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  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but on the same day the council wrote to the appellants, stating that the application was invalid because it was on a superseded form and did not contain the necessary number of copies of the drawings.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