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
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7 comments:
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.
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.
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.
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.
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?
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.
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.
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