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