Andrew Rickards, R (on the application of) v East Hertfordshire District Council [2025] EWHC 2278 (Admin)

[2025] EWHC 2278 (Admin)Case No AC-2024-LON-002558
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/09/2025
Before
MR. TIM SMITH(sitting as a Deputy High Court Judge)
Between
THE KINGClaimantEAST HERTFORDSHIRE DISTRICT COUNCILDefendantVLADYSLAV PETRYKInterested Party
Mr Wayne Beglan (instructed by Holmes & Hills LLP) for ClaimantMs Claire Nevin (instructed by Sharpe Pritchard LLP) for Defendant for The Interested Party did not appear and was not represented.Hearing Hearing date: 10 th June 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 05/09/2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.MR TIM SMITH (sitting as a Deputy High Court Judge):Introduction
[1]This claim relates to the erection by the Interested Party of three polytunnels and related works (“the Works”) on agricultural land in the administrative area of the Defendant (“the Council”). The polytunnels are intended to be used by the Interested Party for growing tomatillos, a crop which would represent a new type of agricultural use in a location already used for agricultural purposes.[2]The Works have been constructed in reliance upon permitted development rights conferred by the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (“the GPDO”). The particular permitted development rights require a prior approval of details of the siting, design and external appearance of the Works by the Council as local planning authority.[3]Prior approval was obtained by the Interested Party before the Works commenced. The question in this case is whether the process followed by the Council to grant the necessary prior approval was lawful.[4]The Claimant, who lives in a property near to the Works, says not. He brings a judicial review challenge against the grant of the prior approval.

Background Facts

[5]The Interested Party owns land at Bucksbury Farm, Bucks’s Alley, Hertfordshire (“the Property”). The land in the vicinity of the Works includes both open areas and a forested area known as Bayford Wood. The Works sit entirely within an area designated as Metropolitan Green Belt. Bayford Wood has been designated as an “ancient woodland” by Natural England.[6]The evidence records the fact that the Property has hitherto been used for agricultural purposes which include the use of fields for grazing and hay production, for locating bee hives for honey production, and for the cultivation of specialist wood-grown mushrooms. The latter activity takes place wholly inside Bayford Wood itself.[7]The Interested Party has now identified an opportunity to diversify the agricultural uses to which the Property is put. He wishes to cultivate tomatillos, a fruit which originates from Mexico and central America and which is used predominantly in Mexican cooking. Cultivation of the crop in this country requires a protected-cropping regime to be able to regulate the environment in which they grow. To this end the Interested Party sought consent for the erection of three polytunnels, and related hard infrastructure, in which the crop could be grown with some controls over the microclimate.[8]The polytunnels are large. They each measure 32 metres long by 8 metres wide, with an eaves height of 3.2 metres and a ridge height of 4.9 metres. They are positioned side by side. There is no dispute that they constitute “buildings” for the purposes of planning control.[9]Land which is used for agricultural purposes benefits from certain permitted development rights, meaning, in effect, that planning permission is deemed to be granted for certain identified works meeting specified criteria without the need for planning permission to be obtained upon application. Any such permission is deemed to be granted subject to certain specified conditions.[10]Permitted development rights for development associated with agriculture is now found in Part 6 to the GPDO.[11]Part 6 has five different Classes of permitted development. This case concerns development said to fall within Class A, which (so far as is relevant to this claim) states as follows:
“Class A – agricultural development on units of 5 hectares or more A. Permitted development The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of— (a) works for the erection, extension or alteration of a building; or (b) any excavation or engineering operations, which are reasonably necessary for the purposes of agriculture within that unit. . . . A.2— Conditions . . . (2) Subject to sub-paragraph (3), development consisting of— (a) the erection, extension or alteration of a building; (b) the formation or alteration of a private way; is permitted by Class A subject to the following conditions— (i) the developer must, 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 as to the siting, design and external appearance of the building, the siting and means of construction of the private way, the siting of the excavation or deposit or the siting and appearance of the tank, as the case may be; . . . (iv) where the local planning authority give the applicant notice that such prior approval is required, the applicant must- (aa) display a site notice by site display on or near the land on which the proposed development is to be carried out, leaving the notice in position for not less than 21 days in the period of 28 days from the date on which the local planning authority gave the notice to the applicant; and (bb) where the site notice is, without any fault or intention of the applicant, removed, obscured or defaced before the period of 21 days referred to in subparagraph (iv)(aa) has elapsed, the applicant is treated as having complied with the requirements of that subparagraph if the applicant has taken reasonable steps for protection of the notice and, if need be, its replacement; ...”
A.2— Conditions

is permitted by Class A subject to the following conditions—

[12]Part 6 includes a section on the interpretation of terms used in Classes A to C as follows:
“D.1— Interpretation of Classes A to C (1) For the purposes of Classes A, B and C— “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; “agricultural unit” means agricultural land which is occupied as a unit for the purposes of agriculture, including— (a) any dwelling or other building on that land occupied for the purpose of farming the land by the person who occupies the unit, or (b) any dwelling on that land occupied by a farmworker; . . . “site notice” means a notice containing— (a) the name of the applicant, (b) the address or location of the proposed development, (c) a description of the proposed development and of the materials to be used, (d) a statement that the prior approval of the authority will be required as to the siting, design and external appearance of the building or, as the case may be, the siting and means of construction of the private way, (e) the name and address of the local planning authority, and which is signed and dated by or on behalf of the applicant” and which is signed and dated by or on behalf of the applicant”
[13]It will be seen that Class A permits the “erection, extension or alteration of a building”. It is to be contrasted with Class B rights (“agricultural development on units of less than 5 hectares”) where, so far as buildings are concerned, the rights are confined to the “extension or alteration of a[n existing] building”, and no new buildings are permitted without an express grant of planning permission.[14]It will be seen that the differentiating factor between Class A and Class B is the size of the agricultural unit in question. Only if the unit is 5 hectares or more in size may new buildings be erected.[15]On 25th March 2024 the Interested Party submitted to the Council an application (“the Application”), pursuant to paragraph A.2(2)(b)(i) of the GPDO, to determine whether prior approval to the various matters referred to in that paragraph was required. The application was accompanied by an application form, a supporting Planning Statement prepared for the Interested Party by Kernon Countryside Consultants Limited (“the Planning Statement”), a site location plan, a block plan of the area to be developed, and an elevational drawing of the polytunnel structures.[16]The site location plan was at a scale of 1:1250 at A3 size. It showed, edged in red, the area proposed for carrying out the Works. It also showed, edged in blue, the land outside of the application site that was also owned by the Interested Party (although the scale of the plan meant that it was not possible to show the full extent of that other land). It showed the highway known as Bucks Alley running along the southern boundary of the red and blue land. It also showed, at the western edge of the plan, the location of the Claimant’s property, which is known as “The Gage”. The Gage is a Grade II listed building.[17]The Planning Statement included commentary on both the “pre-requisite criteria” for Class A permitted development rights to be available for the Works in the first place, and the “discretionary criteria” concerned with the siting, design and external appearance of the Works.[18]In relation to pre-requisite criteria the Planning Statement noted as follows:
“4.3 The definition of agricultural land for the GPDO is land in use for agriculture for the purposes of a trade or business. That trade or business does not have to be of a large scale, but it must be more than a hobby. The land is used to produce hay for sale, and grass for grazing, and there are large numbers of hives used to produce honey for sale. Mushrooms are grown in the ancillary woodland. This is agricultural land in use as a trade or business. 4.4 Agricultural land means land occupied as a unit for the purposes of agriculture, and can include a dwelling or building used for farming. The holding is used for hay and honey production (there are currently 12 hives), as well as some speciality wood-grown mushrooms (inoculated into logs), and extends in total to just over 8 hectares. The number of hives will increase, and bees are needed to pollinate the tomatillos. 4.5 The land includes woodland used as part of the agricultural enterprises, for the production of honey and mushrooms. These woods are used for or are ancillary to the agricultural activities, and fall within the definition of agriculture in the Town and Country Planning Act 1990. 4.6 The production of tomatillo needs a protected-cropping regime, as proposed. Horticultural production falls fully within the definition of agriculture, and the buildings are clearly reasonably necessary for the purposes of agriculture. 4.7 Accordingly the development is permitted development in principle”
[19]In relation to discretionary criteria the entirety of the commentary in the Planning Statement was as follows:
“4.9 Siting and External Appearance of the Building. The siting of the building is well screened, on a site with strong and tall vegetative screening, with no views in from outside except through the roadside hedge, which is thin in places. 4.10 The siting should not require approval. The design and external appearance is a low, typical horticultural building, and will not affect any skyline or other important views. This should be approved, if prior approval is required. 4.11 Siting and Means of Construction of the Private Way. The short track runs from the gateway to the building, parallel to the field edge. The siting should be acceptable. The gateway is existing, and is lawfully used for agricultural use. 4.12 The track will involve the laying of a stone or rubble base using natural gravel as much as possible, with a top coating of road planings, typical of farm track and versatile and useable. This should not require the Council’s prior approval. Conditions 4.13 Prior approval can be given subject to conditions. A landscaping condition for planting along the roadside hedge could be applied, if required. The Applicant plans to plant that area with a belt of vegetation about 2-3m deep”

Conditions

[20]The Application was considered by Ms Oswick, a planning officer employed by the Council (“the Officer”). The Officer drafted a Delegated Report (“the Report”) in which she considered the application and made a recommendation to Ms Clifton-Brown, described in the Report as the “authorising officer”, to make a decision under delegated powers. It is common ground that neither Ms Oswick nor Ms Clifton-Brown undertook a site visit at any stage.[21]The Report recorded the planning history of the Property. It then summarised the details of the application and of some of the planning designations affecting the Property, recording correctly that it sat within the green belt. The Report then set out the relevant parts of Part 6 Class A of the GPDO.[22]A number of themes were then considered in the Report.[23]One theme concerned the size of the agricultural holding and the Report recorded the fact that the Interested Party had been asked to provide supplementary details after the Application was submitted. The Report stated:
“It is noted that within the submitted location plan, the blue line (showcasing the ownership of the land) measures shy of 5 hectares. However, it was understood that this did not reflect the entire extent of the holding, and displays only the land capable of being shown within the scale of 1:1250. As such, a further document was requested. The agent supplied two further site plans which outline the full extent of the site, one of which being a land registry document, on the 23rd March 2024. These are considered to be sufficient. It can therefore be agreed that the agricultural unit exceeds 5 hectares. Therefore, on the balance of probabilities, it is considered that the site is within an agricultural unit of more than 5 hectares in area, and as such can be considered under Class A”
[24]A second theme concerned the justification of “reasonable necessity” for the Works advanced in the Application documents. Having quoted from the Planning Statement the Report then commented:
“The growing of tomatillos appears to be a new venture for this agricultural business, which has been outlined to relate currently to hay production, grazing, wood-grown mushrooms, and honey production. The production of tomatillos is solely an agricultural undertaking and would relate to the agricultural use of the land. The production will also tie in with the keeping of bees at the site, which have been outlined as necessary for the pollination of the tomatillos. The erection of the polytunnels is considered to be reasonably necessary for the agricultural business to grow the tomatillos and can therefore be accepted. It is understood that the planning statement lacks detail, however the LPA has no justified reason to dispute the reasons given. Therefore, on the balance of probabilities, it can be determined that the development is reasonably necessary for the purposes of agriculture”
[25]A third issue considered by the Report was the proposed siting, design and external appearance of the Works. Noting the requirement for the Council to consider whether prior approval was necessary for the Works, the Report went on to assess the siting, design and external appearance in this way:
“The proposed polytunnels shall have a depth of 32 metres, a width of 24 metres and maximum height of 4.9 metres. It is noted that this is a large structure that would interrupt the openness of the Green Belt, however polytunnels are not uncommon in rural and agricultural areas and it is not therefore considered that it would result in demonstrable harm to the character and appearance of the area in this case. It is also apparent that there is landscaping separating the site from Bucks Alley. As such, this shall aid in obscuring the prominence of this structure to the public realm. The polytunnels will still be visible, however this is not considered to detrimentally impact any significant views, or character. The siting, design and external appearance of the building would be appropriate to this rural setting, with the character and appearance of the site and the surrounding area not unduly harmed”
[26]The overall conclusion in the Report was expressed in these terms:
“In summary, the site constitutes agricultural land comprised in an agricultural unit of 5 hectares or more in area. Therefore, the erection of polytunnels and an access track falls to be considered under Schedule 2, Part 6, Class A of the [GPDO]. The proposal is considered to be reasonably necessary for the purposes of agriculture within the unit. The proposal complies with the limitations and conditions of A.1 and A.2. The siting, design and external appearance of the development is acceptable, with the character and appearance of the site and the surrounding areas not unduly harmed. It is recommended that prior approval is granted”
[27]This recommendation was accepted, and the authorising officer granted prior approval on 25th April 2024.[28]Thus it will be seen that, in response to the Application, the conclusion of the Officer was that prior approval was required but that it should be granted in accordance with the details shown in the Application. There is no dispute between the parties that this is permissible in principle as a potential outcome of the Application. Where they differ is whether on the facts this outcome was justified.[29]The Council having concluded that prior approval was necessary, the requirement in A.2(2)(iv)(aa) was that a site notice should be erected and maintained for 21 of the next 28 days giving notice of that fact. The duty to erect a site notice rested with the Interested Party as applicant, not with the Council. It is common ground that no site notice was erected.[30]The unchallenged evidence in this case is that nobody became aware of the Council’s decision until 18th June 2024, when a local resident observed heavy machinery on the Property. The evidence also shows that on 23rd June another local resident, concerned by what appeared to be preparations for unauthorised development at the Property, contacted the Council’s Enforcement Team. On 26th June the Enforcement Team sent an email to that resident agreeing to investigate the complaint and to undertake a site visit. It appears that the Interested Party disclosed the prior approval to the investigating enforcement officer when he visited the Property.[31]The evidence from the Claimant is that he himself did not become aware of the prior approval until 4th July 2024.

These Proceedings

[32]On 26th July 2024 the Claimant filed a claim for judicial review. Whilst this was within 6 weeks of the Claimant becoming aware of the circumstances of the case, it is accepted that it was more than 6 weeks after the date of the prior approval. The claim form included an application for an extension of time to bring the claim.[33]The claim included five grounds which I summarise as follows: a) Ground 1: unlawful conclusion that the agricultural unit in question was at least 5 hectares b) Ground 2: failure to require sufficient information to allow a lawful decision to be made on the application c) Ground 3: failure to take account of the potential impact of the development on the Bayford Wood ancient woodland d) Ground 4: failure to take account of the potential impact of the development on the setting of the Claimant’s listed building e) Ground 5: failure to provide adequate reasons for the decision[34]The claim was considered on the papers by Mr CMG Ockelton (sitting as a Deputy Judge of the High Court). By his Order dated 14th October 2024 he refused permission to bring the claim on all grounds. One can infer from the terms of his Order that the application for an extension of time was also refused, although it is clear that permission was refused on the merits of the claim.[35]The Claimant renewed his application for permission to an oral hearing. It was considered by Mr Dan Kolinsky KC (sitting as a Deputy High Court Judge). By his Order dated 7th February 2025 Mr Kolinsky KC granted the application for an extension of time. He also granted permission to proceed with judicial review on Grounds 1 to 4, refusing permission on Ground 5.[36]In relation to the extension of time it is relevant to note (from paragraph 4 of his Order) that Mr Kolinsky KC relied upon the assumption at the time that the Interested Party had not erected the required site notice. He indicated that if the Defendant or Interested Party introduced contrary evidence then the extension of time application could be reconsidered. As it turns out, neither of them have done so. Indeed Ms Nevin (who appeared for the Council) was willing to accept that no site notice was erected and that the Council would not contest the grant of an extension of time.[37]On this basis the claim came before me for substantive hearing.[38]I turn now to consider the submissions of the parties in relation to the four grounds that are pursued. Ground 1 - unlawful conclusion that the agricultural unit in question was at least 5 hectares Claimant’s submissions[39]For the Claimant Mr Beglan noted that the Officer had initially been unsure whether the application plans submitted with the original application demonstrated that the size of the agricultural unit was at least 5 hectares. This criterion is important since – as I have noted above – only units which are least 5 hectares in size benefit from permitted development rights for the creation of new units.[40]Having identified a deficiency in the application material, Mr Beglan submitted that the Officer nevertheless erred in treating the supplementary plans as being sufficient evidence to overcome her concerns. In particular, the supplementary plans said nothing about the use to which the land was put, and from a simple calculation it was evident that a majority of the suggested 5 hectares would have to be comprised of activities said to be undertaken within Bayford Wood itself.[41]With something as important as the size of the unit, submitted Mr Beglan, it was especially important that the Officer be satisfied that the evidence showed the relevant criterion to be satisfied.[42]Mr Beglan referred to other case-law which had considered the eligibility for permitted development rights based on agricultural use. One such case was R v Sevenoaks District Council, ex p Palley [1994] EGCS 148. In Palley, May J had warned that considering eligibility for permitted development rights may involve some complexity which may require a site visit to resolve.[43]Despite this warning, submitted Mr Beglan, no officer of the Council had visited the site prior to a decision being taken and the sparse documentation submitted with the Application contained little material upon which such a judgement could be based. Indeed, Mr Beglan went so far as to submit that there was “nothing of substance” to indicate that the size criterion was met.[44]For these reasons, submitted Mr Beglan, the conclusion of the Officer on this point was illogical or unreasonable, and therefore unlawful.

Defendant’s submissions

[45]For the Council Ms Nevin submitted that the Claimant did not come close to clearing the high hurdle necessary for an irrationality challenge on the facts.[46]The Officer was right to ask for supplementary information to satisfy her that the unit size was indeed in excess of 5 hectares. It was reasonable to conclude based on the original and supplementary material submitted with the Application that the unit size was at least 5 hectares.[47]Ms Nevin noted the submissions made by the Claimant based on prior case-law. However, she submitted that there was nothing in that case-law to establish a general principle that site visits should be undertaken, nor further supporting documents provided, before a logical conclusion about the size of an agricultural unit could be reached. Palley could certainly not be interpreted in this way.[48]Moreover, submitted Ms Nevin, the approach urged by the Claimant was at odds with the “light-touch” approach which is appropriate for prior approval applications as compared with (for example) the approach to planning applications. Guidance to this effect is found in the Planning Practice Guidance (“PPG”) as follows:
“Is a prior approval application like a planning application? The statutory requirements relating to prior approval are much less prescriptive than those relating to planning applications. This is deliberate, as prior approval is a light-touch process which applies where the principle of the development has already been established. Where no specific procedure is provided in the General Permitted Development Order, local planning authorities have discretion as to what processes they put in place. It is important that a local planning authority does not impose unnecessarily onerous requirements on developers, and does not seek to replicate the planning application system. Paragraph: 028 Reference ID: 13-028-20140306 Revision date: 06 03 2014”
Paragraph: 028 Reference ID: 13-028-20140306 Revision date: 06 03 2014” Ground 2 - failure to require sufficient information to allow a lawful decision on the application to be made Claimant’s submissions

Paragraph: 028 Reference ID: 13-028-20140306

[49]This ground related to more than just evidence about the size of the agricultural unit.[50]Mr Beglan submitted that the Officer, having identified what Mr Beglan characterised as “obvious deficiencies” in the Planning Statement and other application documents, nevertheless failed to request additional information that would have overcome those deficiencies. As a consequence, submitted Mr Beglan, “important questions directly related to the statutory question it had to answer” were unable to be answered by the Council in reaching its decision.

Defendant’s submissions

[51]Ms Nevin submitted that, properly construed, the comments from the Officer about a lack of detail in the Planning Statement were confined to details about the intended tomatillo business. She added that the Officer nevertheless felt able to reach a reliable conclusion about the nature of the business, relying upon the remainder of the Planning Statement and the other documents comprised in the Application.[52]Ms Nevin further submitted that there could be no suggestion of a failure by the Council to discharge its duty of sufficient enquiry under the principles of Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014. The principles in Tameside could not be divorced from the general concept of irrationality, which the Claimant was a long way from demonstrating on the facts. Ground 3: failure to take account of the potential impact of the development on the Bayford Wood ancient woodland Claimant’s submissions[53]Mr Beglan noted that the Council’s decision on the Application had been that prior approval to the design, siting and external appearance of the Works was needed, but went on to decide that those details were to be approved in accordance with the details submitted with the Application. But – he submitted – in considering whether to approve the details the Council had failed to consider the impact which the Works may have on the ancient woodland. That amounted to an error of law.[54]Mr Beglan noted that there was guidance on the considerations that needed to be made when dealing with a prior approval application contained within Annex E (“Permitted Development Rights for Agriculture and Forestry”) to Planning Policy Guidance Note 7 (“PPG7”). These considerations included the impact of the development on visual amenity and landscape features. Although that guidance had been cancelled as part of the National Planning Policy Framework (“NPPF”), it still represented good practice and hence it should continue to be observed here.[55]In particular Mr Beglan referred to the following passages from Annex E to PPG7 (the part relied upon by Mr Beglan is as highlighted below but I have provided the full extract for context):
“E15. Provided all the [GPDO] requirements are met, the principle of whether the development should be permitted is not for consideration, and only in cases where the local planning authority considers that a specific proposal is likely to have a significant impact on its surroundings would the Secretary of State consider it necessary for the authority to require the formal submission of details for approval. By no means all the development proposals notified under the Order will have such an impact. 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; to the need to avoid imposing any unnecessary or excessively costly requirements; and to the normal considerations of reasonableness. However, they will also need to consider the effect of the development on the landscape in terms of visual amenity and the desirability of preserving ancient monuments and their settings, and sites of recognised nature conservation value. They should weigh these two sets of considerations. Long term conservation objectives will often be served best by ensuring that economic activity, including farming and forestry which are prominent in the rural landscape, is able to function successfully … E22. The arrangements do not impose full planning controls over the developments to which they apply – those developments remain ‘permitted development’ under the General Permitted Development Order. The principle of development will not be relevant providing the Order conditions are satisfied, nor will other planning issues. When details are submitted for approval under the terms of the Order, the objective should be to consider the effect of the development upon the landscape in terms of visual amenity, as well as the desirability of preserving ancient monuments and their settings, known archaeological sites, listed buildings and their settings, and sites of recognised nature conservation value … Details should be regarded in much the same light as applications for approval of reserved matters following the grant of outline planning permission …”
[56]The Planning Statement did not refer to the fact that Bayford Wood was an ancient woodland and there was, submitted Mr Beglan, no hint to be found anywhere in the Report that the Officer had considered the impact of the design, siting and external appearance of the Works upon it. Instead, Mr Beglan noted, the Report merely recited the generic justification that “polytunnels are not uncommon in rural and agricultural areas”, and even this was merely in the context of assessing the impact on the openness of the green belt.[57]Mr Beglan added that policy guidance in paragraph 186(c) of the NPPF, as understood alongside the guidance in the PPG, established that development resulting in the loss or deterioration of irreplaceable habitats should be refused otherwise than for exceptional reasons and where a suitable compensation strategy was in place.

Defendant’s submissions

[58]For the Council Ms Nevin submitted that the starting point for considering this ground of claim was that the principle of development was already established by the GPDO. That being so, she submitted, the level of detail required as part of the prior approval process embedded into Part 6 was much less than was required for a planning application.[59]To require more detail than had been submitted would contravene the guidance in the PPG reminding the Council that the prior approval process was not the same as the planning application process. In support of this submission Ms Nevin relied again on the passage from the PPG at Paragraph: 028, which I have already quoted above in the context of Ground 1, and in particular the reference to the “light-touch” process pertaining to prior approval applications.[60]What is more, submitted Ms Nevin, the Report did include an assessment of the impact of the Works on the “character and appearance of the site and the surrounding area”, concluding that the impact was acceptable, and that because the ancient woodland formed part of the “surrounding area” this conclusion could reasonably be interpreted as encompassing the ancient woodland as well.[61]Ms Nevin submitted that no more than a permissibly benign reading of the Report was necessary to reach that conclusion. Ground 4: failure to take account of the potential impact of the development on the setting of the Claimant’s listed building Claimant’s submissions[62]In substance the Claimant’s complaints ventilated through Ground 4 were similar to those in Ground 3, namely the failure to have regard to the impact of the Works on (in this instance) a designated heritage asset.[63]The Claimant’s property is a listed building. Mr Beglan submitted that it was therefore incumbent on the Officer to assess the impact of the Works on this building specifically. The presence of a listed building is mentioned nowhere in the Report. The generalised references in the Report to impacts on “the surrounding area” and “any significant views” are insufficient, especially given the policy guidance in paragraphs 205-206 of the NPPF emphasising the particular importance of considering harm to listed buildings caused by development.[64]Mr Beglan added - pre-emptively - that to the extent the Council chose to defend this ground by reference to the mitigation that would be provided by the landscape screening proposed along Bucks Alley, any such reliance was misplaced. Read properly, the paragraphs in the Report suggesting the effectiveness of this mitigation applied not to impacts on the character and setting of the listed building but to the impact on views of the green belt from the publicly accessible Bucks Alley. The topography of the overall site, which sees The Gage at an elevated level above the Works, meant that landscaping along Bucks Alley could in no way mitigate the impact of the latter on the former.

Defendant’s submissions

[65]For the Council Ms Nevin responded by saying that the appraisal of the impact of the Works on “the surrounding area” and “any significant views” incorporated an assessment of impact on the listed building. The Gage was undeniably part of “the surrounding area” and so a benevolent reading of the Report showed that there had indeed been an assessment of the impact on the listed building as policy required.[66]Ms Nevin added, as with her response Ground 3, that to require more of the Council would be to unreasonably seek to replicate the level of detail required in a planning application. Discussion and conclusions Ground 1

Discussion and conclusions

[67]I accept that the intent behind the prior approval process for permitted development rights is to create a more streamlined process than applies to planning applications. It would be wrong to judge the rigour of that process, or the rationality of a local planning authority’s decisions relating to it, according to the same standards as pertain to decisions on a planning application.[68]Crucially, with permitted development rights, the principle of development is already established by statute. What is left is to consider how that development should be implemented. This is often achieved for various different criteria by a ‘prior approval’ process. That process is used to determine, for example, how identified impacts of the permission deemed to be granted can best be mitigated, but it cannot take away the deemed grant of permission since that derives from statute. It is, as it were, a question of “how” not “if”.[69]In cases where a prior approval is part of the process there are two parts: deciding whether prior approval is needed, and (if so) deciding whether it should be granted in line with the details submitted by the applicant. It is established law that the two parts of the process can lawfully be considered together (see R (Smolas) v Herefordshire Council [2021] EWHC 1663 Admin at [73], per Lang J).[70]Consistent with the above principles, policy guidance in the PPG on how to administer the prior approval process acknowledges that (by comparison with a full planning application process) the process demands a “light touch”. Ms Nevin for the Council placed considerable emphasis on this guidance as part of her submissions.[71]But there is a note of caution to sound about the “light touch” approach. In oral argument Ms Nevin sensibly agreed that “light touch” does not equate to “no touch”. A light touch approach still demands an appropriate amount of rigour. Lang J considered this point specifically in Smolas, noting (at [82]):
“The Claimant relied upon the guidance in the PPG that prior approval is a “light touch” process and should not place onerous requirements on developers. However, the complexity of the requirements in the GPDO, and in the Planning Inspectorate’s application form, mean that, in reality, these applications are far from straightforward”
[72]As with all applications in the wider system of planning, prior approval applications bear upon a number of competing interests – for example, of the developer and neighbouring landowners - and so there must be proper mediation between those interests. There is therefore a distinction to be drawn between (on the one hand) considering whether permitted development rights apply and (on the other hand) the details of the development subject to which those rights are exercised. Clearly a light touch is far less appropriate to determining the first of these – something which Lang J in Smolas described as the “definitional requirements for permitted development”.[73]In both his written and oral submissions Mr Beglan for the Claimant relied upon the case of R v Sevenoaks District Council, ex parte Palley [1994] EGCS 148. That case also considered the operation of what was then Part 6 of the Town and Country Planning (General Development) Order 1988 (“GDO”). The rights being relied upon in that case were for development on an agricultural unit of at least 5 hectares. In purported reliance on those permitted development rights the interested party in the case had built a glasshouse on his agricultural unit. The permitted development rights in question involved a prior approval procedure for the proposed development. Permitted development rights were disallowed on land which was within 25 metres of a classified road. The interested party’s application for prior approval was initially rejected by the local planning authority because it breached this criterion, although he later submitted further details showing the siting of the building and a measurement of the distance from the road confirming that the local authority had been mistaken when refusing the first application. In accepting that it had made a mistake regarding proximity to a classified road, the local authority required no further details to be submitted with the second prior approval application. It did not, for example, ask for any further details of whether the land in question was “agricultural land” within the requisite definition used by the 1988 Order. The court upheld Mr Palley’s challenge, holding that the local authority had unlawfully failed to interrogate whether (to adopt Lang J’s later term) the definitional requirements for the permitted development rights were established.[74]Mr Beglan relied on the case of Palley in support of submissions relating to both of his Grounds 1 and 2. He noted, for example, the following passage from the judgment of May J in Palley on page 14 The report of the case does not include paragraph numbers :
“A question whether land is in use for agriculture and so used for the purposes of a trade or business is not likely to be a straightforward paper enquiry. It may require site inspections and consideration of a range of facts and perhaps documents by suitably qualified people”
[75]Mr Beglan’s primary complaint under Ground 1 was that the material before the Council could not lead it rationally to conclude that the size of the agricultural unit exceeded 5 hectares, such that permitted development rights were available for the erection of a new building. In oral argument Mr Beglan submitted that there was “nothing of substance to indicate that the size criterion was met”. That, he submitted, made the decision to grant prior approval irrational.[76]I cannot agree with this submission.[77]In the prior approval application form, in answer to the question “What is the total area of the entire agricultural unit?” the answer was given as “8.0 [hectares]”. There is a declaration at the end of the application form in which the author of it has to tick a box to confirm his or her agreement with a series of statements, one of which is “I/We confirm that, to the best of my/our knowledge, any facts are true and accurate and any opinions given are the genuine opinions of the person(s) giving them”. In addition, paragraph 4.4 of the accompanying Planning Statement reads “The holding is used for hay and honey production (there are currently 12 hives), as well as some speciality wood-grown mushrooms (inoculated into logs), and extends in total to just over 8 hectares”. Each of these extracts represents evidence that the holding is in excess of 5 hectares.[78]At no point has the Claimant advanced a positive case to say that the size of the unit is not over 5 hectares. He does not produce any evidence to gainsay what is said in the application material. He does not, for example, say to the Council or to the court “I know this woodland and there is no way that this much of it is used for agricultural purposes”.[79]It is apt to note the conclusion of Lang J in Smolas, which was to the following effect (at [84]):
“In my view, this appraisal [of whether permitted development rights were available] was a legitimate exercise of the planning officer’s judgement, which the delegated decision-maker accepted when making the decision. The Council was entitled to conclude that it had insufficient evidence to satisfy it, as the onus of establishing permitted development was on the Claimant”
But although the outcome in Smolas was that the decision-maker had rationally concluded that the criteria for permitted development had not been met, applying the same guidance it is no less legitimate for the Officer in this case to conclude in the exercise of her planning judgement that she did have sufficient evidence to demonstrate that the 5 hectare criterion had been met.[80]Despite the emphasis that Mr Beglan placed on the case of Palley I have derived limited assistance from it in this case. In my judgement, relative to this case Palley does not establish any particular principle beyond the general principles of planning law. I observe in passing that the factual circumstances in Palley were very different from the facts of the present case. In Palley there had been a long and testy history between the claimant and the interested party, and the factual contentions relied upon by the interested party were very much disputed by Mr Palley. The local authority was on notice that it had a conflict of evidence to mediate, yet it was willing to accept prior approval details from the applicant that were insufficient to assist with the mediation.[81]Mr Beglan did not go so far as to submit that, having regard to Palley, a site visit would always be required or that it should be the norm, but he did submit that in this case one should have been undertaken. I do not agree. There was no disputed fact which only a site visit was capable of resolving. Moreover, although he disavowed this intention, at times it appeared that Mr Beglan’s submissions led logically to the conclusion that – even absent any controversy – the Council should have sought corroboration of the applicant’s information supporting the 5 hectare criterion. I reject that outcome firmly. That would be to place a disproportionate and unnecessary burden on a local planning authority which has no support in the legislation or the applicable guidance.[82]For these reasons Ground 1 fails.

Ground 2

[83]There are some similarities between Ground 1 and Ground 2. Both relate to the material before the Council regarding the 5 hectare site size, but Ground 2 focuses more on whether the Council acted rationally in not requiring the Interested Party to provide more information.[84]In particular the Claimant’s complaint is that, having apparently identified a need for more information from the applicant to demonstrate that the size of the agricultural unit was at least 5 hectares, the Council acted irrationally because the new information which it in fact received did not contribute to its understanding of the point.[85]Mr Beglan also raised a secondary complaint about whether the Council properly informed itself of whether the new activities would constitute use for the purposes of an agricultural trade or business, and thus take place on “agricultural land” within the meaning of paragraph D.1 of the GPDO. This complaint related to an apparent concern by the Council that there was insufficient information available about the nature of the new tomatillo cultivation.[86]The new material provided to address the site size query comprised Land Registry title information. Whilst this provides evidence of the common ownership of the wider site and the land shown on the larger scale application plan, I agree that it is not determinative of the use of that land.[87]Mr Beglan submits that, having identified a gap in the evidence (which presumably the Officer felt it necessary to fill), it was irrational for her then to conclude that that gap was filled by the receipt of evidence which was incapable of doing so.[88]In my judgement one needs to be cautious before jumping to that conclusion.[89]As I have noted above in discussing Ground 1, there was other evidence available to the officer to confirm that the size of the unit was at least 5 hectares. I remind myself that the passage in the Report to which reference has been made states as follows (with my emphasis):
“It is noted that within the submitted location plan, the blue line (showcasing the ownership of the land) measures shy of 5 hectares. However, it was understood that this did not reflect the entire extent of the holding, and displays only the land capable of being shown within the scale of 1:1250. As such, a further document was requested. The agent supplied two further site plans which outline the full extent of the site, one of which being a land registry document, on the 23rd March 2024. These are considered to be sufficient. It can therefore be agreed that the agricultural unit exceeds 5 hectares”
[90]It does not take much to interpret this passage as being no more than the Officer querying the previous references to a site larger than 5 hectares when the total site area in the submitted plans showed not quite 5 hectares. She therefore wished to see evidence that there was a site of at least 5 hectares, and the title information provided satisfied her of that. The Officer was not saying, for example “I can see a large site but I am seeing less than 5 hectares of it in use for agriculture so I need to see more land in use for agriculture before I can be satisfied that the Class A criteria are met”. Instead her question was not about use, it was about plot sizes. In order to be satisfied that there is a 5-hectare site in use for agriculture it is a logical prior question to ask whether there is a site of at least 5 hectares at all, because the only plans, being at a scale of 1:1250, abridged the boundaries of the site and so did not show one.[91]Ms Nevin for the Council relied on the judgment of Underhill LJ in Balajigari v Secretary of State for the Home Department [2019] 4 All ER 998 as authority for the fact that the court has limited jurisdiction to trespass on the assessment of whether the Council had sufficient information to answer its own question. Citing with approval the six-part summary of the Tameside duty, as set out by Haddon-Cave J (as he then was) in R (Plantagenet Alliance Ltd) v Secretary of State for

Justice [2014] EWHC 1662 (Admin), Underhill LJ said (at [70]):

“… subject to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken”
[92]Mr Beglan drew attention to the comment in the Report that “It is understood that the planning statement lacks detail …” and inferred from this that the officer was expressing concerns about whether the 5-hectare criterion could be said to be met. However, that comment appears in the section of the report headed “Is the development reasonably necessary for the purposes of agriculture?”, not the separate section headed “Is the land ‘agricultural land’ in an agricultural unit of 5 hectares or more in area?” The inference which Mr Beglan sought to draw about the absence of sufficient evidence of a 5-hectare agricultural unit cannot, in my judgement, therefore be drawn from this comment.[93]As I have noted above in connection with Ground 1, there was sufficient material available for the Officer to conclude that the 5-hectare criterion was met. Even if I am wrong in my interpretation of the Report, and the Officer did indeed think that she needed more evidence to show the agricultural unit was at least 5 hectares in size, the fact that the additional evidence she procured does not assist with that is not the end of the story. If – as I have concluded in relation to Ground 1 - there was by any objective analysis sufficient evidence to satisfy that criterion from the material already before the Council then the fact that the further evidence did not add to it does not render the Officer’s conclusions irrational.[94]Mr Beglan’s observation that the Planning Statement “lacks detail” does not support his secondary complaint about the absence of evidence of an agricultural trade or business either. The relevant extract from the Report is not suggesting that there is a fatal lack of detail, merely that there is not much of it. But in my judgement it is unarguable that there is insufficient detail in the Planning Statement to allow the Officer to conclude that the new activities did amount to an agricultural business. This is another fact which distinguishes the present case from the case of Palley. There is also no support for the argument that an agricultural process which is new to a site demands a greater degree of scrutiny when applying the criteria in the GPDO.[95]For these reasons Ground 2 fails.

Grounds 3 and 4

[96]Although the subject matter differs, the underlying basis of the arguments in Grounds 3 and 4 are substantially similar. In each case the complaint is that the Officer failed to have regard to a protective designation when deciding whether to grant prior approval or not. I have therefore considered the two grounds together.[97]I begin by reflecting on the relevance of the guidance in Annex E to PPG7, to which Mr Beglan referred me. As I have summarised above, this offers guidance to local planning authorities on how to approach the consideration of prior approval applications which may have an impact upon (per paragraph E16) “sites of recognised nature conservation value” (in this case Bayford Wood, a designated ancient woodland, to which Ground 3 relates) and (per paragraph E22) “listed buildings and their settings” (in this case The Gage, to which Ground 4 relates).[98]It is correct to observe that the entirety of PPG7, including Annex E, has been withdrawn and superseded by the consolidated NPPF and the PPG. Those documents go into much less detail about how to approach applications of this nature, but nothing that they say is inconsistent with the guidance formerly found in Annex E.[99]For example, passages in the NPPF provide as follows:
“186. When determining planning applications, local planning authorities should apply the following principles: … (c) development resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and veteran trees) should be refused unless there are wholly exceptional reasons and a suitable compensation strategy exists … 205. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation …”
[100]Also, the PPG includes the following: “How can local planning authorities assess the potential impact of development proposals on ancient woodland and ancient or veteran trees? Local planning authorities need to consider both the direct and indirect impacts on ancient woodland and ancient or veteran trees when assessing development proposals and the scope for avoiding or mitigating adverse impacts” (Paragraph 033 Reference ID 8-033-20190721)[101]In my judgement the withdrawal of Annex E does not affect materially the assistance it provides to this case. Good practice guidance does not cease to be that just because the policy document in which it is found is later withdrawn. PPG7 was withdrawn not because it was considered to be no longer applicable but because in 2012 the Government had concluded that the lexicon of planning policy should be consolidated, and reduced in size dramatically, by replacing it with the NPPF. The prior approval procedure which it was advising upon is substantially unchanged. The guidance continues to serve as a useful reminder to local planning authorities of how to administer the same sort of application when judged against the same sort of criteria.[102]Ms Nevin’s primary case for the Council was that the Officer accepted the existence of the listed building and the ancient woodland to be material considerations in the prior approval decision, and then to explore how the Officer dealt with them in the Report.[103]At one point in oral argument Ms Nevin offered an alternative submission, namely that the impact on these designations were not considerations so obviously material that regard should be had to them directly (reflecting the judgment of Cooke J in the New Zealand case of CREEDNZ Inc v Governor General [1981] NZLR 172, cited with approval by the Supreme Court in R (Friends of the Earth) v Heathrow Airport [2021] PTSR 190). I reject that submission. Policy and legislation is drafted to emphasise the importance of assessing impacts on these types of designations. The extracts I have given above from the NPPF and the PPG are merely examples of this. The designations are clearly material considerations to which regard must be had. Whilst the range of outcomes on a prior approval application differs from the range of outcomes with a planning application, because in the former case the principle of development is already guaranteed, nevertheless in the latter case an assessment of impacts is still necessary to inform the appropriate impact mitigation strategy that should be employed.[104]I turn therefore to consider Ms Nevin’s primary submission, that the impacts of the development on the listed building and the ancient woodland were material considerations but that they were considered adequately by the Officer. She emphasised – per Underhill LJ in Balajigari – that the nature and extent of the enquiry conducted into this question was a matter for the Officer’s discretion. She highlighted the passage from the Conclusion of the Report, which states that “The siting, design and external appearance of the development is acceptable, with the character and appearance of the site and the surrounding area not unduly harmed”, leading to a recommendation that prior approval be granted.[105]I must say the submission that the Officer did have regard to the impact of the development on the listed building and the ancient woodland is an ambitious one.[106]Without the benefit of seeing the pleadings I would have had no clue at all that there is a listed building and an ancient woodland in the environs of the Works. There is no mention of either designation in the Report. There is no mention of either designation in any of the application material. There is also no assertion in the witness evidence in these proceedings indicating the Officer was aware that The Gage was a listed building or that Bayford Wood was an ancient woodland, despite (as Mr Beglan noted) the fact that the Council’s evidence was compiled after the Statement of Facts and Grounds had been seen and the complaints of the Claimant fully particularised.[107]Ms Nevin urged the court to accept that references in the Report to an assessment of impacts “on the character and appearance of the site and the surrounding area” must be taken to include impacts on the listed building and the ancient woodland. I cannot accept that submission. For this to be the case there would have to be some clues that the Officer was even aware of these designations. There are none. This should be contrasted with comments (admittedly limited, but still present) specifically regarding the green belt status of the area including the Property and of the impact of the Works upon it.[108]The conclusion that I am forced to draw on the evidence is that the Officer was simply unaware that there was a listed building and an ancient woodland to be considered here. That being so, self-evidently it is impossible to infer that she had proper regard to them in reaching the decision to grant prior approval.[109]In reaching this conclusion I am very mindful of the commonly-repeated judicial warning not to apply too stringent a standard to reading officers’ reports. They “are not to be read with undue rigour, but with reasonable benevolence” (per Lindblom LJ in R (Mansell) v Tonbridge BC [2019] PTSR 1452). That approach applies to officers’ delegated reports in the same way that it does to reports written for a decision by members of a Planning Committee (R (Bates) v Maldon District Council [2019] EWCA Civ 1272). I consider that my approach nevertheless heeds this warning. There is a world of difference between a benign reading of what the Report means and a creative re-imagining of what it says. The approach urged by the Council requires the latter.[110]To conclude, in my judgement the impact of the Works on both the listed building and the ancient woodland were material considerations needing to be addressed as part of the prior approval decision. The evidence strongly suggests that this was not done. I am left in doubt from the evidence whether the Officer was even aware that these protective designations were in existence. That is a failing of the Council. Although the applicant did not highlight the existence of these designations either, a local planning authority can be taken to know about those which apply in its local area. For these reasons the prior approval cannot be allowed to stand.[111]Grounds 3 and 4 both succeed.

Aarhus costs protection

[112]Finally I note that there is some remaining controversy between the parties regarding the availability of Aarhus costs protection. In light of the outcome of this claim the arguments about Aarhus may well have become academic, nevertheless I offer some brief comments on the issue before making a ruling.[113]Mr Kolinsky KC’s order granting permission to proceed with judicial review included a ruling that “The claim proceeds as an Aarhus Convention claim”. This is consistent with the application made by the Claimant in the claim form. No figures for the amount of the costs caps were stated in the order.[114]Ms Nevin noted that no statement of financial resources has ever been filed by the Claimant, contrary to CPR 46.25(1)(b). In her skeleton argument she therefore submitted that Aarhus costs protection cannot extend to the claim. Mr Beglan resisted this contention. I heard brief oral argument on the point at the outset of the hearing. The parties agreed that it was appropriate for me to rule on the dispute in my reserved judgment.[115]At the heart of Ms Nevin’s submission was the fact that the requirement to file a statement of financial resources is mandatory if Aarhus costs protection is to be extended. She submitted that the failure does not negate the ability to seek protection once and for all. She did submit (partly in reliance on a judgment of mine – Wesson v Cambridgeshire County Council [2023] EWHC 2801 (Admin)) that a claimant can remedy the error by providing a compliant schedule at a later date, but she noted that there is still no such schedule in this case. Ms Nevin also submitted that there is uncertainty about whether the Claimant is acting on his own account or as the representative of a group. In that regard she drew my attention to the Claimant’s witness statement which includes the comment that the claim “is brought for the benefit of and on behalf of the local residents of Bucks Alley and the nearby village of Little Berkhamsted”. Uncertainty about the status of the Claimant affects the starting point for the applicable costs cap.[116]Responding for the Claimant, Mr Beglan submitted firstly that there is no application on notice to vary the order of Mr Kolinsky KC and that, procedurally, the court should not at this late stage entertain what is in effect an application to vary. Mr Beglan relied on CPR 3.10 and submitted that the failure to observe the prior procedural step of providing a statement of financial means should not automatically result in the order for Aarhus costs protection being set aside.

Decision

[117]In my judgment, the Aarhus costs protection ordered by Mr Kolinsky KC should remain.[118]Whilst it is acknowledged on both sides that there was (and still is) no statement of financial resources filed, equally the protection is clearly granted in a previous order of the court. The application which led to it did not fulfil a prior procedural requirement, but the court has the power to dispense with it. In addition Ms Nevin’s submission is inviting the court to disturb a previous order of the court without a properly made application to vary it. This fact differentiates the present circumstances from the case of Wesson, where the court was being asked for the first time to rule on the availability of Aarhus costs protection with no antecedent order in place.[119]As to the applicable amount, I conclude that it is appropriate to apply the default costs figures in CPR 46.26. The Claimant has not asked for any variation to these default figures. The Claimant is acting as an individual and so the figure applicable to the Claimant’s costs is £5,000 (see CPR 46.26(2)(a)). It is clear that the Claimant is not acting “on behalf of” anybody else, as that term is used in CPR 46.26(2)(a). The reference in the witness statement to which Ms Nevin drew my attention is saying no more than that others beyond just the Claimant will have a common interest in the outcome. The claim was commenced by the Claimant as an individual and that is how the case has been conducted throughout.[120]It follows from this that Aarhus costs protection continues to apply. The costs cap for the Claimant is £5,000 and a reciprocal cap of £35,000 applies to the Council.[121]In light of my findings on both the substantive claim and the satellite costs issue I now invite the parties to agree an appropriate form of order for my approval. ___________________________________

Cited in 1 later judgment