Going behind a prior approval

If an LPA in determining a prior approval application under a relevant part of the Second Schedule to the GPDO decides either that their prior approval will not be required or grants such prior approval, can the authority later resile from that decision on the basis that the development does not in practice qualify as PD, or (alternatively) can a third party successfully challenge the LPA’s decision on the same ground?

I have been meaning to return to this topic ever since the judgment of the High Court in R (Marshall) v E Dorset DC [2018] EWHC 226 (Admin), in which judgment was given on 13 February.

In a blog post on Monday, 16 January 2017 (Can an LPA override a prior approval?), I drew attention to the little-known judgment in R. v. Sevenoaks DC, Ex p Palley [1994] E.G. 148 (C.S.), which appeared to suggest that when an LPA gives its prior approval (or decides that its prior approval is not required), it is inherent in that determination that the authority necessarily accepts that the proposed development does qualify as PD, so that the council cannot thereafter resile from that position.

Until my attention had been drawn to Ex p Palley, it had been my view that if the proposed development does not in fact comply with the criteria for permitted development under the relevant Class in (for example) Part 3 or Part 6 of the Second Schedule to the GPDO, either because a requisite pre-existing use did not qualify under that Class of PD, or because the proposed development is not within the limitations, restrictions or conditions that apply to the relevant Class of PD, then an application for prior approval, even if the approval is given (or if the application is simply not determined within the 56-day or 28-day period – whichever is applicable) cannot make the proposed development lawful, and so it cannot be carried out as PD.

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 specified matters that require prior approval. It follows (I had originally thought) that the giving of prior approval could not overcome the fact that the development is in any event disqualified from being PD.

During the course of discussion in comments that were posted in response to the revised view that I expressed in light of Ex p Palley, a correspondent raised with me the effect of the Court of Appeal’s decision in Keenan v Woking BC and SSCLG [2017] EWCA Civ 438. At the time, I felt that Keenan did not affect the position, because it simply seemed to me to confirm that if the development does not qualify as PD, the 56-day rule [or the 28-day rule in that case] will not operate so as to allow the proposed development to go ahead in the absence of the prior approval application having been determined within the statutory time limit. There had previously been several appeal decisions to the same effect, and I stressed this point in my book, A Practical Guide to Permitted Changes of Use (see page 201 in the Second Edition, and for good measure, I repeated it at the bottom of page 210).

However, it seems that the effect of the decision in Keenan is of slightly wider effect than that (at least so far as PD under Part 6 is concerned), and Mrs Justice Lang’s judgment in Marshall has prompted me to look more carefully at Keenan.

In Marshall, Lang J drew attention to the disqualification in paragraph A.1 of Part 6, whereby development is not permitted by Class A if it would consist of, or include, the erection or construction of, or the carrying out of any works to, a building, structure or an excavation used or to be used for the accommodation of livestock or for the storage of slurry or sewage sludge where the building, structure or excavation is, or would be, within 400 metres of the curtilage of a protected building, but in this case the proposed building was within 400 metres of several dwellings (including the Claimant’s home) which were “protected buildings” as defined. Furthermore, paragraph A.2 makes it a condition of permitted development under Part 6 that where development is carried out within 400 metres of the curtilage of a protected building, any building, structure, excavation or works resulting from the development are not used for the accommodation of livestock (except in certain defined circumstances).

Notwithstanding this, the LPA issued a decision notice in response to the developer’s prior approval application under Part 6, which stated that “The development, therefore, constitutes permitted development in accordance with the provisions of Part 6 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) and is subject to the standard conditions.” In dealing with this point, Lang J followed the judgment of the Court of Appeal in Keenan, and in particular the words of Lindblom LJ that, in order to be lawful, the development proposed had to fall squarely within the description of “permitted development” in the relevant Class.

In particular, Lindblom LJ observed in Keenan that the GPDO did not impose on the LPA a duty to decide whether or not the development in question was, in fact, permitted development under Class A of Part 6, albeit that the guidance in paragraph E14 of Annex E to PPS7 might have been read as encouraging it to do so. Nor did it confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. The sole and limited function of this provision was to enable the LPA to determine whether its own “prior approval” would be required for those specified details of that “permitted development”. If the authority were to decide that its “prior approval” was not required, the condition would effectively have been discharged and the developer could proceed with the “permitted development” – though not, of course, with any development that was not “permitted development”. If, however, the authority failed to make a determination within the 28-day period, again the developer could proceed with the “permitted development”, but again not with any development that was not “permitted development”. The developer would not at any stage have planning permission for development that was not, in fact, “permitted development”.

As Lang J put it in Marshall (referring to Keenan), the ‘prior approval’ conditions do not even come into play unless the proposed development falls “squarely within the description of Permitted development” in the relevant Class, and she emphasised that Keenan also decided that the LPA, when deciding a prior approval application under the terms of the GPDO [at least under Part 6, but see below], is not empowered, either expressly or implicitly, to decide whether or not the proposed development comes within the description of the relevant Class in the GPDO.

This confirms the view which I had originally expressed myself as to the effect of the legislation. Clearly, therefore, in the context of Part 6, Ex parte Palley can have no application.

Whilst I accept the logic of both the Keenan and Marshall judgments, I still have a niggling doubt at the back of my mind, which those two judgments do not entirely resolve. Both of these cases involved agricultural development under Part 6, and I fully accept Lindblom LJ’s views, quoted by Lang J in her judgment in Marshall, so far as Part 6 applications are concerned. However, the actual legislative wording of Part 3 does seem to imply that in the case of prior approval applications under that Part of the Second Schedule to the GPDO, the LPA when deciding a prior approval application under the terms of Part 3 is empowered, either expressly or impliedly, to decide whether or not the proposed development comes within the description of the relevant Class in Part 3.

In relation to Part 3, paragraph W. –(1) provides that the following provisions apply where under this Part a developer is required to make an application to a local planning authority for a determination as to whether the prior approval of the authority will be required. Under paragraph W. -(3), the LPA may refuse a prior approval 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 this Part as being applicable to the development in question.

I think I would have to concede that paragraph W. –(3) empowers the LPA only to refuse the prior approval application if the development does not qualify as PD but, arguably, this might reasonably be taken to imply that if the LPA either grants its prior approval or determines that its prior approval of the specified matters is not required, then the authority may be taken to have accepted that the development does qualify as PD, and in those circumstances Ex p Palley (as discussed in the earlier blog post to which I have drawn attention above) would come into play.

Ex p Palley was, of course, decided some years before the House of Lords’ decision in R v East Sussex CC ex p Reprotech (Pebsham) Ltd [2002] UKHL 8, in which it was held that the clear terms of the modern legislation (sections 191 and 192 of the 1990 Act in their currently amended form) provide the only means of confirming the lawfulness of an existing or proposed use or development. Such a determination cannot be construed from the outcome of other procedures, nor can a finding of lawfulness be made or implied informally. However, that is a rather different point from the one raised here. We are dealing here with a planning permission granted by Art. 3(1) of the GPDO, subject only to prior approval of certain matters by the LPA (or their determination that their prior approval is not required), rather than with an informal opinion or implied certificate as to the lawfulness of the proposed development in connection with which prior approval has been granted.

In principle, the qualification of a proposed development as PD would appear to be an issue that is entirely separate from the grant of prior approval (and this was the view I initially expressed). However, it appears on closer examination (particularly bearing in mind the wording of paragraph W -(3)) that the prior approval could reasonably be taken, for the reason advanced above, to involve a determination by the LPA that the restrictions, limitations and conditions applicable to that Class of PD in Part 3 are met, and that the proposed development accordingly qualifies as PD.

It is in light of this factor that the judgment in Ex p. Palley may become relevant where prior approval has been given under Part 3, because the determination by the LPA is arguably a judgment by them (in accordance with paragraph W. –(3)) of a matter of fact and degree that can only be challenged on Wednesbury grounds by way of an application for judicial review. The point of the judgment in Ex p. Palley is that, because (having regard to the wording of paragraph W -(3)) the LPA may be taken to have considered and determined whether the development does in fact qualify as PD, this issue is not merely “a matter of precedent fact".

I cannot guarantee that this argument would necessarily be accepted if it were to come before the High Court or the Court of Appeal, but in view of the fact that this argument rests on a legislative provision in Part 3 (which is absent from Part 6), rather than relying on a reference to ministerial practice guidance, as was the case in Keenan, it would appear that a Part 3 case might well be distinguishable from the judgments in Keenan and in Marshall (concerned as they were with the differently worded provisions of Part 6). I suspect we shall just have to sit back and wait for someone to take a punt on this point.

© MARTIN H GOODALL