorsed with a manuscript note referring to the payment of the fee of £70 on 1 December. The council acknowledged receipt of the new form by letter dated 9 December 2008. The letter gave the application number assigned on 1 December and stated that the application was validated on 09/12/2008, and that every effort would be made to reach a decision within the statutory 28-day period which (the letter said) would expire on 5 January 2009.

The statutory period (in accordance with paragraph A2(2)(cc) of Part 6) ends on "the expiry of 28 days following the date on which the application was received". If a valid application was made on 1 December 2008, the period expired on 29 December. The appellants heard nothing further until they received a written determination dated 31 December 2008, by which the council decided that prior approval was required and that such approval was refused, on the ground that the proposed development did not comply with a number of planning policies referred to in the determination. One of the points noted in the course of the determination was that no detailed landscaping scheme had been provided.

The appellants appealed against the council's decision on the grounds that (1) the council had not made a determination as to the need for prior approval within the statutory 28-day period and permission for the development was therefore granted within the terms of the GPDO; (2) the appellants had been given no opportunity to submit further details, in particular about landscaping, because the council had combined the decision that prior approval was needed with the decision refusing it [a point which was not subsequently pursued in the courts]; and (3) the proposed development was consistent with the relevant policies and approval should be granted.

On appeal, the Inspector accepted that use of the new standard form was not required for prior approval applications but considered that "the Council needed sufficient details to judge the design, siting and appearance of the proposed building" and had acted reasonably in requesting the additional information referred to in the letter of 1 December. She was not persuaded that it was impermissible for the council to combine in one decision its determination that prior approval was required and its refusal of approval. She observed that there had been nothing to prevent landscaping details being submitted at any time before the council made its decision. The Inspector also dismissed the appeal on the substantive ground that the development was visually unacceptable in the proposed location.

The subsequent application to the High Court failed on the substantive ground, because the judge at first instance felt that the Inspector had adequately dealt with the planning merits. He dismissed the procedural challenge (relating to the 28-day period) on the basis that it was ‘technical’.

The Court of Appeal found that the appellants' case on the procedural issue was perfectly straightforward, namely that the application received by the council on 1 December 2008 met the requirements in paragraph A2(2)(ii) and was a valid application. The council had not been entitled to require the completion of the new standard form or the submission of further material before treating the application as valid; the 28 day period specified in paragraph A2(2)(iii)(cc) therefore expired on 29 December; and the permission granted by the GPDO accrued or crystallised on the expiry of that period without a determination having been made or notified.

The Court of Appeal accepted this submission. The original application received on 1 December complied with the statutory requirements and was a valid application. The statutory 28-day period for consideration of the need for prior approval ran from that date. The mistakes made by the council in the handling of the application, and the fact that the appellants submitted a new form and further plans in accordance with the council's request, did not stop the clock running or otherwise affect the position. On the expiry of the statutory period, on 28 December, permission for the development accrued under the GPDO. The council's determination of 31 December came too late to have any legal effect.

This is a point that LPAs would do well to take on board. The prior approval procedure for Class A permitted development, as set out in paragraph A2(2) and explained in Annex E to PPG7 requires the minimum of formalities and should be simple to operate. The application for determination as to whether prior approval is required does not need to be in any particular form and does not need to be accompanied by anything more than a written description of the proposed development and of the materials to be used and a plan indicating the site, together with the required fee (see paragraph A2(2)(i) and (ii)). In practice the Court felt it would be advisable to use an up-to-date standard form and to provide the information referred to in the standard form, because that will facilitate the council's consideration of whether prior approval is needed and, if so, whether it should be given, and will minimise the need for the provision of further information at a later stage. It is not, however, mandatory to use the standard form or to provide any information beyond that specified in paragraph A2(2)(ii).

When an application is submitted, it engages a two-stage process, the nature of which is set out clearly in Annex E (see, in particular, paragraphs E12-E20). The first stage involves consideration of whether prior approval is required. If the council determines that it is not required, it should notify the applicant accordingly. If it determines that prior approval is required and notifies the applicant of the decision, it moves into the second stage, in which it has 8 weeks or such longer period as may be agreed in writing to decide whether to give approval (see article 21 of the Town and Country Planning (General Development Procedure) Order 1995, which applied to applications for approval other than those under Part 24 of Schedule 2 to the GPDO; now replaced by article 30 of the Town and Country Planning (Development Management Procedure) (England) Order 2010). The existence of a discrete second stage is underlined by the requirement in paragraph A2(2)(iv) as to the display of a site notice where the local planning authority has given notice that prior approval is required.

The council can request further details at any time, though Annex E appears to contemplate that they will generally be called for only at the second stage, after it has been determined that prior approval is required. The appellants' original application received on 1 December clearly complied with the requirements of the GPDO and was a valid application. Each of the points made in the council's letter of 1 December was a bad one. The GPDO does not require an application to be accompanied by proposed elevations or a block plan. It does require a location plan, although a location plan was in fact provided with the application. It does not require multiple copies of any documents. Since use of the new standard application form is not mandatory, the council was mistaken in stating that these were the only forms they could accept and in requesting the appellants to complete and return, in quadruplicate, the new standard form. Accordingly, the council's assertion that the application was invalid was wrong in law.

Since the application was valid, the 28 day period referred to in paragraph A2(2)(iii)(cc) began to run on 1 December, despite the council's assertion to the contrary. The Secretary of State sought to rely on the absence of any challenge at the time to the council's "decision" that the application was invalid. The GPDO, however, does not make the running of time dependent on a decision by the local planning authority to accept an application as valid. Whether there was a valid application or not is an objective question of law.

Nor was the running of time affected by the fact that the appellants complied with the council's request to submit the new forms and further information. The submission of that material did not constitute a fresh application superseding or amounting to an implied withdrawal of the original application. The new form was given the same application number as that assigned on 1 December to the original application. No further fee was paid; the new form was endorsed with a reference to the fee received with the original application. Nothing was said by the appellants to suggest that they were withdrawing the original application or that the new form superseded it. They simply sent to the council the further material requested. It was the decision of the council alone to treat the receipt of that further material on 9 December as the point at which a valid application was made and time began to run.

The judge at first instance had said that the council was entitled to ask for the additional material it requested in the letter of 1 December and that this had the effect of stopping the clock. The Court of Appeal agreed that the council was entitled to ask for further information. It was not, however, entitled to refuse to treat the application as a valid application until that further information was received. The clock carried on ticking from 1 December until the expiry of the statutory period on 29 December.

The appeal decision was quashed, and on redetermination it must clearly be allowed on the procedural ground. The appeal on the actual planning issue clearly does not fall to be determined. In point of fact, it seems to me that the appellants might have saved themselves the time and trouble of taking this case to appeal and then on to the High Court and Court of Appeal by simply proceeding with the development after the expiry of the 28-day period. This would admittedly have been a high risk strategy in the circumstances but, armed with this Court of Appeal judgment, that is precisely what a farmer faced with this situation in the future might best be advised to do.

© MARTIN H GOODALL

15 comments:

Mark said...

Hi Martin,
I have a question re. agricultural PD rights. An applicant has submitted a prior notification, which the Council responded to after the 28 day period. This is accepted by both parties. However, the issue the Council raised in their objection letter was regarding the size of the proposed building, which exceeds 465m2. As the prior approval procedure only relates to siting, design and external appearance, to which no objections were raised, does the failure of the Council to respond within 28 days mean the applicant can go ahead with building it? Or does the fact that the building does not comply with a technical requirement (Criterion A.1 (d)) mean that it is not PD and cannot be built? Thanks.

Martin H Goodall LARTPI said...

In answer to Mark’s question, if development falls outside the scope of permitted development under Part 6 (in this case because it exceeds the 465 sq m limit), then submitting prior notification of the development to the Council cannot make it permitted development, even if the Council did not respond at all. I recall a previous example of this having occurred in practice, but do not have the time at present to look it up. If the development falls foul of para A.1 (d), then it cannot be built except with express planning permission. (The usual disclaimer applies – see the Introduction to the blog.)

Anonymous said...

Hi Martin

One could understand as above that Permitted Development can not become PD if it was not PD in the first place, even if 28 days has expired before a decision is taken.

That is understandable on a detail such as a clearly defined regulation like 'within 3 kms of an airfield if the building is over 3mtrs high'. An LPA might not make a decision within 28 days which could infer to the applicant that planning has therefore crystalised and he builds his building accordingly.

Now if the LPA do decide that prior approval is required, they might fairly argue as you have said, that PD rights did not exist in the first place. But if the building has already been completed (one could only dream of such a building team working that fast) then due to the LPA's inaction which allows an applicant to consider that after 28 days have passed his PD has been allowed, is there not a case of loss on the applicant which he might claim against the council?

Where the above might be contestable to the point that an applicant might somehow be expected to possess the knowledge and understanding of planning law and realise his application was within 3 kms of an airfield, what would happen if after 28 days have passed and the LPA reject the prior notice on the grounds that they have decided that the development is 'not resonably necessary' for agriculture purposes? I do not feel there is any possible way an applicant who puts in an application for farm buildings to know if the LPA will agree the buidings are reasonably necessary and thus if the 28 days have expired, it would seem the applicant really does have justification in believing his planning permission has been agreed.

Joe Brooks

Rick said...

Sorry to bring this as a later additional comment/query but... an LPA refuse a prior notification out of time on the basis that the development is not reasonably necessary for the purposes of agriculture and because they consider (after the fact) that PD did not apply in any case because they consider the land use is not operating as a trade or business - Seems a bit "chicken and egg" to me although both the GPDO interpretation and DCP seem to follow the same line.

Martin H Goodall LARTPI said...

In answer to Rick, development is either PD under Class A of Part 6 or it is not. If it does not qualify under the rules applying to Part 6, then prior notification of the development cannot make it PD, whether the LPA responds within 28 days or not.

It is a matter of fact and of law as to whether or not development qualifies as PD under Part 6. If the LPA claims the development is not PD, this is not determinative of the point. They might be wrong. If it turns out that they are wrong, and the development is PD after all, then the 28-day rule would apply, effective from the date of the original prior notification (subject to a five-year deadline for commencement of the development).

There are various ways in which the view of the LPA that the development in question is not PD could be challenged. Applying to the High Court for a declaration (as happened in the reported case) is cumbersome and expensive. An application for an LDC would be a much better alternative, and a refusal by the LPA to issue an LDC could be appealed to the Planning Inspectorate.

If the farmer is very confident of his position, he could just get on with the development, but this would be a high risk strategy, with the likelihood of enforcement action being attempted by the LPA.

Anonymous said...

Hi, my council has applied to High Court on this very issue. Several years after they failed to respond within 28 days they are questioning 'reasonable necessity'. It appears to me that Annex E para 14 puts the duty of that test on the LPA at an early stage. The intimation is that if they consider it unnecessary then they should declare it so and return the fee? If they keep the fee and especially if they declare it valid then surely that's enough. How else would para 15 be able to say that the principle of development can no longer be for consideration? How else could a person appeal it? or even know they have given it the nod if they simply stay silent after receipt. Regards, Anne

Martin H Goodall LARTPI said...

This certainly sounds rather odd, but I assume that the Council is in fact involved in enforcement action, and is going to the High Court having lost in a section 174 appeal. I think I can see where the Council is coming from; if the development did not meet the ‘reasonably necessary’ test, then it wasn’t PD at all, and the 28-day rule simply didn’t apply. So the Council presumably took the view that the development was a breach of planning control.

Anonymous said...

Hi Martin,

I have been struggling all year with this case I have been helping on. As put in an earlier post by Anne, Annexe E - E14 seems quite clear cut

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 (see paragraphs 3.5 and 3.6 above). 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.

This seems to me to mean that an LPA has those precious 28 days in which to decide whether a notification is PD or not and if they do not make a decision in that time, then they cannot come back later and take away the permission that has effectively crystallised.

It is the last sentence that appears to sum it up but as always, appreciate your contemplations :)

Regards, Lioel

Martin H Goodall LARTPI said...

I am sorry, Lionel, but you are wrong. If a development is not permitted development within the parameters of Part 6, then giving prior notice of the development cannot make it so. No permisison or permitted development righst have ‘crystallised’, as you put it. The 28-day rule has no application where proposed development is not Permitted Development in any event. The fact that this may only emerge later makes absolutely no difference. There is no time limit for determining whether or not the development is Permitted Development; no formal determination is required – it is simply a matter of law and of fact, irrespective of when it emerges that it is not in fact PD. The LPA would be entirely within their rights in such a case to serve an enforcement notice at any time up to 4 years after the development has been substantially completed (subject to the usual consideration of expediency and other material considerations).

Anonymous said...

Many thanks Martin for your timely reply.

I am never sure how precisely one interprets the law so I trust I am not being too pedantic. It might also be that a different facet of the law applies entirely.

I follow your view that if a proposal does not meet the conditions laid out as agricultural permitted development, then it cannot be considered as such. A proposal for a helter-skelter say, could never be considered agricultural development. But if such a proposal is submitted and an LPA fail to adjudicate within the 28 day timeframe, what is the legal position then?

E.14 of Annexe E appears to say that the LPA would be responsible for making a determination within 28 days and to have considered whether such a proposal meets all of the conditions. If they do not issue a decision notice, I agree, it still does not necessarily mean it benefits as being agricultural permitted development. But has an LPA failed in its duty to perform that what it is responsible for? Namely, to verify within 28 days whether a prior notification meets permitted development rights and conditions.

It does appear that E.14 requires the LPA to make such verification within the allotted time frame. If they do not and it turns out later that the LPA realise there is an error in planning terms, are they now somehow responsible for having been negligent in carrying out their duties as laid down by E.14? That sort of issue is beyond my knowledge but hopefully it provokes some kind of thought process hitherto un-considered.

In the matter of a 'helter-skelter' it is easier to judge whether a development benefits from agricultural PD or not. It does not escape one from the more complex issue of personal judgement of what is and isn't ‘reasonably necessary’ for agriculture. One would always feel that an appointed independent agricultural consultant/advisor would give the casting vote on such an issue.

Kind regards
Lionel


Kind regards
Lionel

Martin H Goodall LARTPI said...

I must make it clear that in the case predicated by Lionel, there is no 28-day period in which the LPA has to do anything. If, as a matter of law and/or fact, the development in question does not fall within the parameters of Part 6 (for example if it is not genuinely ‘required’ for the purpose of agriculture within the holding) then the notice or application could simply be ignored. In practice, it would be advisable for the LPA to make it clear that they do not agree that the proposed development is Permitted Development within Part 6, but no legal consequences flow from their failure to do so, within 28 days or at all. Annex E to PPG7 does not have the force of law; it is simply ministerial policy guidance, no more than that.

If it turns out that the development does fall within Part 6, then the failure of the LPA to respond to a valid notice (complete with the correct fee) within 28 days would mean that the developer would then have the right to carry out the Permitted Development at any time within 5 years. But if the development does not meet the criteria set out in Part 6, it is not PD and cannot be carried out as such, whether the LPA responded within 28 days, after more than 28 days or did not respond at all.

There may be cases where it only becomes clear some time later that the development in question was not in fact PD under Part 6. Even here, the LPA is not bound by its previous conduct, even if it purported to approve the siting and design of the development. This would give rise to other considerations, including a possible complaint of maladministration, and it might not be ‘expedient’ (in terms of section 172) to take enforcement action. But the fact remains that the development would be unlawful.

Anonymous said...

Thank you once again Martin for imparting your wisdom. It is interesting to note your comment in regards to the weight of Annexe E as well as the maladministration prospects.

With kind regards

Lionel

Anonymous said...

Hi Martin,
The after-the-event action by LPA is the crux of the Crossland case. Many documents are accessible via www.qfpl.freeuk.com and the nightmare of High Court 'taking a view' is exemplified by this case as 'reasonable necessity' definition can be a fanciful concept if LPA want to cover their handling errors.
Regards Annie

Anonymous said...

Having read the websites expert report in the crosland case, I can not imagine a clearer hatchet job. Could the LPA be investigated for maladministration if they have requested a bias report?

Martin H Goodall LARTPI said...

I really can’t comment on this case myself, as I don’t feel that I know enough about the facts. A High Court challenge against the appeal decision was firmly rejected by the court (rightly or wrongly – I don’t propose to make any pronouncement on that), and this would make it difficult to complain of maladministration on the part of the LPA. The outcome is no doubt very disappointing for the losing party but the system does sometimes produce an adverse outcome which might well seem unfair or just plain wrong. These things happen.