The Court of Appeal decision in Keenan v Woking Borough Council & Anor [2017] EWCA Civ 438 has clarified that a prior approval condition for a defined class of permitted development within the General Permitted Development Order 1995 (now the 2015 order (“the GPDO 2015”)) does not confer a power to grant planning permission for a development outside the description of such class.
The case concerned a judicial challenge of an appeal decision by a planning inspector confirming an enforcement notice for breach of planning control caused by the construction of an unauthorised hardcore track.
The Appellant had argued that the hardcore track was permitted development pursuant to Class A of Part 6 of the GPDO 2015. That defined class granted permission for the carrying out on (a) ‘agricultural land’, within an agricultural unit of 5 hectares or more, building works and excavation and engineering operations which are (b) ‘reasonably necessary for the purposes of agriculture within that unit’. ‘Agricultural land’ being land in use for agriculture and which is used for the purposes of a trade or business.
This defined class was subject to a condition entitling the local planning authority to require its prior approval for the sitting and method of construction of a private way. The authority has 28 days from notification to confirm whether they require prior approval, and no prior approval shall be deemed in the event of the failure to determine in such time.
The Facts of the Case
In this case the Appellant had made the required application to the council for prior approval determination. The council had failed to determine the application within the 28 days, and the Appellant proceeded to carry out the construction of the hardcore track. The council argued that the hardcore track was not within Class A class use and issued the enforcement notice.
The Appellant had stated on his application for prior approval determination that the hardcore track was necessary to allow the transport of harvested Christmas trees during winter and the movement of farm materials relating to the livestock on the unit.
On appeal, the planning inspector found that, as at the date of the application for prior approval determination, the agricultural unit was in use for the growing of Christmas trees and the ancillary grazing of two sheep. On these facts, the inspector decided that such activity was not sufficient to demonstrate that the land was in active use for agricultural trade or business (ie. element (a) of Class A above) but commented that it may fall under the similar permitted development rights for forestry under Part 7 of the GPDO 2015. Importantly, the inspector further decided that there was no evidence that the hardcore track at the time of the application was reasonably necessary for the purposes of agriculture (or forestry). The inspector found that the failure to determine the prior approval application within 28 days was irrelevant as the development fell outside the defined use class, and the appeal was therefore dismissed.
The Court of Appeal Decision
The legal challenge before the Court of Appeal was limited to the legal effect of the council’s failure to determine the prior approval application, and specifically whether a failure to respond could deem a development to fall within the defined use class where otherwise it wouldn’t.
The Court of Appeal agreed with the planning inspector and the earlier decision of the High Court. In short, a prior approval determination does not grant planning permission for development that is outside the description of the defined class use in the GPDO 2015. Lord Justice Lindbolm summarised the legal position as follows:
“The condition [in Class A], which required the developer, before beginning the development, to apply to the local planning authority for a determination as to whether its "prior approval" would be required to the "siting and means of construction" of the "private way", did not impose on the authority a duty to decide whether or not the development in question was, in fact, permitted development under Class A… 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 local planning authority to determine whether its own "prior approval" would be required for those specified details of that "permitted development".
Lesson: a prior approval determination, or lack thereof, is not in itself a decision that the proposed development falls within the relevant defined use class of the GPDO 2015. In borderline proposals, and particularly where the council has failed to make a determination of the prior approval application, developers and landowners should strongly consider first applying for a certificate of lawfulness of proposed use or development under section 192 of the Town and Country Planning Act 1990.
