Murrell & Anor, R (on the application of) v Secretary of State for Communities and Local Government & Anor

Where permitted development under an order is subject to prior approval, the procedure is not equivalent to ordinary outline planning permission. The authority may assess the proposed development’s siting, design and external appearance, including its visual impact on the surrounding landscape.

The decision-maker must balance that impact against the operational needs of the agricultural or other permitted development. A decision is not unlawful merely because it does not cite every relevant guidance paragraph, provided it addresses the substance of the required considerations and gives intelligible reasons on the principal controversial issue. A local planning authority may request information reasonably required to assess prior approval matters, with the effect of stopping the statutory decision period.

The claimants challenged an Inspector’s dismissal of their appeal concerning a proposed cattle shelter on an agricultural holding in Norfolk. They also sought judicial review of the Inspector’s refusal to award them the costs of the appeal.

The statutory appeal under section 288 of the Town and Country Planning Act 1990 raised whether the Inspector had treated the proposal as an ordinary planning application, failed to give adequate reasons, and wrongly concluded that the local planning authority had determined the application within the applicable 28-day period. The judicial review challenge to the costs decision substantially depended on the same issues.

1. Section 288 appeal dismissed. The court applied the restricted scope of a statutory validity challenge. It was not a review of the Inspector’s planning merits, and the high threshold for Wednesbury unreasonableness was particularly difficult to overcome in a case involving expert planning judgments.
2. The permitted development right under Part 6 of Schedule 2 to the Town and Country Planning General Planning Development Order 1995 was conditional on prior approval. It was not equivalent to express, site-specific outline planning permission. Where prior approval was required, permission had not crystallised in a practical sense before a favourable response from the planning authority.
3. The prior approval process involved more than verifying whether the proposal benefited from permitted development rights. It permitted a discretionary assessment of whether the proposal would have a significant impact on its surroundings, including its siting, design, appearance and visual amenity. The Inspector had properly weighed the adverse visual impact of the cattle shelter against the agricultural operational case.
4. The Inspector’s failure expressly to cite Annex E to PPG7 did not invalidate her decision. She had addressed the substance of the relevant considerations, including the effect on landscape and visual amenity, and had given adequate reasons on the principal issue. Planning decision letters are read fairly and in good faith; they are not scrutinised as though they were contracts or statutes.
5. The procedural challenge failed. The authority responded on the day it received the application and reasonably requested further information needed to assess design, siting and appearance. In the circumstances, the request effectively stopped the 28-day period, notwithstanding that the language used was not straightforward.
6. The judicial review application was dismissed. The Inspector had been entitled to conclude that the authority had not acted unreasonably in requesting further information. The defendants were awarded global costs of £9,400. Permission to appeal was granted only on whether the 28-day period had expired before the decision was made.

• Planning Inspector: Janet Cheesley dismissed the claimants’ appeal on 29 September 2009 and refused their application for costs.
• High Court (Administrative Court): The section 288 appeal was dismissed and the judicial review application was dismissed. Permission to appeal was granted on the 28-day procedural issue only.