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Prior approval and definitional requirements

The High Court has issued an important judgment on prior approval decision-making, writes Andrew Byass.

In early 2020, an application was made to Herefordshire Council seeking confirmation whether prior approval was required in respect of the siting, design and external appearance of a proposed agricultural building. The application, which used the standard form available on the planning portal, provided information about whether the proposed agricultural building was reasonably necessary for the purposes of agriculture. On receipt of the application, the council determined that prior approval should be refused because it did not meet the definitional requirements of paragraph A, Part 6, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”).

In Smolas, R (On the Application Of) v Herefordshire Council [2021] EWHC 1663 (Admin) the claimant challenged the council’s decision, submitting that the council had no power on receipt of such an application to determine whether the proposed development met the definitional requirements of the GPDO. It was argued that the council, instead, was only able to consider whether or not the siting, design and external appearance of the building were appropriate. That is, even if the council considered that the proposed development fell outside the definitional requirements, the prior approval process was not the place for the council to take that point. The claimant relied on comments made by Lang J in the decision of R (Marshall) v East Dorset DC [2018] EWHC 226 (Admin), and the Court of Appeal’s decision in Keenan v Woking BC [2017] EWCA Civ 438.

Lang J rejected the claim, and concluded that the Court of Appeal’s subsequent decision New World Payphones Ltd v Westminster City Council [2019] EWCA Civ 2250 meant that Marshall did not fully represent the correct position. The Court of Appeal in New World Payphones had concluded that “on an application to an authority for a determination as to whether its “prior approval” is required, then the authority is bound to consider and determine whether the development otherwise falls within the definitional scope of the particular class of permitted development.” This later authority supported the approach taken by the council and confirmed that it had acted lawfully in its decision-making.

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Notably, the approach now confirmed by the Court reflects long-standing guidance previously found in the now superseded Annex E to PPG7. It also avoids the undesirable outcome of local planning authorities being unable to consider definitional requirements through the prior approval process, and instead having to rely only on enforcement powers.

Andrew Byass is a barrister at Landmark Chambers. He acted for the successful council.

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