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

Under the Town and Country Planning (General Permitted Development) (England) Order 2015, exclusions from a class of permitted development help define the scope of the permission. They cannot be treated as conditions which enlarge that scope. A proposed agricultural building within 400 metres of a protected building, intended to accommodate livestock, is excluded by paragraph A.1(i), even though paragraph D.1(3) creates exceptions for the later use of a building under paragraph A.2(1)(a).

A local planning authority determining prior approval has a limited jurisdiction. It cannot decide that development outside the relevant class is permitted development. Expiry of the 28-day period does not confer planning permission for development which is not permitted development. The authority may advise on the likely planning status, but must not purport to determine it.

The claimant sought judicial review of East Dorset District Council’s decision that prior approval was not required for an agricultural building proposed by the interested party. The application stated that the building would be used to winter house ewes and lambs, although the site was within 400 metres of several protected buildings.

The council’s 28-day period for dealing with the prior-notification application had expired. Its decision notice nevertheless stated that the development constituted permitted development and referred to the livestock restriction only as an informative. The claimant argued that the proposal was excluded from Class A, that the application was invalid, and that heritage impact had not been considered. The central issues were the scope of the council’s prior-approval jurisdiction and the legal effect of the time-limit expiry.

1. The claim succeeded on Ground 1. The decision notice dated 13 February 2017 was quashed. Grounds 2 and 3, and the application for a declaration, were dismissed.
2. Class A of Part 6 must be read as a whole. The description of permitted development is subject to the exclusions in paragraph A.1. Those exclusions form part of the definition of the permitted development and cannot be severed from it. Paragraph A.1(i) therefore excluded a building within 400 metres of a protected building which was to be used for the accommodation of livestock. Paragraph D.1(3), by contrast, supplied an exception to the condition in paragraph A.2(1)(a), concerning the later use of a building resulting from permitted development. It could not be read into paragraph A.1(i). The council had therefore applied the GPDO incorrectly.
3. Following Keenan v Woking Borough Council [2017] EWCA Civ 438, prior approval provisions apply only to development falling within the relevant class. They do not empower a local planning authority to determine whether the development is within that class, or to grant permission for development outside it. Failure to determine the application within 28 days allowed the developer to proceed with permitted development under paragraph A.2(2)(iii)(cc), but did not create permission by default for development outside the class. The council therefore acted unlawfully by purporting to decide that the proposal constituted permitted development.
4. The application was valid under paragraph A.2(2)(ii). The statutory procedure required only a written description, details of materials, a plan indicating the site and the fee. The inaccurate house name did not invalidate the application because the street address and accompanying plans identified the site. The council was also entitled to accept the stated size of the agricultural unit without proof; whether the unit was in fact below five hectares was a matter for any later enforcement or other statutory process.
5. The decision notice was misleading because it stated that prior approval was not required, although the 28-day period had expired. If the council had been considering prior approval in time, the siting, design and external appearance could in principle include the impact on a neighbouring Grade II listed building. That issue was academic because the opportunity to require and assess prior approval had expired.
6. No declaration concerning the interested party’s permitted-development rights was appropriate. The disputed facts and planning judgments were better addressed through enforcement, a certificate of lawfulness under sections 191 or 192 of the Town and Country Planning Act 1990, a fresh prior-approval application based on a changed proposal, or an application for planning permission. Costs were awarded to the claimant at 75 per cent.

First-instance judicial review in the High Court (Administrative Court). No earlier decision in the same proceedings was stated in the judgment.