ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Beatson
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE RICHARDS
|(1) David Sidney Murrell
(2)Christine Ruth Murrell
|- and -
|(1)Secretary of State for Communities and Local Government
(2)Broadland District Council
Mr Daniel Kolinsky (instructed by The Treasury Solicitor) for the Secretary of State
The Second Respondent did not appear on the appeal or in the court below
Hearing date : 18 November 2010
Crown Copyright ©
Lord Justice Richards :
The legislative framework
"3.(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 so granted is subject to any relevant exception, limitation or condition specified in Schedule 2."
The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of –
(a) works for the erection … of a building; …
which are reasonably necessary for the purposes of agriculture within that unit."
"A2(2) Subject to paragraph (3), development consisting of –
(a) the erection … of a building; …
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, design and external appearance of the building …;
(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;
(bb) where the local planning authority give the applicant notice within 28 days following the date of receiving his application of their determination that such prior approval is required, the giving of such approval;
(cc) 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.
(iv) (aa) where the local planning authority give the applicant notice that such prior approval is required the applicant shall 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 …."
Annex E to PPG7
E12. In certain cases, the permitted development rights for development on agricultural units of 5 hectares or more and 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, 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.
E17. The 28 day determination period runs from the date of receipt of the written description of the proposed development by the local planning authority. If the local planning authority give notice that prior approval is required they will then have the normal 8 week period from the receipt of the submitted details to issue their decision, or such longer period as may be agreed in writing (see Article 21 of the Town and Country Planning (General Development Procedure) Order 1995) ….
E18. The Secretary of State attaches great importance to the prompt and efficient handling of applications for determination and of any subsequent submissions of details for approval under the provisions of the General Permitted Development Order. Undue delays can have serious consequences for agricultural and forestry businesses, which are more dependent than most on seasonal and market considerations. The procedures adopted by authorities should be straightforward, simple, and easily understood ….
E19. Authorities should prepare forms which developers can use to apply for determination, along the lines of the example in the Appendix. This will help to minimise the number of cases in which submission of details may be necessary. Authorities should acknowledge the receipt of the written description, giving the date of receipt. 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.
E20. There will often be scope for informal negotiations with the developer, as an alternative or preliminary to requiring a formal submission of details. Developers for their part may find it useful to provide more than the minimum information required by the Order when informing authorities of their proposals, if this is readily available. For example, a sketch showing the proposed elevation of a building may clarify the effect of the proposal ….
Scope of controls
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 ….
Siting, design and appearance
E24. Local planning authorities may concern themselves with:
- the siting, design and external appearance of a proposed new agricultural or forestry building and its relationship to its surroundings ….
E27. The siting of a new agricultural or forestry building … can have a considerable impact on the site and the surrounding landscape. Developments should be assimilated into the landscape without compromising the functions they are intended to serve. New buildings should normally form part of a group rather than stand in isolation, and relate to existing buildings in size and colour ….
Design and appearance
E31. The choice of design and materials, and the relationships of texture and colour to existing development, local traditions, and the landscape, can be important considerations for both agricultural and forestry buildings and roads. For example, a single large building may have a greater impact on the countryside than one or more smaller buildings, which can be more easily incorporated into an existing group and provide greater flexibility, although the function of the building will be material to shaping its form ….
Your application has been received and upon inspection it does not comply with the statutory requirements and as such is invalid for the following reasons:
- 4 copies of proposed elevations are required to a scale of 1:50 or 1:100.
- 4 copies of a block plan to a scale of 1:500 are required showing the size and position of the proposed development.
- The Government has introduced new standard planning application forms, which are now the only forms that we can accept. Please complete and return the 4 enclosed application forms.
- Please supply a further 3 copies of the location plan.
The statutory period for determination of your application cannot commence until these requirements have been fulfilled and a formal letter of acknowledgement giving details of the statutory period for the determination of the application will then be sent to you. Please reply to this letter within 14 days from the date specified at the top of the page to inform us if you wish to withdraw the application or proceed."
The letter did nevertheless assign an application number (20081652) to the application.
"The application was validated on 09/12/2008, with fees of £70.00. Every effort will be made to reach a decision within the statutory 28 day period which expires on 05 January 2009".
By paragraph A2(2)(cc) of Part 6, the statutory period ends on "the expiry of 28 days following the date on which the application was received". If a valid application was made on 1 December 2008, the period expired on 29 December.
The appeal to the inspector
"New building development in the open countryside away from existing settlements, or outside areas allocated for development in development plans, should be strictly controlled; the Government's overall aim is to protect the countryside for the sake of its intrinsic character and beauty, the diversity of its landscapes, heritage and wildlife, the wealth of its natural resources and so it may be enjoyed by all."
"10. The appeal site lies within open countryside characterised by large open fields with small woodland areas. … [T]he essential characteristic and appearance of the area is one of an open rural working landscape within which are farm complexes.
11. The appeal site is situated on open rising land. The proposal includes a cattle shed within a new woodland landscape setting. Whilst being designed as an agricultural building, due to its size and prominent position, I consider that it would appear as an unduly prominent form of development, which would have an unacceptably adverse visual impact on this part of the Area of Landscape Value. Therefore, I conclude that the proposal would have an adverse effect on the open character and appearance of the surrounding countryside. This would not be in accordance with the objectives of PPS7 and Local Plan Policies GS1, GS3, ENV1, ENV2, ENV8 and EMP8.
12. Whilst the landscaping details were not submitted with the application, I have been provided with details, which I consider appropriate to take into consideration in my determination of this appeal. These details include new woodland and hedgerow planning. Due to the scale and position of the proposed building, it would be many years before an appropriate substantially significant screen could be established. I consider it unacceptable, due to the adverse visual impact of the proposed building, to allow such development in such an open location, which would be open to public views for a considerable time.
13. I note the presence of large modern farm buildings in the surrounding area, but these are characteristically generally within established farm complexes, rather than isolated buildings.
15. In reaching my conclusion, I have had regard to all other matters raised upon which I have not specifically commented including the need to relocate an existing family beef cattle business. Whilst I recognise the operational needs of the agricultural business, it is necessary to weigh this consideration against the harm I have identified with regard to impact on the character and appearance of the area. In the light of the significant harm I have identified above, I do not consider this matter justifies allowing the appeal."
The case before Beatson J
"34. The Inspector took what I accept is a practical approach. There was certainly no prejudice to the claimants of the sort that the 28-day rule is designed to prevent in this case, because the council acted with speed. The letter indicated that on the material it had, it was not able to state whether prior approval was required. In this context, given the speed at which this letter was sent, and given the common assumption of both parties, the implication must be that the Council had effectively, although not in very straightforward language, stated that they would require prior approval because it did not have enough information to assess this matter.
35. Mr Blackie submitted that if one looks as the regulations, all the Claimants had to do was to provide a written description of the development materials and a plan indicating the site: that is seen from A2(2)(i). The materials submitted must have been ones which enabled the Council to operate the statutory procedure. I conclude that it was entitled to ask for what it asked for, that had the effect of stopping the clock, and therefore the procedural challenge is not made out."
"In this case I accept Mr Kolinsky's submission that the Inspector addressed the right questions. Her failure to refer to Annex E must be seen in the light of the fact that she addressed the criteria set out in it and balanced them. Her reference to the other policies must be seen in the light of the emphasis placed on those policies and their relevance in the submissions of both parties …."
The procedural issue
"In a prior approval case the planning permission accrues or crystallises upon the developers' receipt of a favourable response from the planning authority to his application. I acknowledge the court, in dealing with the conundrum presented by this case, has had to deploy ideas such as accrual and crystallisation which do not appear on the face of the legislation. But the two extremes to which I referred earlier demonstrate the need for an approach to be taken to the statute – notwithstanding that it requires assistance from such sources – that produces in the end fairness and overall conformity with the scheme and the planning legislation."
In reaching that conclusion, Laws LJ considered and rejected a contention that the benefit of the permission did not accrue or crystallise until work had been started (see paras 23 and 25 of his judgment).
The substantive issue
i) She makes no explicit reference to Annex E, the most important policy guidance for the decision she had to make. I accept that there are indications that she had the guidance in mind: in particular, the passage in paragraph 13 of her decision about isolated buildings (cf. paragraph E27 of Annex E) and the passage in paragraph 15 about the operational needs of the agricultural business (cf. paragraph E16 of Annex E). All the same, the absence of explicit reference to Annex E is very surprising and there is insufficient in her reasons to show that she took the guidance properly into account.
ii) The only policy that she actually quotes is key principle 1(iv) of PPS7, which provides for strict control of new building development in the countryside. It is not apposite in the context of a Class A permitted development, and we were told that neither party referred the inspector to that sub-paragraph. The Local Plan policies to which she refers are likewise concerned with the principle of development in rural areas, and a number of them (Policies GS1, GS3 and ENV8) provide that development will not be permitted unless specified criteria are met. It is true, as Beatson J pointed out, that her reference to those policies reflected the cases put to her by the parties, but that does not meet my concern about the use she made of them.
Lady Justice Smith :
Lord Justice Rix: