Andrew Rickards, R (on the application of) v East Hertfordshire District Council

Prior approval under the Town and Country Planning (General Permitted Development) (England) Order 2015 is a streamlined process, but it still requires an appropriate degree of rigour. The principle of development is established by the permitted development right; the authority must nevertheless assess the statutory eligibility criteria and the details subject to prior approval.

Protective designations such as ancient woodland and listed buildings are material considerations when assessing siting, design and external appearance. An officer’s report must show that those matters were considered. A general reference to the character and appearance of the surrounding area cannot cure a complete absence of any indication that the designations were known or addressed.

The claimant sought judicial review of the Council’s grant of prior approval for three polytunnels and associated works on agricultural land in the Metropolitan Green Belt. The proposed development relied on Class A, Part 6 of the Town and Country Planning (General Permitted Development) (England) Order 2015.

Permission was granted to pursue four grounds concerning the size and agricultural use of the unit, the adequacy of the information before the Council, and failures to consider nearby ancient woodland and a listed building. The claim also raised the continued availability and amount of Aarhus costs protection.

1. Outcome. Grounds 3 and 4 succeeded. The prior approval could not stand because the Council failed to have regard to the potential effects on Bayford Wood ancient woodland and the listed building known as The Gage. Grounds 1 and 2 failed.
2. The prior approval process is more streamlined than a planning application and requires a light-touch approach. That does not mean no scrutiny. The authority must apply appropriate rigour, especially when determining the definitional requirements for permitted development. The process involves deciding whether prior approval is required and, if so, whether it should be granted on the submitted details. Those questions may lawfully be considered together: R (Smolas) v Herefordshire Council [2021] EWHC 1663 (Admin) at [73].
3. The Council was entitled to conclude that the agricultural unit exceeded five hectares. The application form, declaration and Planning Statement supplied evidence supporting that conclusion. There was no disputed fact requiring a site visit, and no general requirement to corroborate an applicant’s information. R v Sevenoaks District Council, ex p Palley [1994] EGCS 148 did not establish such a rule.
4. The Council also acted rationally in deciding that the information about the agricultural business and proposed tomatillo cultivation was sufficient. The court’s jurisdiction concerning the manner and intensity of a public authority’s enquiry is limited, subject to irrationality: Balajigari v Secretary of State for the Home Department [2019] 4 All ER 998.
5. Ancient woodland and listed buildings were clearly material considerations. The former Annex E to PPG7 remained useful good-practice guidance despite withdrawal, and was consistent with the NPPF and PPG. The Council had to assess the relevant impacts so that appropriate mitigation could be considered.
6. The Report contained no reference to either designation. Its general references to the surrounding area and significant views could not, on a benevolent reading, establish that the Officer knew of or considered them. That would require a creative re-imagining of the Report, contrary to R (Mansell) v Tonbridge BC [2019] PTSR 1452 and R (Bates) v Maldon District Council [2019] EWCA Civ 1272.
7. The Aarhus costs protection granted by an earlier order remained effective despite the absence of a statement of financial resources. The court could dispense with the procedural requirement, and no proper application to vary the earlier order had been made. The default caps applied: £5,000 for the claimant and £35,000 for the Council.

First-instance judicial review claim. The judgment itself records that permission was initially refused on the papers, but permission was later granted on Grounds 1 to 4 and an extension of time was allowed.