The scope of a prior approval application

One of the issues that has arisen in relation to prior approval applications is whether in determining either that their prior approval will not be required or that prior approval is granted, the LPA is impliedly determining that the proposed permitted development does qualify as such, so that the LPA cannot subsequently resile from their decision on the ground that the development does not in fact qualify as permitted development.

This problem became particularly acute following the judgment in Hibbitt regarding the permissible extent of building operations under Part 3, Class Q. Several LPAs, having granted prior approval for Class Q developments then sought to go behind the prior approval they had granted, because they then came to the conclusion in light of Hibbitt that the development in respect of which they had granted prior approval could not in fact be carried out as PD.. I discussed this issue in paragraph 16.2 of Chapter 16 in the Third Edition of my book on Permitted Changes of Use.

So far as permitted development under Part 6 is concerned (allowing certain agricultural building or engineering operations), the Court of Appeal in Keenan v Woking BC was clear 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 it was 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.

Some LPAs have assumed that Keenan is authority for the general proposition that a grant of prior approval does not amount to a determination that the development in question does qualify as PD. However, as I pointed out in the book, the wording of paragraph W.(3) does appear to give an LPA that power in relation to proposed development under Part 3. Paragraph W.(3) provides that the LPA 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. It was on this basis that I expressed the view that there is at least an implication in paragraph W.(3) that the LPA may (and probably 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, I suggested, that in giving its prior approval in respect of the prescribed matters, the LPA impliedly 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. I suggested that It is arguable that, for this reason, 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 suggested that further support for this proposition may perhaps be derived from the judgment of May J in R v Sevenoaks DC Ex p. Palley [1994] E.G. 148 (C.S.), and went on to summarise that judgment and the various judicial authorities that were reviewed in that case. In doing so, I nevertheless conceded that Ex p Palley can have no application in Part 6 cases, in light of the clear decision of the Court of Appeal in Keenan. I also added a caveat that Ex p Palley was decided some years before the House of Lords decision in Reprotech, which perhaps throws some doubt on the extent, if any, that reliance can still be placed on Ex p Palley in other prior approval cases. So my remarks in paragraph 16.2 ended on a somewhat tentative note, with the observation that there could be no guarantee that an argument based on the judgment in Ex p Palley would necessarily be accepted if it were to come before the High Court or the Court of Appeal.

My reason for raising this issue again now is that I have noticed that a case is due for hearing in the High Court on 11 May (R (Smolas) v Herefordshire Council) which raises this issue of whether LPAs have the power when considering a prior approval application of also determining whether the proposed development does in fact fall within the scope of the relevant class of PD under the GPDO. I do not know the subject matter of the dispute in Smolas, nor do I know under what Part or Class in the Second Schedule to the GPDO the proposed development is alleged to fall, but I am hoping that the forthcoming decision in the High Court may perhaps help to remove the remaining uncertainty that I had identified, one way or the other.

© MARTIN H GOODALL