Tuesday, 27 November 2012

Agricultural buildings – the prior notification procedure


If you follow comments as they are posted in this blog, you may be aware of a recent discussion on the prior notification procedure in relation to Permitted Development under Part 6 (Class A) of the Second Schedule to the General Permitted Development Order.

More than one correspondent has queried the position where prior notification is given to the local planning authority, but they decide (either then or later) that the development is not in fact PD. Is the LPA under an obligation to respond within 28 days in these circumstances, and what is the legal effect if they do not do so?

The essential point is that if the development falls outside the parameters of Part 6, then it is not Permitted Development. It may exceed the size limit, or the height limit or the distance from the metalled part of a classified road (which includes a ‘C’ class road, incidentally). It might not in any event be reasonably necessary for the purposes of agriculture within that unit. In any such case, it makes no difference when the LPA responds to the notification or whether they do so at all. Giving prior notification cannot make a development PD if it simply doesn’t qualify within Part 6. Such a development cannot be built except with express planning permission.

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, and the payment of the correct fee (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 a case I reported late in 2010) 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.

Two correspondents have drawn attention to Annex E of PPG7 (which remains extant, despite the recent bonfire of ministerial planning advice). The advice suggests that in the course of dealing with the prior notification procedure the LPA should verify that the intended development does benefit from permitted development rights, and does not require a planning application. It points out that there is no scope to extend the 28-day determination procedure. A local planning authority will therefore need to take a view during the initial stage as to whether Part 6 rights apply.

However, the crucial point is that if the development in question is not in fact Permitted Development at all, then there is no 28-day period in which the LPA has to do anything. If, as a matter of fact and law, the development in question does not fall within the parameters of Part 6 (for example if it is not reasonably necessary 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 in such circumstances. But the fact remains that the development would be unlawful until four years have passed since its substantial completion.

© MARTIN H GOODALL

15 comments:

Stacey said...

Excellent article Martin, as usual. Note s.73(1) of 2010 Hab Regs imposes restriction on schemes permitted under GDPO if it is to have likely significant effect on European site. Convoluted process to form screening opinion, but can have effect of further restricting Agricultural PD. Issue for LPA where I work and matter of air quality arising from traffic movements on Special Protection Area.

Martin H Goodall LARTPI said...

Stacey’s comment serves as a reminder that (as professional readers will already be aware), where an environmental impact assessment is required, development which would otherwise have been permitted development cannot be carried out as PD, and a full planning application (supported by an EIA) will be required.

Anonymous said...

Really good comment, but another issue that might arise if an LPA approved siting etc for something that turned out not to be PD is 'Legitimate Expectation' - as in Reprotech. The farmer is entitled to expect the LPA to have a better grasp of the scope of PD than he or his building-designer have.

Martin H Goodall LARTPI said...

Reprotech established that the doctrine of estoppel does not apply in the context of development management. 'Legitimate expectation' could perhaps still be called in aid, but it is a slippery concept, and its application to this type of situation is by no means certain.

Anonymous said...

Sorry for the late comment Martin, but, are there specific 'tests' as to "Reasonably necessary for the purposes of agriculture" I'm sure that would/should include ancillary/incidental activities or uses - farm office, staff rest area, toilet/wash, storage (both general and specific that provide some useful purpose to the management of the land both current and future 'planned for' agricultural uses? Would, for example, a general multi purpose/functional building qualify as 'reasonably necessary' especially if that 'unit' is remote from any other provision that the 'farmer' may have elsewhere. Should planners not limit their concerns to the issues of siting design and appearance?

Martin H Goodall LARTPI said...

I am not personally aware of any specific criteria for meeting the “reasonably necessary” test. I see no reason in principle why ancillary facilities of the type referred to should not be capable of meeting this test. The essential point is that the building must be on the same agricultural holding and it must be required for agriculture, rather than for some non-agricultural purpose. In practice, I would suggest that it is the genuine agricultural connection, rather than any argument over how ‘necessary’ it is that is likely to be the determining factor in these cases. However, if the need for the building does become an issue, then I agree that factors such as those mentioned would be relevant. Clearly siting and design are the points which really ought to be of concern to the planners. The question as to whether the building is reasonably necessary for agriculture on the holding really only arises where there is a doubt as to whether it is a genuinely agricultural building or whether the agricultural connection is simply being used as an excuse to build what will in reality be a non-agricultural building. I have said before that I believe we should do away with Part 6 altogether and bring all agricultural buildings within the normal development management regime.

Anonymous said...

I have used the Ag PD notification procedure more than once myself but I think that life would be better without it. Large commercial farms don't need or deserve this, as their buildings are so big and ugly, whilst the smaller farms often have a mixed used (private, equestrian) element that gives rise to abuse and makes the planners understandably suspicious. Many places called "something farm" are no such thing. Many genuine farmers operate fragmented holdings made up of different fields here there and everywhere. There are so many possible cases where it is unclear whether the proposal is or isn't PD, an example being a building for mixed agricultural and forestry use. Some LPAs seem to treat these notifications exactly as planning applications, requiring them to be validated, and saying that the notification has been "applied for." Yet a notification is entirely unilateral. I have even seen instances of such notifications being "withdrawn." All of this makes things more difficult for well-intentioned farmers and rural land-managers and sets up an atmosphere of mistrust. The only things that should matter are the usual ones such as whether the private reasons for wanting to do the development outweigh any harmful effects on neighbours, the landscape, etc., and it is a waste of time (and overbearing and prescriptive) for central government to suppose that any rules it may make, especially such out of date ones, are better than local consideration of individual cases. Since much of this is about what the countryside looks like, that local consideration should be supportive of those rural businesses that do the most to keep the countryside looking pretty.

Anonymous said...

Hello Martin, we have recently applied for a agricultural building for the storage of machinery and fodder, we sought pre-application advice from the LPA which we paid for, we accorded our plans to comply with the recommendations of the delegated officer, he wrote his delegated report 27 days into my application and said we did not need prior approval, however his superior officer decided that we did not have a valid application. point 1 I rent some land on short tenancy agreement for two years (renewable of course) and they described my business as a hobby even though we are registered with the tax office and pay taxes, they have dug there heels in and will not budge, not sure what to do?...Thanks

Martin H Goodall LARTPI said...

The answer to the anonymous query of 4/8/14 is that it entirely depends whether there is evidence of a genuine agricultural need or not. It is not entirely clear whether the LPA has appropriately responded to this prior notification. If they have not properly given notice within the requisite period that either prior approval will be required or that it will not be required, then the right to proceed with development may have crystallised by default.

In similar cases in the past, I have made an application for a Lawful Development Certificate under section 192 (for a 'CLOPUD'). If refused by the LPA, the success of an appeal under section 195 will depend on satisfying the Inspector that there is reasonable agricultural need for the proposed building. Whilst it may not be essential to prove the commercial viability of the agricultural business, it will clearly have to be shown that it is being carried on as more than a hobby, and that the requirements of the agricultural business have created a reasonable need for this building.

Kevin said...

Hi. Sorry to resurrect an old post, but...

Do you think that breach of a condition (specifically Sch. 2, part 6, E.2(1)(a) "the developer must, before beginning the development, apply to the local planning authority...") irrevocably takes the construction outside the scope of PD?

It seems reasonable that a failure to comply with the substantive requirements in E.1 (not a dwelling, height limit, etc) puts the development outside allowed PD rights, but it's not clear to me whether, for example, starting development before the 28-day period is intended to do so.

In my case the authority refused to make a determination on the basis that I had erected a partial foundation before submitting my notice, and the development was therefore unlawful (which I don't contest), and could therefore never be PD (which I do). I offered to remove the offending foundation and provide evidence that I had done so (and, in fact, I have done so). However the authority arguued that it was too late -- once they had seen that development had started, it would have been unlawful for them to grant a determination.

It seems strange to me, and surely unintentional, that full planning approval can be granted retrospectively, yet a PD determination cannot.

Comments welcome.
Thanks.



Martin H Goodall LARTPI said...

As Kevin acknowledges (24 September), the rules relating to permitted development are very strict. Where a prior approval application (or a prior notification) is required before development commences, ‘jumping the gun’ by beginning the development at any time before the LPA has given their prior approval or indicated that their prior approval will not be required (or, alternatively before the expiry of the relevant determination period without the application being determined) renders the whole of the development unlawful. In those circumstances, only a full planning application seeking retrospective planning permission would enable the development to be regularised. A retrospective prior approval application is not permissible.

However, if the breach of planning control is remedied by the complete removal of the offending development, and the restoration of the land to its previous use, it seems to me that one would then be starting with a clean sheet. But this would require a fresh prior approval application. The previous prior approval application was clearly ineffective and must be regarded as no longer being a live application. So the LPA is correct in saying that it is now too late for them to issue a determination in respect of that application, but there is nothing to prevent a fresh application being made, subject to the previous breach of planning control having been wholly remedied before that further application is made.

Kevin said...

Hi Martin. Thanks for your reply. This matter is moot now, since I did in fact clear the site and submit a new notice. I'm also aware that there are planning appeal decisions that support the view you outline.

And yet...

It isn't clear to me that starting development early extinguishes PD rights any more than any other non-compliance with the PD criteria. So, for example, there would be no PD rights if the building was not (for agricultural purposes) "reasonably necessary" or was, in fact, a dwelling, etc. It seems to me that the judgement in Murrell presupposes a rather onerous burden on the planners so far as the notice period is concerned -- they won't lightly be able to wriggle out of their obligation to rule in 28-days. But if you (and the Inspectors) are right, then it seems that the planners potentially have an escape route for some instances (other than just mine) where they fail to make a determination in the allowed time.

In my case the planners argued that they had no obligation to decide in 28 days, because there were no PD rights to decide on, because I had started building. But if that's correct, I can't see why they wouldn't be able to take the same line with other non-compliances with PD criteria. So in Murrell, the planners might have been able to argue that Mr Murrell had no PD rights to rule on in 28 days because his cow shed was not "reasonably necessary" for its claimed purpose. Whether that was true or not could have been the subject of an appeal, I guess, but I'm surprised that they did not use this argument, if it had been open to them. It would have got them out of a sticky situation, even if they had eventually lost the appeal.

As I understand it, the purpose of the 28-day notice period is precisely to rule on whether a proposal qualifies for PD. However, it's one thing to rule that a proposal isn't PD, but quite another to fail to make a ruling at all, because it isn't PD.

It seems to me that the legislation itself creates a circularity: whether something is PD or not is not simply a substantive matter of construction, siting, and external appearance, but tied up with the very process of deciding whether it is PD.

As I said, I no longer have a dog in this pile, so I'm just interested in whether the legislation is ambiguous, or I'm just over-reading it.

Best wishes
Kevin

Martin H Goodall LARTPI said...

I seem previously to have missed Kevin’s further comment of 30 September.

Notwithstanding Kevin’s contentions, the fact remains that if a particular development does not qualify as PD (for whatever reason), then the 28-day rule, under Part 6, simply doesn’t apply. So I confirm Kevin’s point that, in the case of Part 6, if the building is not “reasonably required” for the purposes of agriculture on the holding, the LPA is not obliged to respond to the prior notification within 28 days or at all. However, ministerial guidance does advise that the LPA ought to notify the applicant of their view.

I have pointed out before that a failure or refusal by the LPA to respond to the prior notification under Part 6 within 28 days is risky, because if it turns out that they were objectively wrong about the disqualification of the PD, the 28-day rule will have operated in the meantime. An LPA would therefore be well advised to respond to a prior notification within the 28-day period, but making it clear at the same time that they consider that the proposed development is not PD in any event. The matter could then be tested on appeal, if necessary.

Ian Firth said...

Hi Martin,

I just ordered your new book and look forward to its arrival before Christmas (!) - It is of course possible that this subject is covered within your book but, in the interim, here is my quandary:

I am frequently finding local authorities in our region using the prior approval process to seek to 'refuse' permitted development applications - which have been sought under the 28 day prior notification process. Let's presume for the moment that I am confident that the building(s) we seek fully comply with Part 6 A(a) and the conditions thereof. (By default we always submit scaled drawings and decent quality site plans and current forms (written description of the proposed development) together with a covering letter explaining the need for the building and its intended agricultural use. However we tend to operate in Article 2(4) areas and local authorities seem to like to trigger the prior approval process, by default, apparently in an effort to restrict that which I believe is perfectly acceptable in law / GPD(E)O 2015 terms. (It may also be the case that they do this in order to give themselves more time in which to consider these applications - which I consider is definitely a factor considering that we take pride in providing detailed information in every case!).

My question to you is this:

What does the requirement for prior approval entitle the local planning authority to introduce into its determination of Part 6 Class A permitted development proposals?

To put this in context, following triggering the requirement for prior approval within 28 days of application (and additional incidental information being requested) we regularly see comments from planning officers relating to 'the possible effect of the proposed building on the character and appearance of the local area', 'effect on nearby listed buildings / heritage assets and the like', possible effects on flooding, traffic generation, possible effect of lighting (even if none is present in the submitted scheme), etc. etc.

We also see officers trying to determine PD applications on the basis of their (often out of date) local planning policies...

In your opinion am I correct in my interpretation that 'permitted development' is just that: Permitted - Development?

My opinion is that prior approval is there only to verify that the proposed building is compliant with the conditions of Part 6 - Class A, and that the building is reasonably necessary for the purposes of agriculture. Am I wrong? I can't seem to see any guidance on the subject - either in statute or other accessible locations...

Your view / interpretation would be much appreciated.

I&O

Martin H Goodall LARTPI said...

In answer to Ian Firth (20 December), I should make it clear that my book does not deal with agricultural development under Part 6 of the Second Schedule. The subject matter of the book is permitted changes of use, primarily under Part 3, but also under Parts 4 and 5.

Operational development (e.g. under Part 6) is not covered by this book, except to the extent that it is associated with a permitted change of use under Part 3 (or Part 4), and which is also permitted by the relevant Class of development in Part 3 (or Part 4).

Chapter 15 of the book, on the other hand, may be of assistance. It deals with the 56-day rule, but the 28-day rule under Part 6 operates in a very similar manner, and the case of Murrell cited in Chapter 15 was in fact concerned with the 28-day rule under Part 6.

There is, however, one important exception. Under Part 6, notification of the LPA’s decision as to whether their consent to the siting and/or design of the proposed development will be required does not have to be given or received within the 28-day period, provided that the decision itself was taken within that period. The 28-day rule under paragraph A.2(2)(iii)(cc) applies only to the LPA “making any determination as to whether such approval is required or notifying the applicant of the determination.” In other words, provided the LPA does one of these two things within the 28-day period, they have complied with the rule. Notification of the decision is only one of the two alternatives. I am not the only commentator who has drawn attention to this wording in Part 6.

Turning to the question that Ian has posed, the determination is as to whether or not the LPA wishes to have the opportunity of approving siting and design, although I have seen decisions which purport to refuse approval at the same time as determining that approval will be required.

The safest course in the scenario described by Ian is to run an appeal against the LPA's purported decision, although there my be circumstances in which the purported decision does not in fact amount to a determination as to whether approval of siting and/or design will be required. Such cases are likely to be rare but, even here, a prudent farmer should take proper professional advice before proceeding with the development.