Keenan v Woking Borough Council & Anor

Planning permission under a development order is granted only to development falling fully within the relevant class of permitted development. Conditions regulating the exercise of that permission, including a prior-approval procedure, neither grant permission nor enlarge the class.

Accordingly, a local planning authority’s decision that prior approval is unnecessary, or its failure to determine the matter within 28 days, permits commencement only of development that is in fact permitted development. It cannot validate development outside the class, including agricultural or forestry development that is not reasonably necessary for the relevant purpose.

Mr Keenan constructed a hardcore track at Blanketmill Farm after Woking Borough Council failed to respond within 28 days to his application for prior notification under the Town and Country Planning (General Permitted Development) Order 1995.

The council later issued an enforcement notice. The inspector dismissed the ground (c) appeal, finding that the track was not reasonably necessary for agriculture or forestry and therefore did not fall within either relevant permitted-development class. Lang J dismissed Mr Keenan’s statutory appeal in the Planning Court: [2016] EWHC 427 (Admin).

The sole issue was whether the council’s silence itself gave planning permission for the track despite its failure to qualify as permitted development.

1. Appeal dismissed. Lindblom LJ, with whom Lewison LJ agreed, held that the inspector’s conclusion on the ground (c) appeal was lawful and that Lang J had correctly dismissed the statutory appeal.
2. Under sections 57 to 60 of the Town and Country Planning Act 1990, read with article 3 of the Town and Country Planning (General Permitted Development) Order 1995, the grant of planning permission comes from article 3(1) and the description of permitted development in the relevant class. A development must first fall fully within that description. Article 3(2) permits conditions, limitations and exceptions, but those provisions regulate an existing grant and cannot enlarge it.
3. The prior-approval conditions in Class A of Parts 6 and 7 had a confined function. They enabled the authority to decide whether prior approval was required for specified details, including the siting and means of construction of a private way. They did not require the authority to determine whether the proposal was permitted development, and did not empower it to grant permission for development outside the class.
4. Thus, whether the authority notified the developer that prior approval was unnecessary or made no determination within 28 days, the developer could proceed only with development that was already permitted development. Silence could not confer planning permission by default on development that did not meet the substantive Class A requirements. The requirement that agricultural or forestry development be reasonably necessary remained a prerequisite.
5. This construction was consistent with Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367. That authority concerned a valid application for development within Class A; it did not support the proposition that the conditions could validate development outside Class A.
6. The unchallenged factual conclusion was that the track was not reasonably necessary for agriculture or forestry. It was therefore outside both classes, and the council’s delay could not make it lawful.

• Court of Appeal (Civil Division): Appeal dismissed: [2017] EWCA Civ 438.
• High Court, Administrative Court, Planning Court: Lang J dismissed the appellant’s appeal under section 289 of the Town and Country Planning Act 1990: [2016] EWHC 427 (Admin).
• Planning inspector: The inspector dismissed the enforcement appeals and upheld the notices, including the ground (c) appeal concerning the hardcore track.