R (on the application of Marshall) v East Dorset District Council

Town and country planning – Permitted development – Prior approval – Claimant applying for judicial review of defendant local authority’s decision notice granting prior approval for erection of agricultural building – Whether proposed building constituting permitted development – Whether defendants’ decision unlawful – Application granted The claimant applied for judicial review of the defendant local authority’s decision notice, issued in response to the interested party’s application for prior approval in respect of the proposed erection of an agricultural building on land east of Pound Farm, at Hinton Martell, Wimborne, Dorset, pursuant to schedule 2, Part 6, Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GDPO). The claimant lived at Pound Farm and would be affected by the proposed building, which the interested party wished to erect on a parcel of land which he owned. The claimant contended, amongst other things, that the defendants’ decision notice was unlawful because the proposed use of the building, as set out in the interested party’s application, was to winter house 45 ewes and their lambs through the winter period. This constituted “accommodation of livestock”, within the meaning of para A.1(i) of Part 6 of schedule 2 to the GPDO, and therefore it was one of the types of development not permitted under Class A. The use described in the application would also be in breach of the condition in para A.2(1)(a), as it fell outside the terms of the exception in para D.1(3). The defendants contended that prior approval could not be required for any development falling within Class A of Part 6 because the 28 day statutory time limit for determining the application had expired. It did not have power to make a determination on whether the proposed development fell within the scope of Class A of Part 6; its powers were limited to the issue of prior approval of site, design, and external appearance. Held: The application was granted. (1) On its proper interpretation, the scope of permitted development under Class A of Part 6 was to be ascertained by reading the description under “A. Permitted Development” subject to the exceptions in “A.1 Development not Permitted”. Thus, the exceptions in para A1 formed part of the definition of the development, and could not be severed from it. They were clearly distinguishable from the conditions to which the permitted development was subject, which were expressly stated to commence at “A.2 Conditions”. Paragraph D.1(3) and para A.1(i) were intended to address different circumstances, although both were directed at protecting nearby residences from unacceptable environmental and health hazards. Paragraph A.1(i) excluded from the scope of permitted development a proposed development which was to be used for the accommodation of livestock. That was likely to be an intended permanent use, whether full-time or part-time. In those circumstances, a blanket prohibition might well be a rational policy choice. In contrast, condition A.2(1)(a) imposed a condition which controlled the use of a development which had already been carried out. It prevented the use of any building, structure etc. which had resulted from a development (whatever its original intended use) to be used as accommodation for livestock. That prevented a change to, or adoption of, an unacceptable use, either because of a change of circumstances or deliberate avoidance of para A.1(i). However, it recognised that there might be circumstances where use of a building, structure etc. as temporary livestock accommodation would be legitimate, where no other more suitable building was available, and so it provided for the exception in para D.1(3). (2) The court was satisfied from the wording of the defendants’ decision notice that they had decided that the development, constituted permitted development in accordance with the provisions of Part 6 of the GPDO. That decision was legally flawed as the defendants did not apply the correct interpretation of Class A, either in the decision notice, including the “Informative Notes”, or in the officer’s report. The defendants had wrongly assumed that the interested party could take advantage of the exception in para D.1(3). However, it appeared that its proposal was caught by the blanket prohibition on the erection of a building to be used for the accommodation of livestock in para A.1(i), which formed part of the description of Class A. (3) In Keenan v Woking Borough Council [2017] EWCA Civ 438; [2017] PLSCS 134, it was confirmed that the ‘prior approval’ conditions did not even come into play unless the proposed development fell squarely within the description of “Permitted development” in the relevant class. However, Keenan also decided that the local planning authority, when deciding a prior approval application under the terms of the GPDO, was not empowered, either expressly or implicitly, to decide whether or not the proposed development came within the description of the relevant class in the GPDO. A failure by the local planning authority to make a determination on a prior approval application within the 28 day period enabled the developer to proceed with the proposed development, under para A.2(2)(iii)(cc), but he did not thereby gain planning permission by default and so he did not have planning permission for development that was not permitted development. Following Keenan, a local planning authority did not have power under the prior approval provisions of the GPDO, or any other provision of the GPDO, to determine whether or not the proposed development came within the description of the relevant class in the GPDO. The appropriate time for the local planning authority to consider that issue was in response to an application for a certificate of lawfulness of existing use or development under section 191 of the Town and Country Planning Act 1990 or proposed use or development under section 192 or an application for planning permission. It followed that the defendants exceeded their powers, and therefore acted unlawfully. (4) Accordingly, the decision notice ought to be quashed. However, since the application was valid and the interested party was entitled, under para A.2(2)(iii) of the GPDO, to commence the development because the defendants did not make a determination within 28 days, there was no point in ordering the defendants to re-make their decision, as there was nothing for them to decide. Daniel Stedman Jones (instructed by Coles Miller Solicitors LLP, of Wimborne) appeared for the claimant; Philippa Jackson (instructed by Legal and Democratic Services) appeared for the defendants; the interested party appeared in person. Eileen O’Grady, barrister Click here to read the transcript of R (on the application of Marshall) v East Dorset District Council