Lucchetti, R (on the application of) v South Norfolk District Council

Where development is permitted under the General Permitted Development Order 1995, the local planning authority must act within the Order. It approves the required details and applies the conditions which arise under the Order; it has no separate power to grant planning permission subject to additional enforceable conditions.

A defective decision notice does not necessarily require quashing where its substance accords with what the authority could properly have approved, no different lawful decision would have resulted, and quashing would serve no practical or public-interest purpose. The Planning Register should nevertheless accurately record the approval and the applicable limits.

The claimant challenged the defendant authority’s decision concerning an agricultural building adjoining the claimant’s Grade II* listed home. The application was made under Part 6, Class A of the General Permitted Development Order 1995. The authority issued what purported to be a grant of planning permission subject to conditions, although the statutory scheme required approval of submitted details under the Order.

The authority accepted before proceedings that it had no power to impose conditions in that form. The claimant also complained that vegetation forming important screening had been removed and sought to quash the decision, with the practical consequence that the building might need to be demolished and re-sited. The central issues were whether the defective form required relief and whether the authority had acted unlawfully by failing to secure retention of the screening.

1. Claim dismissed. The decision notice was defective because the authority had purported to grant planning permission subject to conditions. Under Part 6, Class A of the General Permitted Development Order 1995, the authority’s function was to consider and approve the relevant details. The conditions applicable to the development flowed from the Order and were not independently imposed by the authority.
2. The analogy with approval of reserved matters was generally useful, but the schemes were not identical. In particular, in a Class A prior-approval case no permission accrued until one of the events specified in the Order. The Court of Appeal’s reasoning in Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367 explained those differences while recognising that a broadly similar approach could be appropriate.
3. The substance of the purported conditions was within the matters which could properly have been approved. The drawings and site plan reflected the approved details. The reference to olive green sufficiently identified the colour. Since the approved plans contained no external lighting, any later proposal for such lighting would require written approval under the Order.
4. The authority had been entitled in principle to rely on the developer’s representations concerning screening. Although a tree preservation order or a planning obligation might have provided additional protection, the failure to secure such measures in advance was not an error of law on the facts. The removal of more vegetation than expected did not show that a different lawful decision would have been reached.
5. Quashing was unnecessary and undesirable. The defective form did not alter the substance of the approval, and it would not be in the interests of justice to require demolition or re-siting of the building. The authority was directed to substitute an accurate entry on the Planning Register, making clear that the approval operated under Part 6 of the Order and deleting the unenforceable conditions.
6. The claimant reasonably commenced proceedings because the authority had acknowledged the defect and had not supplied the promised draft planning obligation. The claimant was awarded costs up to receipt of the acknowledgement of service; the defendant was awarded its costs thereafter.

The judgment records that permission for judicial review was initially refused on the papers by Mr Justice Lindblom and granted on a renewed application by Mr Justice Stadlen. The substantive claim was then determined at first instance by the High Court (Administrative Court). No prior merits judgment was stated.