Can an LPA override a prior approval ?

My colleagues and I in Keystone Law’s planning law team are currently wrestling with a point that has arisen in two separate cases that have come across our desks recently, and which has also been raised by a correspondent in this blog.

The question can be briefly summarised, but the answer is not quite so simple. The question is this - Where prior approval has been sought and given in respect of the specified matters under the relevant Class of permitted development in Part 3 of the Second Schedule to the GPDO, is it open to the LPA (after having given that prior approval) to assert subsequently that the proposed development is not in fact permitted development by reason of its not meeting the qualifying criteria for that Class of development?

A short time ago, I set out my preliminary view on this point in a response to a comment posted under my recent blog post on the ‘convertibility’ of agricultural buildings in light of the judgment in Hibbitt v. SSCLG . It is an issue that several local planning authorities seem to have latched onto following that judgment. However, a discussion with my colleague Ben Garbett has convinced me that the legal position may not be so straightforward as it originally seemed to be.

There is no doubt as to the position where the legal status of the land or building has changed since the prior approval was given, for example by reason of the subsequent listing of the building under section 1 of the Listed Buildings Act, or designation of the area in which the site is located as a conservation area. The decision of the Court of Appeal in R (Orange Personal Communications Services Ltd) v Islington LBC [2006] EWCA Civ 157 made it clear that once prior approval has been given, this has the effect of ‘crystalising’ the planning permission granted by Article 3(1) of the GPDO, so that any subsequent change in the status of the land cannot affect the right to carry out the permitted development, even if that development does not commence until after the status of the land has changed by reason of a designation that would otherwise disqualify it from permitted development.

However, my initial view was that the Orange case does not assist a developer where the alleged disqualification of the site from PD does not arise from a subsequent change in its status or designation, but was an existing factor that would have disqualified the site from PD even before the prior approval application was determined. I originally took the view that a grant of prior approval cannot be relied upon in these circumstances, because if the site does not in fact qualify for permitted development then a purported prior approval by the LPA of those matters specified for prior approval cannot overcome that disqualification.

The basis for my earlier opinion was that the actual planning permission for the development is granted by Article 3(1) of the GPDO and it is this permission that is dependent on the qualifications in the GPDO being met. The LPA is not itself granting planning permission, nor in giving its prior approval is it approving the development as such; it is merely approving the submitted details in respect of those matters that specifically require prior approval. It follows (or so I originally thought) that the giving of prior approval could not overcome the fact that the development is in any event disqualified from being PD. However, I have now come round to the view that that there may be other factors to consider.

It seems clear that in relation to Part 3 (and also to Parts 6 and 16) of the Second Schedule to the GPDO, planning practice guidance, as well as certain judicial dicta, both indicate that there is at least an implied requirement that the LPA, in dealing with a prior approval application, should also consider whether the proposed development does in fact qualify as permitted development, or whether it is disqualified or precluded for any reason. I will discuss this below, but if this proposition is correct, the argument is that after it gives its prior approval it is not then open to the LPA to claim that the proposed development does not in fact qualify as PD, so as to prevent the development being carried out.

Even the wording of the relevant statutory provisions seems to support this alternative view. So, for example, in Part 3, paragraph W(3) provides that the local planning authority may refuse an application where, in the opinion of the authority, the proposed development does not comply with, or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with, any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question.

There is a clear implication in paragraph W(3) that the LPA will consider not only the specific matters requiring prior approval but will also consider whether the proposed development complies with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. It is therefore arguable that in giving its prior approval in respect of the prescribed matters, the LPA thereby also accepts that the proposed development complies with the relevant conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, because paragraph W(3) provides that the LPA may refuse the prior approval application where these qualifications are not met, and there must be a reasonable expectation that the authority will necessarily do so in those circumstances. Ergo, the prior approval also has the effect of confirming that the proposed development does qualify as permitted development, in compliance with the applicable conditions, limitations and restrictions.

I am sure I am not alone in finding the government’s online Planning Practice Guidance next to impossible to navigate, which renders it practically useless. So far as I have been able to ascertain, current practice guidance does not advise LPAs as to how they should consider and determine prior approval applications, and so in researching this issue I was driven back on previous ministerial policy guidance (now withdrawn) that dealt with this type of development. For example, paragraph E.14 in Annex E to the former PPG7 (which was not finally cancelled until the publication of the online PPG in March 2014) advised in relation to prior notification applications under Part 6 that in determining whether their prior approval would be required to the siting or design of the proposed development, local planning authorities should also use the determination procedure to verify that the intended development does benefit from permitted development rights. As I have indicated, I have been unable to ascertain whether this advice has been carried over to the online PPG, but it seems to me that the principles expounded in Annex E to PPG7 are still applicable (notwithstanding that they no longer have the ministerial imprimatur). If so, then this is a further example of the implication mentioned above that the LPA’s prior approval (or a determination that their prior approval will not be required) necessarily involves acceptance that the development does qualify as permitted development.

Off-hand, I can’t recall whether there was a circular on prior approvals under Part 3 before the great bonfire of ministerial guidance conducted by Eric Pickles, and I no longer have the 13-page list of cancelled circulars that was issued when the online PPG was launched in March 2014. If any reader is aware of any past or present ministerial guidance on the determination of prior approval applications (other than that in Annex E of PPG7 mentioned above), I would be grateful to have my attention drawn to it.

Further support for the proposition put forward above is to be derived from the judgment of May J in R. v. Sevenoaks DC ex p Palley [1994] E.G. 148 (C.S.).

This was a case that concerned development that was allegedly permitted agricultural development under Part 6. The LPA had confirmed that their prior approval of siting and design would not be required (and so, it was argued, had accepted as matter of law and of fact that the development in question qualified as permitted development). However, a neighbour successfully applied to the High Court to quash that determination on the grounds that the development did not in fact qualify as PD under Part 6. The case turned on whether the site qualified as “agricultural land”, but the Court first had to consider whether this question was a matter of precedent fact or whether it was a question for consideration by the LPA in determining whether their prior approval would be required.

The parties agreed that the question whether the relevant land is “agricultural land” [and so whether it qualifies for PD under Part 6] has to be considered before the development is carried out. Counsel for the LPA submitted that the same question did not strictly have to be answered at the time a determination was made by the LPA. In May J’s judgment, however, it was clear that the question does have to be asked and answered at the time of determination. If there is a material delay between the determination and the works the question may have to be considered again and may not in any particular case have the same answer. [This implied that a subsequent change of circumstances might disqualify the development as PD, but this judgment was long before the Court of Appeal decision in Orange.]

The definition of “agricultural land” includes that the land is “in use for agriculture” and that it is so used “for the purposes of a trade or business.” Counsel for the neighbouring objector submitted that these are matters of precedent fact such that the Court can make a factual determination on the evidence and is not limited to reviewing the LPA’s factual determinations on Wednesbury grounds.

He referred first to a passage in R. v. Home Secretary ex p. Khawaja [1984] A.C. 74 at 97, in the speech of Lord Fraser of Tullybelton, who had opined (in agreement with Lord Bridge and Lord Scarman) that whether a person was an illegal immigrant was “a precedent fact which has to be established”. It was not enough that the immigration officer reasonably believed him to be an illegal entrant if the evidence did not justify his belief. Accordingly, the duty of the court must go beyond inquiring only whether he had reasonable grounds for his belief. [The House of Lords nevertheless recognised that this decision was at variance with a train of decisions culminating in R. v. Home Secretary ex p. Zamir [1980] A.C. 930 to the contrary effect, namely that that the function of the court was only to see whether there were reasonable grounds for the decision of the immigration officer.]

May J therefore turned to R v. SSE ex p. Davies (1991) P. & C. R. 487, where the Court of Appeal held that the question whether a person had an interest in land within section 88 of the Town and Country Planning Act 1971 was a question going to the jurisdiction of the Secretary of State to hear an appeal. The Court was therefore entitled to determine the question itself and was not limited to reviewing the decision of the Secretary of State on grounds of perversity or unreasonableness. Neill LJ said (at 492): “It seems to me that, in such circumstances, where the decison impugned involves a question as to the jurisdiction of the decision maker, and where the primary facts are contained in documents and do not involve any questions of credibility or policy, the Court should look at the matter afresh and make up its own mind.”

Reference was also made to R v. Oldham MBC ex p. Garlick [1993] A.C. 509, a case which turned on whether an applicant for housing (on grounds of homelessness) did or did not have the mental capacity to make that application. Lord Griffiths said (at page 520) that it was understandable to regard this as a question of fact to be decided by the Court. But if the relevant Act only imposed a duty on the housing authority in respect of applicants of sufficient mental capacity to act upon the offer of accommodation, then it seemed to him that Parliament must have intended the housing authority to evaluate the capacity of the applicant. It followed that the authority’s finding could only be challenged on judicial review if it could be shown to be Wednesbury unreasonable.

In R. v. South Hams DC ex p. Gibb (The Times June 8th 1994), the Court of Appeal had to consider whether applicants were gypsies within the meaning of the Caravan Sites Act 1968. Neill LJ held that the possibility of applying the Khawaja principle in a case such as that before the Court had been rendered impossible, certainly in the Court of Appeal, by the House of Lords decision in ex p. Garlick. Neill LJ was satisfied that Parliament must have intended that, if as a matter of law local authorities had applied the right test, the question whether particular persons or groups of persons were, as a matter of fact, gypsies was pre-eminently a matter for the authorities concerned.

In any matter which a public authority has to decide, there will always be initial facts to be established. It was, in May J’s view, clear that the mere fact that a particular fact or group of facts is logically the first consideration does not constitute it as a “precedent fact”. The passage relied upon by counsel for the neighbouring objector in ex p. Davies referring to primary facts contained in documents and not involving any questions of credibility or policy suggested that the Court was unlikely to look afresh at matters which require detailed investigation and factual judgment. The passage quoted above from ex p. Garlick said that the Court must look at the intention of Parliament, and that where very immediate investigations are needed to make the system work, the likely conclusion is that they can only be carried out by the authorities concerned. In his judgment, that applied to the instant case. A question whether land is in use for agriculture and so used for the purposes of a trade or business is not likely to be a straightforward paper enquiry. It may require site inspections and consideration of a range of facts and perhaps documents by suitably qualified people. In his judgment, it was plain that the legislative intention was that these matters should be considered (subject to any question of perversity) by the planning authority alone.

In the event, May J found that the LPA’s determination that the site in question was agricultural land was legally flawed (due to only the most perfunctory consideration having been given to the site’s actual status), and it was for this reason that their determination was quashed. It is clear, however, that absent this legal flaw, it was for the LPA to determine, as a matter of fact and degree, whether the land in question was “agricultural land” so as to qualify for PD under Part 6, as part of their determination as to whether their prior approval would be be required in repect of the siting and design of the proposed development. As noted above, this would have reflected the ministerial guidance in Annex E of PPG7 [or the equivalent guidance that would have been applicable in 1992] to which I have drawn attention above.

It would therefore appear from the judgment in ex p. Palley, following the judicial authorities cited in that judgment, that the question as to whether proposed development qualifies as PD (in those cases where the LPA has to determine whether their prior approval will be required, and if so whether or not it will be given) is not “a matter of precedent fact”, but is a matter of fact and degree to be determined by the LPA as part of their determination of the prior approval application. In particular, in the case of permitted changes of use under Part 3, the provisions of paragraph W(3) clearly envisage this approach.

Arguably, therefore, where a prior approval has been given, the LPA must be taken to have confirmed that the proposed development complies with the conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question, so that it duly qualifies as PD. It will not thereafter be open to the LPA to argue that the development does not in fact qualify as PD for any reason. The only exception to this would be deliberate deceit on the part of the applicant, whereby they had misled the authority as to the true factual position, in which case (in accordance with the Connor principle, as applied in the planning context by the Supreme Court in Welwyn Hatfield) the applicant’s deceit would prevent them in those circumstances from relying on the benefit of the planning permission granted by Article 3(1) of the GPDO.

© MARTIN H GOODALL