Blue Monday

With the prospect of Blue Monday looming we are sorry to report that the demands of planning legislation on planning professionals might be even greater than we thought. 

A recent appeal case (DCS Number 200-009-731), though relating specifically to a proposed agricultural development, has a bearing on the consideration of prior approval applications in general.

In this case prior approval for a barn on a farm in Hampshire was rejected at appeal after the inspector found that the appellant was not able to prove security of tenure of the requisite five hectares of land for the barn to comprise permitted development. 

Class A of Part 6 of Schedule 2 to the GPDO, the inspector recorded, grants planning permission for, amongst other things, the erection of an agricultural building, subject to certain limitations and restrictions. The council’s decision notice stated that the development was not considered to comprise permitted development under Class A of Part 6, as the site area had not been demonstrated to be five hectares or more, and it had not been confirmed that the proposal was reasonably necessary for the purposes of agriculture on the unit in relation to an agricultural trade or business.

Readers might be aware that in Keenan v Woking BC & SSCLG [2017] the judge said that an application to a local planning authority for a determination as to whether its prior approval would be required does not impose on the authority a duty to decide whether the proposed development is in fact permitted development under the GPDO. In New World Payphones Ltd v Westminster City Council [2019], however, the Court of Appeal reasoned that in Keenan the thrust of that part of the judgment was that, by requiring a developer to seek prior approval limited to restricted planning issues, that did not confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. 

The inspector acknowledged that the judgment in New World Payphones Ltd related to the consideration of the duality of phone kiosks proposed under Part 16 of the GPDO. This judgment sets out the principle that to take advantage of being permitted development, the proposed development must fall entirely within the scope of the GPDO. Nevertheless, the judgment confirms that on an application to an authority for a determination as to whether its prior approval is required, when it is in issue, the authority is bound to consider and determine whether the development otherwise falls within the definitional scope of the particular class. 

As a later judgment to both the Keenan v Woking BC & SSCLG [2017] and R (oao Marshall) v East Dorset DC & Pitman [2018] judgments, and being of a higher court than the Marshall judgment, the inspector found that the New World Payphones Ltd judgment takes precedence. While this judgment relates to development under Part 16 of the GPDO, he considered that the wording of its findings strongly indicate that the approach is not solely restricted to Part 16 developments. Based upon the evidence before him, he was satisfied that the findings of the New World Payphones Ltd judgment are equally applicable to Part 6 of the GPDO. 

Having regard to these conclusions the inspector identified the main issue to be whether the proposed development would constitute permitted development under Class A of Part 6 of Schedule 2 of the GPDO. After examining the evidence he was unable to find that the agricultural unit was five hectares or more as required by Class A of Part 6. Therefore, the proposed building was not permitted development.

The permitted development classes are set out at section 4.342 of DCP Online.