Keenan v Woking Borough Council & Anor [2017] EWCA Civ 438

[2017] EWCA Civ 438Case No C1/2016/1733
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2016] EWHC 427 (Admin)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MRS JUSTICE LANG DBE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 June 2017
Before
Lord Justice LewisonLord Justice Lindblom
Between
Patrick KeenanAppellant(1) Woking Borough CouncilRespondents(2) Secretary of State for Communities and Local GovernmentRespondent
Mr Jonathan Wills (instructed by Coyle White Devine) for Appellant for The First Respondent did not appear and was not representedMs Estelle Dehon (instructed by the Government Legal Department) for theSecond RespondentHearing Hearing date: 16 May 2017
Judgment Approved by the court for handing down (subject to editorial corrections)

Introduction

[1]What was the effect of a local planning authority’s failure to respond within 28 days to an application under the Town and Country Planning (General Permitted Development) Order 1995 (“the GPDO 1995”) for a determination as to whether its prior approval would be required for details ofa hardcore track said by the applicant to be “permitted development” on “agricultural land”? That is the central question in this appeal.[2]The appellant, Mr Patrick Keenan, appeals against the order of Lang J., dated 8 March 2016, dismissing his appeal to the High Court under section 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) against the decision of an inspector appointed by the second respondent, the Secretary of State for Communities and Local Government, in a decision letter dated 22 June 2015, dismissing appeals by Mr Keenan and his wife against two enforcement notices issued by the first respondent, Woking Borough Council. The enforcement notices alleged breaches of planning control on land known as Blanketmill Farm, Goose Rye Road, Worplesdon. I granted permission to appeal on 31 January 2017.[3]Blanketmill Farm is in the Green Belt. It extends to about 5.6 hectares, 4.8 hectares of which is in the borough of Woking, about 0.8 hectare in the adjoining borough of Guildford. It has a long planning history, in the course of which the council has several times taken enforcement action. The two enforcement notices in these proceedings were issued by the council on 20 March 2014. The breaches of planning control alleged in them were, respectively, the making of a material change of use of the land, without planning permission, from agriculture to a mixed agricultural and residential use, and the construction, without planning permission, of a “hardcore track”.[4]The appeals against the enforcement notices were heard by the inspector at an inquiry in January and February 2015. She dismissed both appeals on all grounds and upheld the notices. We are concerned here with her conclusions on the appeal against the notice relating to the “hardcore track” on ground (c) in section 174(2) of the 1990 Act – that the matters stated in the notice “… do not constitute a breach of planning control”. In their appeal on ground (c) Mr and Mr Keenan contended that the construction of the track was “permitted development” under the GPDO 1995. The inspector rejected that contention.

The issue in the appeal

[5]The single issue in the appeal is whether, contrary to the judge’s conclusion, the effect of the council’s failure to respond within 28 days to an application made by Mr Keenan for a determination as to whether its prior approval would be required for the “siting and means of construction” of the track was that the track had planning permission, even if it was not within the scope of the “permitted development” provisions for buildings or operations for agriculture under Class A of Part 6 of Schedule 2 to the GPDO 1995 (or for forestry under Class A of Part 7).

The GPDO 1995

[6]Section 57(1) of the 1990 Act contains the basic provision that “planning permission is required for the carrying out of any development of land”. Section 58(1)(a) provides that planning permission may be granted by a “development order”. The GPDO 1995 (now replaced by the Town and Country Planning (General Permitted Development) (England) Order 2015, which came into force on 15 April 2015) was a “development order”. Section 60(1) provides that planning permission granted by a development order “may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order”.[7]Article 3 of the GPDO 1995 provided, so far as is relevant here:
“(1) Subject to the provisions of this Order … planning permission is hereby granted for the classes of development described as permitted development in Schedule 2. (2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2. … .” … .”
[8]Part 6 of Schedule 2 related to “Agricultural Buildings and Operations”, Part 7 to “Forestry Buildings and Operations”.[9]Class A of Part 6 (“Development on units of 5 hectares or more”) provided: “A.

(b) any excavation or engineering operations,

[10]Paragraph A.2 of Class A provided, so far as is relevant here:
“A.2 Conditions … (2) Subject to paragraph (3), development consisting of – … (b) the formation or alteration of a private way; … is permitted by Class A subject to the following conditions – (i) the developer shall, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to … the siting and means of construction of the private way … ; (ii) the application shall be accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site together with any fee required to be paid; (iii) the development shall not be begun before the occurrence of one of the following – (aa) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required; (ab) where the local planning authority give the applicant notice within 28 days following the date of receiving his application of their determination that such approval is required, the giving of such approval; or (ac) 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; … (v) the development shall, except to the extent that the local planning authority otherwise agree in writing, be carried out – (aa) where prior approval is required, in accordance with the details approved; (bb) where prior approval is not required, in accordance with the details submitted with the application; and (vi) the development shall be carried out – (aa) where approval has been given by the local planning authority, within a period of five years from the date on which approval was given.” (2) Subject to paragraph (3), development consisting of – … (b) the formation or alteration of a private way; … is permitted by Class A subject to the following conditions – (i) the developer shall, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to … the siting and means of construction of the private way … ; (ii) the application shall be accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site together with any fee required to be paid; (iii) the development shall not be begun before the occurrence of one of the following – (aa) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required; (ab) where the local planning authority give the applicant notice within 28 days following the date of receiving his application of their determination that such approval is required, the giving of such approval; or (ac) 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; … (v) the development shall, except to the extent that the local planning authority otherwise agree in writing, be carried out – (aa) where prior approval is required, in accordance with the details approved; (bb) where prior approval is not required, in accordance with the details submitted with the application; and (vi) the development shall be carried out – (aa) where approval has been given by the local planning authority, within a period of five years from the date on which approval was given.”
[11]The relevant definition of “agricultural land” was in paragraph D.1:
“‘agricultural land’ means land which, before development permitted by this Part is carried out, is land in use for agriculture and which is so used for the purposes of a trade or business, and excludes any dwellinghouse or garden.”
[12]The “Permitted development” provisions in Class A of Part 7, in respect of “[the] carrying out on land used for the purposes of forestry … of development reasonably necessary for those purposes” consisting of, among other things, “(b) the formation, alteration or maintenance of private ways”, were in parallel terms to the corresponding provisions of Part 6. They included materially similar provisions as to the conditions subject to which the development was granted (in paragraph A.2(1)(a) to (f)).

The guidance in Planning Policy Statement 7: Sustainable Development in Rural Areas (“PPS7”)

[13]PPS7, published in August 2004, was revoked by the National Planning Policy Framework on 27 March 2012. However, Annex E: Permitted Development Rights for Agriculture and Forestry was retained until the Government issued the Planning Practice Guidance on 6 March 2014, and was therefore still current when Mr Keenan made an application to the council for “prior notification of agricultural or forestry development – proposed road” on 29 March 2012.[14]Paragraph E3 of Annex E emphasized that, under Part 6 of Schedule 2 to the GPDO 1995, development “must”, among other things “be on agricultural land, which means land in use for agriculture for the purposes of a trade or business …”, and “be reasonably necessary for the purposes of agriculture within the unit”. Under the heading “The determination procedure”, the guidance included these passages:
“E12. In certain cases, the permitted development rights for development on agricultural units of 5 hectares or more and for forestry cannot be exercised unless the farmer or other developer has applied to the local planning authority for a determination as to whether their prior approval will be required for certain details … . The local planning authority have 28 days for initial consideration of the proposed development. Within this period they may decide whether or not it is necessary for them to give their prior approval to these details of development involving new agricultural and forestry buildings … . … E14. The determination procedure provides local planning authorities with a means of regulating, where necessary, important aspects of agricultural and forestry development for which full planning permission is not required by virtue of the General Permitted Development Order. They should also use it to verify that the intended development does benefit from permitted development rights, and does not require a planning application … . There is no scope to extend the 28 day determination procedure, nor should the discretionary second stage concerning the approval of certain details be triggered for irrelevant reasons. A local planning authority will therefore need to take a view during the initial stage as to whether Part 6 rights apply. E15. Provided all the General Permitted Development Order requirements are met, the principle of whether the development should be permitted is not for consideration … . E16. In operating these controls as they relate to genuine permitted development, local authorities should always have full regard to the operational needs of the agricultural and forestry industries … .”
Further guidance on the handling of such applications was given in paragraphs E17 to E21. This confirmed that “[the] Secretary of State attaches great importance to the prompt and efficient handling of applications for determination and of any subsequent submissions of detailsfor approval under the provisions of the General Permitted Development Order”, that “[undue] delays can have serious consequences for agricultural and forestry businesses …” (paragraph E18), and that “[where] the authority do not propose to require the submission of details, it would be helpful and courteous to inform the developer as soon as possible, to avoid any unnecessary delay or uncertainty” (paragraph E19). … E14. The determination procedure provides local planning authorities with a means of regulating, where necessary, important aspects of agricultural and forestry development for which full planning permission is not required by virtue of the General Permitted Development Order. They should also use it to verify that the intended development does benefit from permitted development rights, and does not require a planning application … . There is no scope to extend the 28 day determination procedure, nor should the discretionary second stage concerning the approval of certain details be triggered for irrelevant reasons. A local planning authority will therefore need to take a view during the initial stage as to whether Part 6 rights apply. E15. Provided all the General Permitted Development Order requirements are met, the principle of whether the development should be permitted is not for consideration … . E16. In operating these controls as they relate to genuine permitted development, local authorities should always have full regard to the operational needs of the agricultural and forestry industries … .”

Mr Keenan’s track

[15]Mr Keenan’s application of 29 March 2012 for “prior notification” described the site as a “… Farm (smallholding) of 15 acres (5.2 ha)”. The proposal was stated to be for a track 260 metres in length and 3.05 metres wide, with a turning area 10 metres long and 8 metres wide. The “area of the proposed agricultural unit” was said to be 5.2 hectares. To the question “How long has the land on which the proposed development would be located been in use for agriculture for the purposes of a trade or business?”, the answer given was “11 years”. And to the question “Is the proposed development reasonably necessary for the purposes of agriculture?”, the response was “Yes”. The reason given for that response was:
“To allow transport of harvested trees during the winter from site of growth to market. Agricultural use of unit. To move materials required for movement of stock pens [and] stock. To prevent transmissible diseases to stock of sheep and pigs”
. The development was said to be “designed for the purposes of agriculture”, for this reason:
“Without the proposed track the trees would not be able to be moved safely and without damage during December. Stock pens and stock movement would be dangerous during winter months without track. Agricultural use of unit[,] so for safety also of farm workers”
. It was indicated that the proposed track was “To join existing track”.[16]The council did not issue any determination on that application, and Mr Keenan proceeded to construct the track.[17]On 25 October 2013, the council granted retrospective planning permission for part of the track, having accepted that this part of itwas required to serve a store building.

The council’s enforcement notice

[18]In the enforcement notice relating to the track the matters which appeared to constitute the breach of planning control were stated to be:
“Without planning permission, the construction of a hardcore track on the Land in the approximate position coloured blue on the attached Plan.”
The reasons for issuing the notice included these:
“(a) It appears to the Council that the above breach of planning control has occurred within the last four … years. (b) … The hardcore track is not reasonably related to agriculture … .”
The notice required the removal of the “hardcore track” and the restoration of the land to its former condition.

The inspector’s conclusions on the ground (c) appeal

(c) appeal

[19]The inspector dealt with the ground (c) appeal in paragraphs 6 to 21 of her decision letter. There was, she said, “no dispute that the laying of the track is operational development which requires planning permission”. Mr and Mrs Keenan’s case was that it was “permitted by way of [the GPDO 1995] …” (paragraph 6). She set out Class A of Part 6 of Schedule 2 to the GPDO 1995 and the condition in paragraph A.2(2)(i) requiring an application to be made for determination as to the need for prior approval of siting and means of construction (paragraph 7).[20]As to that condition, the inspector said this (in paragraphs 8 and 9):
“8. The Appellants say such an application was made and that, following the expiry of 28 days, having not had a determination or notification from the Council as to whether such approval was required, they were entitled to commence the development as was set out in para.A.2(2)(iii)(cc). The Council, on the other hand, says the application was invalid because the development did not fall within Class A of Part 6 of Schedule 2 in the first place. 9. Taking the Council’s argument first, it is right that before considering whether the conditions relating to the requirement for prior approval were met; it is necessary to consider whether the proposal fell within the description of development that was permitted by Class A (as set out in para.7 above) in the first place. If it did not then the development could not be permitted by that class and it would be immaterial whether the associated conditions had been met or not.”
[21]Having quoted the definition of “agricultural land” in paragraph D.1 of Part 6, the inspector acknowledged that “in order for the development to be permitted by Class A the land had to be in use for the purpose of an agricultural trade or business beforehand (that is around March/April 2012) and the track had to be reasonably necessary for that agricultural purpose” (paragraph 10). She noted that “[in] appeal decisions relating to the holding dated 12 April 2011, the Inspector … concluded that no agricultural use was taking place and that the land was in use for the keeping of a horse for recreational purposes”. That use, however, had “subsequently ceased”. The “form for prior approval for the track submitted in March 2012 mentions trees, sheep and pigs in connection with agricultural activities taking place on the site at the time”. But it was “known that there were no pigs on the land as Mr Keenan had been banned from keeping them up until September 2012” (paragraph 11).[22]The inspector then referred to Mrs Keenan’s evidence that “at the time of the application for prior approval there were recently planted Christmas trees, 2 sheep and some [chickens] – more than are currently on site” (paragraph 12). She went on to conclude that “the single activity of 600 Christmas trees planted, with another 600 to be planted shortly thereafter, on two small areas of the overall holding with the ancillary grazing of two sheep” was “insufficient to demonstrate that the land was in active use for an agricultural trade or business at the time the application for prior approval was made” (paragraph 14). That conclusion, she said, was “made on the assumption that the activity fallswithin the definition of agriculture”. But in her view “the planting and harvesting of trees falls more readily to be termed as forestry to which Part 7 of [the GPDO 1995] referred” (paragraph 15).[23]She continued (in paragraphs 16 to 19):
“16. Whether the activity fell under Part 6 of the GPDO (and the land was considered to be in use for an agricultural trade or business), or it fell within Part 7; a prerequisite of both Parts was that the proposed development must be “reasonably necessary” for the agricultural or forestry activity (as the case may be) taking place. The growing of Christmas trees with the ancillary grazing of two sheep was the only agricultural or forestry activity shown to have been taking place at the time of the application for prior approval. 17. In connection with that activity, the first area of Christmas trees was planted before the application for prior approval was made without a track. Whilst the second area was planted later, I was provided with no evidence that the track was needed for that particular activity and that is perhaps understandable given that the trees were planted as seedlings. With the sheep brought on to the land to graze between the trees, no significant ongoing maintenance of the trees was described which would require the provision of the track; rather I was told that it would be needed when the trees are harvested. 18. However, as I have indicated, the planted areas are not large and there is already a track running between them on their shorter, respective eastern and western sides. Furthermore, since the application for prior approval was made, the Council has granted permission for a track along the north western side of the south western area of trees [In a footnote here the inspector said that the track was “[to] serve a store building]. I am, thus, only concerned with the extension of that track further to the south west and the track along the north western side of the north eastern area of trees. 19. With regard to the former, the track extension to the southwest, that part projects beyond the area planted with trees and it cannot, therefore, be said to have been necessary for the growing and harvesting of Christmas trees. With regard to the track along the north western side of the north eastern planted area, the trees in this area were planted later, and are very small and are unlikely to be ready for harvest for some time. Even when they are, the area is not large and it is already served by a track on its western side. It has not been demonstrated that it is necessary to have tracks along two sides of this very limited area in order to harvest the trees.”
[24]In the light of that assessment of the evidence, the inspector reached these conclusions (in paragraphs 20 and 21):
“20. I conclude that it has not been shown that the two sections of track attacked in the enforcement notice were reasonably necessary for the purpose of agriculture or forestry (as the case may be) at the time the application for prior approval was made and thus (in addition to my conclusion reached in paragraph 14) they could not be development permitted either by Class A of Part 6 or by Class A of Part 7 of Schedule 1 to the GPDO. The appeals on ground (c) fail. 21. I have noted the [Appellants’] explanation that the track was commenced because no determination or notification from the Council was received within the specified period. However, that cannot make the development permitted when it does not fall within the remit of Part 6 or Part 7 in the first place. Nonetheless it would have assisted if a timely explanation from the Council as to why the application could not be entertained could have been provided to pre-empt abortive works being undertaken. Furthermore I have no idea why the fee was not returned when the application was deemed to be invalid. However, these are matters for the parties involved and are not before me. They cannot influence my conclusion which is that the proposed works did not fall within the description of development permitted by Part 6 or Part 7.”
What was the effect of the council’s failure to respond to Mr Keenan’s application within 28 days?[25]Lang J. distilled the argument before her on the relevant ground of Mr Keenan’s section 289 appeal to this proposition: “once the Council had failed to respond to the application for prior approval within 28 days, the developer was entitled to proceed with the development set out in the application”, and this “achieved the intended certainty and avoided unreasonable delay” (paragraph 87 of the judgment).[26]The judge rejected that proposition. She based her analysis on the conclusion of Ms Frances Patterson Q.C., as she then was, in Lyons v Secretary of State for Communities and Local Government [2010] EWHC 3652 (Admin), that Part 6 presents a sequence of questions for a local planning authority. First, is the land agricultural land? Second, is it comprised in an agricultural unit of 5 hectares or more? Third, is the development “reasonably necessary for the purposes of agriculture within that unit”? (paragraph 92 of Lang J.’s judgment). That approach had been followed by the inspector in this case. It was “only once these requirements were met that the issue of prior approval for the details of siting and construction fell to be considered” (paragraph 93). Lang J. also saw support for the inspector’s approach in the decisions of the Court of Appeal in Clarke v Secretary of State for the Environment (1993) 65 P. & C.R. 85 and the first instance decision in Harrogate Borough Council v Crossland [2012] EWHC 3260 (QB) (paragraphs 94 to 97). In her view, the inspector was “correct to conclude that a local planning authority’s failure to determine or respond to a request for prior approval could not have the effect of bypassing the need to fulfil the conditions upon which development may be permitted under Class A” (paragraph 98).[27]On behalf of Mr Keenan, Mr Jonathan Wills repeated and amplified the argument rejected by Lang J.. He did not seek to attack the inspector’s assessment of the evidence bearing on the ground (c) appeal. Hesubmitted, however, that under both Part 6 and Part 7 of the GPDO 1995 the local planning authority had to consider, during the 28-day period, whether the proposal was permitted development or an application for planning permission was required. As the guidance in Annex E to PPS7 made clear, the whole procedure was intended to achieve certainty without delay. Under Class A of Part 6, the authority had to consider whether the proposal in a “prior approval” application met the criteria in Class A, and was therefore permitted development. Its response under paragraph A.2(2)(iii)(aa) that “prior approval” was not required would be enough to enable the developer to proceed lawfully with the development proposed. And under paragraph A.2(2)(v)(bb) the development had to be carried out in accordance with “the details submitted with the application”.[28]In such a case, Mr Wills submitted, the three matters set out in Lang J.’s sequence of questions would “have been deemed to be satisfied”. But if the Secretary of State were right, even where the local planning authority had stated that no prior approval was necessary, it might still be unlawful to proceed with the development in accordance with the application, and the authority could issue an enforcement notice if the development were considered not to have been “reasonably necessary for the purposes of agriculture within [the] unit” after all. This would undermine the certainty and celerity which the guidance sought to achieve. To gain certainty, the developer would have to make an application for a certificate of lawful development under section 192 of the 1990 Act, or an application for planning permission – either way, a cumbersome exercise. That, Mr Wills contended, cannot be right.[29]Mr Wills said there was no reason to think that, under paragraph A.2(2)(iii)(cc), the authority’s lack of response within 28 days was meant to yield any different result from a notice of its determination under paragraph A.2(2)(iii)(aa) that prior approval was not required. These two provisions were expressed to have the same result. Each would enable the developer to go ahead with the development proposed. Again, to leave in doubt the question of whether the proposed development was “reasonably necessary for the purposes of agriculture within the unit” would go against the intended certainty resulting from a local planning authority’s failure to make any determination within 28 days. Mr Wills relied on the decision of this court in Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367, for the proposition that the permission granted under Part 6 would crystallize immediately when the 28-day period expired, and that the authority could not later assert that prior approval was required (see paragraphs 28 and 40 to 42 of the judgment of Richards L.J., with which Rix and Smith L.JJ. agreed, and the judgment of Laws L.J. in R. (on the application of Orange Personal Communications Services Ltd.) v Islington London Borough Council [2006] EWCA Civ 157, at paragraph 28). The lack of a response to a prior approval application within 28 days would have the effect of “conclusively deeming” that the proposal was permitted development. There was nothing in the other cases to which Lang J. had referred, including Lyons, to disturb that analysis.[30]For the Secretary of State, Ms Estelle Dehon submitted in her skeleton argument that Lang J.’s conclusion on this issue was right, for the right reasons. The inspector’s approach to the ground (c) appeal was correct, and her conclusions on it unimpeachable. Ms Dehon said that Mr Wills’ argument misreads the relevant provisions of the GPDO 1995. The permitted development rights and thus the operation of paragraph A.2(2)(iii)(cc) of Part 6 did not arise unless the “principal tests” applicable under Class A have been met, including that development is “reasonably necessary for the purposes of agriculture within [the] unit”. The same type of “sequential” exercise applies to the corresponding provisions under Part 7. This is so whether or not the local planning authority responds to a “prior approval” application within the 28-day period. The court has recognized that such an application is “invalid from the outset” – as Coulson J. put it in his judgment in Harrogate Borough Council (at paragraph 54) – if the development proposed is not “reasonably necessary for the purposes of agriculture within [the] unit”, and that in those circumstances no planning permission can be said to have arisen even if the application is not responded to (see the judgment of Glidewell L.J. in Clarke, at pp.90 to 92, which remains good law, and the judgment ofMs Frances Patterson Q.C. in Lyons, at paragraphs 24 to 28). The relevant guidance in PPS7, read as a whole, did not indicate, or support, a different conclusion. As Lang J. said (in paragraph 97 of her judgment), the facts in Murrell were “clearly distinguishable from this case where the point at issue is that the proposed development was not permitted within Class A at all”.[31]I cannot accept Mr Wills’ argument, elegantly presented as it was.[32]The true analysis, in my view, is this. Under the GPDO 1995, and now under the Town and Country Planning (General Permitted Development) (England) Order 2015, various kinds of development have been authorized as “permitted development”. Some, though not all, of the classes of development described as “permitted development” in Schedule 2 to the GPDO 1995 were subject to particular conditions, specified class by class. This was expressly contemplated in article 3(2). So too was the provision, again class by class, of any relevant exceptions and limitations. We are concerned in this case with two classes of “permitted development”, Class A of Part 6, and Class A of Part 7, and in particular with development consisting of “the formation … of a private way”, neither of which was unconditional. Both were subject to relevant conditions.[33]Crucially, the grant of planning permission itself came about not through the procedure to be followed under article 3(2) and the specific provisions for “Conditions” in either class, but through the operation of article 3(1) and the provisions for “Permitted development” in that class. To be “permitted development” in the first place, the development in question had to come fully within the relevant description of the“Permitted development” provided for within each class. If it did not, the provisions for “Conditions” applicable specifically and only to “permitted development” as thus defined could not relate to it. The operation of the provisions for “Conditions” did not, and could not, apply to other forms of development outside that particular class of “Permitted development”. Nor did they, or could they, have the effect of enlarging that class. The conditions applied only to development belonging to the class, and not, in any circumstances, to development of whatever kind outside it.[34]If taken out of its proper context, the provision in paragraph A.2(1) in Class A of Part 6 – mirrored in paragraph A.2(1) in Class A of Part 7 – stating that “[development] is permitted by Class A subject to the following conditions …” might be construed, wrongly, as embodying a grant of permission under Class A. But when read in its context, it clearly does not do that. Its meaning, and relevant effect here, is simply that development which is permitted development under Class A, and within the scope of paragraph A.2(2), is subject to the specified conditions.[35]It follows that for the provisions relating to conditions in paragraph A.2(2)(i) in Class A of Part 6, or those in paragraph A.2(1)(a) to (f) inClass A of Part 7, to come into play, the development proposed had to fall squarely within the description of “Permitted development”, in the relevant class.[36]The condition in paragraph A.2(2)(i), 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 tothe “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 – albeit that the guidance in paragraph E14 of Annex E to PPS7 might have been read as encouraging it to do so. 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”. If the authority were to decide that its “prior approval” was not required, the condition would effectively have been discharged and the developer could proceed with the “permitted development” – though not of course with any development that was not “permitted development”. If, however, the authority failed to make a determination within the 28-day period, again the developer could proceed with the “permitted development”, but again not with any development that was not “permitted development”. The developer would not at any stage have planning permission for development that was not, in fact, “permitted development”.[37]The first condition imposed – by paragraph A.2(2)(i) in Class A of Part 6, and by paragraph A.2(1)(a) inClass A of Part 7 – simply prevents the “permitted development” in question being begun. By the condition in paragraph A.2(2)(v) in Class A of Part 6, and the corresponding condition in A.2(1)(e) in Class A of Part 7, if “prior approval” is required, the development must then be carried out in accordance with the details approved, or if “prior approval” is not required, in accordance with the details submitted with the application. But even that condition is, and can only be, a stipulation attached to the planning permission granted by article 3(1) and the “Permitted development” provisions of the relevant class.[38]The provisions relating to conditions in Class A of Part 6 and Class A of Part 7 effectively define the ambit of the local planning authority’s jurisdiction in respect of the several kinds of “permitted development” within the relevant class. They do not expressly, or implicitly, engage any other question, such as whether the development is “reasonably necessary”, respectively, for the purposes of agriculture within the agricultural unit or for the purposes of forestry. The local planning authority does not have the power, under the provisions for conditions in either of these two classes, to vary the terms of the “permitted development” rights within the relevant class. Those provisions do not empower an authority to consider whether permission should be granted for development which is not of the specified type and description: for example, in the case of agricultural buildings and operations, development on an agricultural unit smaller than the specified minimum size of five hectares. The fact that the question of whether development is “reasonably necessary” for the relevant purposes is not merely an objective matter, but involves an element of judgment, does not displace that principle.[39]This analysis, in my view, sits perfectly well with previous relevant authority in this court. It is not inconsistent with Richards L.J.’s judgment in Murrell. In that case, as Richards L.J. observed (in paragraph 1 of his judgment), the proposed development, a cattle shelter on a farm, “was permitted by Class A of Pt 6 of Sch.2 to the [the GPDO 1995], subject, so far as material, to the conditions in para.A2(2) of Pt 6”. The local planning authority, having insisted on the application being made on a particular form, decided that “prior approval” was required and refused that approval on the basis that the proposed development did not comply with a number of development plan policies referred to in the determination. Richards L.J. concluded that, in the circumstances, permission for the development had “accrued” under the GPDO 1995 (paragraph 28 of the judgment). The application had “complied with the requirements of [the GPDO 1995] and was a valid application” (paragraph 33). Where a “prior approval” application had been “duly made” but there had been no notification of determination within the 28-day period, “planning permission … accrues or crystallises on the expiry of the 28-day period” (paragraph 42).[40]None of those conclusions is at odds with the basic principle that development which is not “permitted development” within Class A of Part 6, or Class A of Part 7, cannot become “permitted development”, by default, when the local planning authority does not make a determination within the relevant 28-day period. As Richards L.J. said (in paragraph 45 of his judgment):
“The question of prior approval under para.A2(2) can only arise in respect of “permitted development” within Class A (i.e. development falling within the terms of Class A) and not excluded by para.A1). Such development is permitted subject to the conditions in para.A2, including the condition relating to prior approval, but those conditions do not affect the principle of development. In recognition of the importance of agriculture and its operational needs, the GPDO has already taken a position on the issue of principle. Thus, as the guidance in Annex E spells out, if [the GPDO 1995] requirements are met, “the principle of whether the development should be permitted is not for consideration” in the prior approval procedure (para.E15).”
[41]I do not accept that the analysis I believe to be correct is inimical to certainty and efficiency in the regime for “permitted development”. On the contrary, it seems to me to be entirely compatible with certainty and efficiency. The alternative analysis, in which development that does not fall within Class A of Part 6 or Class A of Part 7 may gain planning permission by default through the operation of the provisions for conditions in those two classes, is not only unsound as a matter of the proper construction of those provisions in their context; it is also wrong in principle. It envisages development outside the range of “permitted development” rights conferred by the GPDO 1995 being deemed to have been granted planning permission simply because the local planning authority had not responded within 28 days to an application for a determination as to whether its “prior approval” of certain details would be required. That would vitiate this part of the statutory scheme.[42]In my view, therefore, the judge was right to reject Mr Keenan’s appeal under section 289. The inspector’s conclusion on the ground (c) appeal was lawful.[43]I should add that I agree with the inspector’s observation (in paragraph 21 of her decision letter) that “it would have assisted if a timely explanation from the Council as to why [Mr Keenan’s] application could not be entertained could have been provided …”. But in view of the planning history of the site it is perhaps not surprising that no such explanation was given, and the fact that it was not given cannot make any difference to the true position in law.

Conclusion

[44]For the reasons I have given, I would dismiss this appeal.[45]I agree.

Cited in 15 later judgments

and 6 more of the most senior