East Hertfordshire District Council v Secretary of State for Communities and Local Government

    Town and country planning – Permitted development – Prior approval – Claimant local authority refusing prior approval for conversion of agricultural building to dwelling house – Defendant secretary of state allowing appeal and granting prior approval – Whether claimants failing to take into account paragraph 55 of National Planning Policy Framework (NPPF) – Whether inspector’s decision irrational – Whether paragraphs 108 and 109 of Planning Practice Guidance (PPG) inconsistent with Town and Country Planning (General Permitted Development) Order 2015 – Application dismissed   The interested party applied to the claimant local planning authority for prior approval of a development falling within Class Q in Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 2015, namely, the conversion of an agricultural barn to one dwelling location within an agricultural field to the south of Woodside Cottage within the Hamlet of Broxbourne Common to the west of Broxbourne. Class Q granted change of use from agricultural to C3 residential use together with “building operations reasonably necessary to convert the building” being permitted development without the need for the grant of planning permission subject to criteria and conditions, including in some cases a prior approval process. Paragraph Q.2 provided that where both the change of use of an agricultural building and reasonably necessary building operations were proposed, the permitted development was subject to a condition that, before development could commence, prior approval was granted in relation to material factors. In considering “whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within class C3 (dwelling houses)” in paragraph Q.2(1)(e), the claimants, applying the relevant policies of the NPPF, concluded that the isolated and unsustainable location of the site gave rise to a harmful impact that could not be mitigated. Accordingly, the proposed development was undesirable and prior approval was refused. An inspector appointed by the defendant secretary of state allowed an appeal against that refusal. The claimants applied to quash that decision under section 288 of the Town and Country Planning Act 1990 on the grounds that the inspector had erred in law by failing to take into account paragraph 55 of the NPPF; alternatively, the inspector’s decision was irrational in suggesting that, as a matter of planning judgment, the inspector could exclude paragraph 55 from her deliberations in so far as it was relevant to development of a dwelling in an isolated location. Further, the inspector had erred in relying on paragraphs 108 and 109 of the PPG which addressed accessibility of location and were inconsistent with the 2015 Order. Held: The application was dismissed. (1) The decision-maker on an application under Class Q was required to consider whether the change of use of an agricultural building to a dwelling house was “undesirable”, applying the policies of the NPPF in accordance with paragraph W(10). Class Q created an entitlement to permitted development, qualified by the satisfaction of the conditions set out as the questions for the prior approval process. The purpose of the legislation creating that class of permitted development was to deliver more homes and to increase housing supply which was clearly intended to lead to the development of residential uses in locations which would not ordinarily be contemplated by the undiluted application of, for instance, policies in the NPPF relating to location. The term “undesirable” called for an exercise of planning judgment by the decision-maker framed by the particular context of an application for prior approval of a form of permitted development created for the purpose of increasing the supply of housing, and not an application for planning permission. It was reasonable to expect that that planning judgment would be reached against the backdrop of the purpose for creating the class in the first place. (2) The planning judgment to be exercised was not one in which accessibility was ruled out or rendered completely irrelevant by the context of the prior approval of this class of development. However, assessment of location had to be examined through the prism of the purpose of the legislation. To apply the policies of the NPPF with the same rigour in respect of accessibility of residential development to the Class Q prior approval process as would be applied to an application for planning permission for residential use would have the potential to frustrate the purpose of the introduction of the class, namely to increase the supply of housing through the conversion of agricultural buildings which by definition would very frequently be in the open countryside. Thus, whilst accessibility was not an irrelevant consideration when considering Class Q.2(1)(e), the bar in relation to the test of unacceptable inaccessibility would necessarily be set significantly higher than in the context of an application for planning permission. (3) That approach to the exercise of the planning judgment of what might be undesirable about the location of the agricultural building in the context of Class Q was not undermined by the reference in paragraph W(10)(b) to the requirement for the local planning authority to have regard to the NPPF when considering a prior approval application as if it were a planning application. The application of the NPPF had to be undertaken in the context of a proper understanding of the test being considered, in this case undesirability of location. It was in the context of an understanding of Class Q.2(e) that the NPPF had to be applied; not to frustrate the purpose of identifying the class of permitted development in the first place. Paragraphs 108 and 109 reflected that approach in stating that there was no specific requirement within paragraph Q.2(1) in relation to accessibility of location; and that the fact that an agricultural building was in a location where planning permission would not normally be granted for accessibility reasons would not amount to a sufficient reason for refusing prior approval. (4) The claimants case, which was the equivalent of an argument that prior approval should be refused because the agricultural building was in a location where the claimants would not normally grant planning permission for a new dwelling on accessibility grounds, was contrary to the guidance in paragraphs 108 and 109. It followed that the inspector was entitled to conclude that the claimants’ objections based on paragraph 55 of the NPPF could not be maintained. Having rejected that argument, the inspector was entitled to form the view that it could not be argued that conversion of the building to residential use would be impractical or undesirable. Rebecca Clutten (instructed by Sharpe Pritchard) appeared for the claimants; Hugh Flanagan (instructed by the Government Legal Department) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of East Hertfordshire District Council v Secretary of State for Communities and Local Government.