Can actual qualification as PD be determined in the context of a prior approval application?

On 29 March, in a blog post on the scope of a prior approval application, I drew attention to a case that was then pending in the High Court which raised this issue of whether LPAs have the power when considering a prior approval application to determine whether the proposed development does in fact fall within the scope of the relevant class of PD under the GPDO. At the time, I did not know the subject matter of the dispute in that case, nor did I know under what Part or Class in the Second Schedule to the GPDO the proposed development was alleged to fall, but I was hoping that the High Court judgment in this case might perhaps help to remove the remaining uncertainty that I had identified with regard to prior approval applications under Part 3, one way or the other.

Unfortunately, my hopes were not to be realised, as it turns out that this case R (Smolas) v Herefordshire Council [2021] EWHC 1663 (Admin) was yet another case on agricultural PD under Part 6, so it doesn’t shed any further light on the treatment of prior approval applications under Part 3 (in respect of which the legislative rules differ slightly from those applying to Part 6). It is nevertheless an important judgment for two reasons.

On one reading of the Court of Appeal’s judgment in Keenan v Woking BC, it is possible to conclude that under the terms of Part 6, the LPA does not have the power to determine whether or not a proposed development under that part of Schedule 2 does or does not qualify as permitted development, and the Court of Appeal had stressed that this is so, despite the fact that the guidance in paragraph E14 of Annex E to former PPG7 might have been read as encouraging it to do so. Clearly, however, Keenan is capable of being distinguished, as it has been in Smolas.

The argument in Keenan had been that, as a result of the LPA’s having ignored a Part 6 prior approval application, the applicant had been entitled to proceed with his development in default (under the ’28-day’ rule). This argument was rejected both at first instance and in the Court of Appeal. Keenan ruled conclusively that if a development simply does not qualify as PD in any event, what (if anything) the LPA does in response to a prior approval application in respect of that application cannot make the development lawful. The failure or refusal of the LPA in such circumstances to respond to the prior approval application cannot give rise to a right to proceed with the development in default. The ’28-day rule’ does not come into operation in these circumstances.

What is clear from the judgment in Smolas is that if the LPA concludes that the proposed development does not qualify as PD, it is perfectly entitled to give that as a reason for refusing prior approval. The LPA was not exceeding their powers in dealing with the matter in that way. To that extent the decision in Keenan has been distinguished. In this case, the Council had issued a decision notice that simply stated that Planning Permission would be required for this development because they were not satisfied that the development was reasonably necessary for agriculture on that planning unit. This, the court held, was perfectly lawful. I am bound to say that this appears to me to be an eminently sensible conclusion.

The judgment in Smolas also resolves another issue that has been the subject of debate for some time. Is it lawful for an LPA to determine that their prior approval under Part 6 will be required and to grant or refuse such prior approval at one and the same time? The argument that has sometimes been put forward is that the LPA, having determined that their prior approval will be required should then give the applicant the opportunity to put forward further information in support of their proposed development (in the case of Part 6, as to the siting and design of the development). The counter-argument to this is that if the LPA considers that the application before them already gives them sufficient information to determine the siting/design issue, then they are not obliged to go through any additional procedure, but can decide whether or not to grant prior approval on the basis of the material already before them. The judgment in Smolas confirms that the latter approach is perfectly proper.

In normal circumstances, the appropriate remedy for a developer refused prior approval in this way would be to appeal against that refusal under section 78 of the 1990 Act. In the case of Smolas, however, the court accepted that the argument as to whether or not this was within the LPA’s powers made it necessary for the matter to be pursued by way of an application in the High Court for judicial review under CPR Part 54. However, in the vast majority of cases, an appeal under section 78 would be the only appropriate remedy.

© MARTIN H GOODALL

Planning radicalised – or a ‘damp squib’?

Last year, the government published a controversial and much criticised White Paper on some wide-ranging planning ‘reforms’, which canvassed radical proposals for shaking up the English planning system. There was another fanfare (with the accompanying ballyhoo in the press) when, on the day before the Queen’s Speech last month, the Prime Minister announced with his usual hyperbole that the government was definitely going ahead with these revolutionary changes. The Queen’s Speech duly contained the announcement of a Planning Bill to put these proposals into legislative form.

After that, however, it quickly became clear that the government is in fact nowhere near ready to go ahead with the promised Bill. It emerged in the weeks that followed that as a result of strenuous opposition within Tory ranks, the government is far less determined to press ahead with their planning proposals than the PM made out. Considerable alarm was caused among party loyalists early in May by the loss of control of several councils in the south of the country, as a result of growing public opposition to the perceived threat of development in traditionally Tory-held areas.

For many years, there has been unresolved tension inside the Tory party between the gung-ho free marketeers on the one hand and a more conservationist faction (NIMBYs, if you like) on the other hand. The latter clearly had the upper hand when the Conservatives got back into government in 2010, having campaigned on a policy of ‘localism’, and promising electors that in future they would have local control over development in their area. Eric Pickles, as Secretary of State for Communities and Local Government, immediately set about putting this localism agenda into action, with the abolition of government-imposed Regional Spatial Strategies and the introduction of locally formulated Neighbourhood Plans.

Those of us who had been professionally involved in planning and development for many years did not believe that this new approach could be maintained and, as we expected, ‘localism’ was gradually watered down until, with the publication of last year’s White Paper, it seemed that the last vestiges of ‘localism’ were to be swept away, to be replaced by a radically overhauled planning system which would put an end to local residents’ ability to query and oppose unwanted development in their area. Unsurprisingly, this led to considerable push-back at a local level from Tory councillors and local party members, which in turn led to increasing pressure on backbench MPs to resist these proposals.

The government’s initial reaction was a robust reaffirmation of their determination to push ahead with their proposals, as evidenced by the PM’s statement on the eve of this years’ Queen’s Speech. Then Robert Jenrick (the current Secretary of State) was sent out to ‘reassure’ Tory backbenchers that it wasn’t going to be as bad as all that. This, however, has clearly failed to quell the disquiet in Tory ranks, which has only intensified in light of last month’s worrying local election results. As a result, there have been increasing hints that the government itself is now rowing back from its earlier gung-ho approach to their proposed planning ‘reforms’.

It would not be altogether surprising if the promised Planning Bill does not in fact come forward in the current parliamentary session, despite its announcement in the Queen’s Speech, or if it does that it may be delayed until later in the session. Any expectation, raised by the PM’s pre-Queen’s Speech announcement, that the promised Planning Bill would be introduced almost immediately was clearly misleading. At present, it is not even possible to predict which proposals from last year’s White paper will in fact survive to be included in the Bill. There is now a widespread expectation, even among government supporters, that what may emerge is likely to be a considerably watered-down version compared with the government’s original proposals, which will be much less radical in its effect than the government had hoped.

Even if we set aside speculation about the timing and contents of the Planning Bill, long experience has taught me that it is unwise to get too excited about parliamentary bills when they are first introduced. They usually look very different by the time they get to Royal Assent, mainly due to the government having second and third thoughts as the Bill goes through parliament. Opposition amendments are usually voted down (especially when the government has an 80-seat majority), although in this case, threatened backbench revolts on the government side over the Bill’s contents may persuade the government to back down on some clauses in the Bill if these still prove to be unacceptable to a significant number of their own backbenchers.

So I am prepared to predict that the resulting Planning Act, when it eventually reaches the statute book, is unlikely to work in the way the Prime Minister suggested ahead of the Queen’s Speech. It may become easier to gain planning permission for housing development; but this isn’t guaranteed, and many of the delays and expensive procedural hurdles for developers may continue to hamper the actual delivery of new housing. So my overall conclusion is that those of us in the planning and development sector will just have to “Wait and see”.

UPDATE (21.6.21) : Following the shock result of the Chesham and Amersham byelection last week, it comes as no surprise that backbench Tory MPs are getting even more jumpy about the government's proposed planning 'reforms'. There will clearly be intensified pressure on the government to row back from its more radical proposals, if not to drop them altogether. It seems that ministers are still trying to bluff and bluster their way through this 'noise', but at the very least I would expect some substantial further delay in the introduction of the promised Planning Bill while ministers decide how far they might be able to go in implementing their original proposals. A complete U-turn on the part of the government cannot be ruled out, so don't be surprised if we don't even see the Planning Bill introduced this year.

© MARTIN H GOODALL