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