Mon, 17 Jul 2017
Keenan v Woking Borough Council  EWCA Civ 438
- A failure by a local planning authority to respond within 28 days to an application for a prior approval determination does not mean that the development applied for automatically becomes permitted development.
- Developers should be cautious about proceeding with development when a local planning authority fails to respond in case it is later held not to be permitted development.
The appellant was the owner of a farm in the Green Belt against whom the respondent Council had issued two enforcement notices. The breaches of planning control alleged were, respectively, that there had been a material change of use of the land, without planning permission, from agricultural to a mixed agricultural and residential use, and the construction of a “hardcore track” without planning permission. He had appealed against both enforcement notices unsuccessfully to the Secretary of State and to the High Court.
In the Court of Appeal, the appellant’s appeal was only concerned with the enforcement notice in relation to the hardcore track. The appellant argued that its construction was permitted development under the Town and Country Planning (General Permitted Development) Order 1995 (“GPDO 1995”) (which has now been replaced). The key question for the Court was whether the failure of the Council to respond to the appellant’s application for a determination as to whether prior approval was required for the “siting and means of construction of the track” meant that permission was deemed to have been granted.
Article 3(1) of the GPDO 1995 provided for the grant of planning permission for the classes of development described as permitted development in Schedule 2, and article 3(2) provided that any permission granted by Article 3(1) was subject to any relevant exception, limitation or condition specified in Schedule 2. Part 6 of Schedule 2 was concerned with “Agricultural Buildings and Operations” and Part 7 with “Forestry Buildings and Operations”.
The Appellant relied on the permitted development rights conferred by Class A of Part 6 (“Development on units of 5 hectares or more”) and Class 7 (“[the] carrying out on land used for the purposes of forestry…of development reasonably necessary for those purposes”, consisting of, amongst other things, “(b) the formation, alteration or maintenance of private ways”).
Both classes included a similar condition that where development involved the “formation or alteration of a private way” a determination had to be sought from the local planning authority as to whether prior approval was required to the “siting design and means of construction” of the private way (§§A.2(2)(i) of Class A to Part 6 and A.1(1)(a) of Class A to Part 7). Each class also provided that the development must not commence before “the expiry of 28 days following the date on which the application was received by the local planning authority without the local planning authority making any determination as to whether such approval is required or notifying the applicant of their determination” (§§A.2(2)(iii)(cc) of Class A to Part 6 and A.1(1)(c)(iii) of Class A to Part 7).
The Court of Appeal rejected the appellant’s argument that the failure of the Council to respond to his application within 28 days meant that he was entitled to proceed with the development set out in the application. In his judgment on behalf of the Court, Lewison LJ states that crucially, the grant of planning permission under the GPDO 1995 came about through the operation of article 3(1) rather than through the procedure to be followed under article 3(2) and the specific provisions for conditions in either Class A to Part 6 or Class A to Part 7. To be permitted development, the development had to come fully within the permitted development provided for by each class. If the development were not permitted development, then the conditions could not be applicable to it. The conditions also could not have the effect of enlarging the particular class of permitted development.
Lewison LJ further states that the requirement for a developer to seek prior approval did not impose a duty on a local planning authority to decide whether the development was or was not permitted development. All the local planning authority was being asked to do was to decide whether prior approval was required. Thus, if it decided that prior approval was not required, this meant only that the developer could proceed with permitted development. And if the local planning authority failed to determine whether prior approval was required within 28 days, then again the developer could only proceed with permitted development. A failure to respond within 28 days did not make development that is not permitted development into permitted development.
Although this judgment focused on the application of the GPDO 1995, the current version, the Town and Country Planning (General Permitted Development) (England) Order 2015, imposes similar requirements. Developers should be cautious about proceeding with development when a local planning authority fails to respond to a prior approval determination within the time limit. If the development is later held not to be permitted development, the local planning authority will be able to take enforcement action against it.
Howard Leithead is a member of the No5 Planning Group.