Glyn Marshall, R (on the application of) v East Dorset Council & Anor

At the permission stage, a judicial review claim is arguable where a local planning authority may have treated permitted development rights as arising despite an application describing development apparently excluded from the relevant class. The authority must address the prescribed prior-approval procedure within the statutory period, including relevant siting and design issues. The expiry of that period may not resolve whether development was permitted if the proposal was incapable of falling within the class. Permission may be granted on grounds that raise those questions, where the claimant acted promptly after learning of the decision.

The claimant sought permission to challenge East Dorset Council’s handling of an application under Schedule 2 Part 6 of the Town and Country Planning General Permitted Development Order 2015. The application concerned an agricultural building near the claimant’s house and a listed building. It described winter accommodation for sheep and lambs, although the relevant permitted development class excluded buildings for livestock accommodation within 400 metres of a protected building, subject to limited exceptions.

The council did not properly address the application within 28 days. It later stated that prior approval was not required and added an informative concerning the restricted livestock use. The claimant raised three grounds concerning the scope of permitted development, the validity of the application, and failure to consider siting, design and heritage effects.

1. Permission granted. The claim was arguable on all three grounds.
2. It was arguable that the application described development incapable of benefiting from Class A permitted development rights because the proposed building was intended to house animals in winter and therefore appeared to fall within the exclusion in paragraph A1(iii), subject to the relevant exception in paragraph D1(3).
3. The council had failed to address the application properly within the 28-day procedure. In particular, it had not considered the effect of siting and design despite the proximity of protected buildings, including a listed building.
4. The expiry of the 28-day period created an arguable issue as to whether development became lawful or merely became immune from enforcement where the application itself was outside the permitted development class.
5. The third ground raised a difficulty because, if the application was lawful and the automatic bar on commencing development had been lifted, the time for raising siting and design issues might have passed. That issue did not prevent the ground from being arguable.
6. The claimant acted expeditiously after learning of the decision. Permission was granted on each ground.