Murrell & Anor v Secretary of State for Communities and Local Government & Anor

An application under the agricultural permitted-development procedure is valid when it objectively satisfies the requirements prescribed by the development order. A planning authority cannot postpone the statutory 28-day period by demanding a particular form or additional information. Nor can agreement, acquiescence, estoppel or absence of prejudice extend that period.

If no determination requiring prior approval is made and notified in time, planning permission accrues on expiry of the period. A later refusal has no legal effect. Where prior approval is considered, the principle of development has already been accepted. The decision-maker must assess only the permitted matters, including siting, design and external appearance, and balance agricultural operational needs against effects on visual amenity and other protected interests.

The appellants proposed an agricultural cattle shelter falling within Class A of Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. They submitted an application asking whether prior approval was required. The council wrongly treated it as invalid, requested a different form and further plans, and subsequently refused approval outside the period calculated from receipt of the original application.

A planning inspector dismissed the appellants’ appeal. Beatson J then dismissed their statutory challenge in the Administrative Court: [2010] EWHC 1045 (Admin). The Court of Appeal had to decide whether the original application started the statutory 28-day period and, if so, whether permission accrued before the council acted. It also considered, although unnecessarily to the disposition, the proper approach to the siting, design and appearance of agricultural permitted development.

1. Appeal allowed. The original application complied with paragraph A2(2)(ii) of Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. It contained the prescribed description, materials, site plan and fee. Neither a current standard form, proposed elevations, a block plan nor multiple copies were mandatory. The application was therefore valid when first received, and the statutory period began then.

2. Validity was an objective question of law. It did not depend upon the authority accepting or validating the application. Although the authority could request further information, that request did not stop time. The appellants’ provision of a new form and further plans neither withdrew nor superseded the original application. The statutory period could not be extended by agreement, common understanding, acquiescence or estoppel. The absence of prejudice was legally irrelevant: the period was fixed by the development order.

3. No determination requiring prior approval was made and notified within the prescribed period. Permission therefore accrued or crystallised on expiry of that period. The council’s later determination and refusal had no legal effect. The inspector should consequently have allowed the appeal because the question of prior approval no longer arose. The inspector’s decision was quashed without remittal.

4. Richards LJ further observed that, in any live prior-approval decision concerning Class A development, the principle of development is settled by the permitted-development right. The assessment of siting, design and external appearance must proceed from that premise. The analogy with approval of reserved matters following outline permission is not exact, but it usefully identifies the restricted nature of the inquiry.

5. The permitted matters require a planning balance between agricultural operational needs and the development’s effects on visual amenity and relevant protected interests. Those judgments belong to the planning authority or inspector and are reviewable by a court only on public-law grounds. The decision-maker must nevertheless adopt the correct perspective. Policies directed to strict control of development in the countryside may be used only so far as they bear upon the permitted matters. Had the substantive issue remained live, the inspector’s failure adequately to demonstrate that approach would also have justified allowing the appeal and remitting the matter.

Smith LJ and Rix LJ agreed with Richards LJ.

1. Court of Appeal (Civil Division): Allowed the appeal in [2010] EWCA Civ 1367 and quashed the inspector’s decision without remittal.
2. Administrative Court: Beatson J dismissed the statutory challenge in [2010] EWHC 1045 (Admin), holding that the authority’s request for further material stopped the clock and that the inspector had addressed the relevant substantive considerations.
3. Planning inspector: Dismissed the appeal against the council’s refusal of prior approval, holding that the procedure had been valid and that the development would adversely affect the countryside.
4. Local planning authority: Determined that prior approval was required and refused it.