East Hertfordshire District Council v Secretary of State for Communities and Local Government & Anor

Class Q creates a qualified entitlement to permitted development for converting agricultural buildings into dwellinghouses. Whether a location is “undesirable” under paragraph Q2(1)(e) requires a planning judgment, informed by the purpose of increasing housing supply and by the particular statutory context. Accessibility is relevant, but the objection must be substantially stronger than would be required on an ordinary planning application. The National Planning Policy Framework must be considered under paragraph W(10)(b), but it cannot be applied in a way that frustrates Class Q’s purpose. Planning Practice Guidance paragraphs 108 and 109 are consistent with that approach. A decision-maker may therefore reject an objection based only on the ordinary application of policies against isolated and inaccessible housing where no distinct Class Q objection is advanced.

The interested party applied for prior approval under Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 to convert an agricultural barn into a dwelling. East Hertfordshire District Council refused the application, relying principally on the isolated and inaccessible location, paragraph 55 of the National Planning Policy Framework, and the alleged conflict between that policy and Planning Practice Guidance paragraphs 108 and 109.

An Inspector allowed the appeal, granted prior approval and awarded costs against the Council. The Council brought two claims challenging the merits decision and the costs decision. The central issues were the meaning of “impractical or undesirable” in paragraph Q2(1)(e), the relevance of accessibility and paragraph 55, and the legal status of the Planning Practice Guidance.

1. Both claims dismissed. The Inspector’s grant of prior approval and award of costs were lawful.
2. The court must interpret the particular permitted-development class by examining its wording, relevant provisions of the Order and, where necessary, the accompanying Explanatory Memorandum. Class Q creates a qualified entitlement to permitted development, subject to the matters requiring prior approval. Its purpose includes increasing housing supply through the conversion of agricultural buildings, including buildings in locations where ordinary planning permission might not be granted.
3. “Undesirable” in paragraph Q2(1)(e) is not a term requiring an elaborate legal definition. It calls for a planning judgment, exercised in the context of Class Q and its purpose. The decision-maker must apply ordinary public-law principles when reviewing that judgment.
4. Accessibility is not excluded from consideration. It remains relevant to the assessment of location under paragraph Q2(1)(e). However, applying the Framework’s accessibility policies with the same rigour as on an ordinary planning application could frustrate Class Q’s purpose. The threshold for unacceptable inaccessibility is therefore significantly higher in a Class Q prior-approval case.
5. Paragraph W(10)(b) requires regard to the National Planning Policy Framework as if the application were a planning application, but that direction operates within the correct statutory question. Paragraph 55 cannot be applied in a way that treats the proposal simply as an application for planning permission or makes ordinary countryside inaccessibility a sufficient reason for refusal.
6. Planning Practice Guidance paragraphs 108 and 109 accurately convey that there is no separate sustainability-of-location test and that a location where planning permission would ordinarily be refused is not, by itself, sufficient. The guidance cannot determine the legal meaning of the Order, but it was consistent with the proper approach.
7. The Council’s case before the Inspector amounted to applying paragraph 55 without qualification. The Inspector was entitled to reject it and conclude that conversion was not shown to be impractical or undesirable. Having lawfully disagreed with the Council’s approach and relied on earlier comparable decisions, she was also entitled to award costs.

First-instance judicial review claims challenging the Inspector’s decisions of 20 June 2016. Both claims were dismissed.