AC-2024-LON-002558 - [2025] EWHC 2278 (Admin)

The Interested Party owns land at Bucksbury Farm, Bucks’s Alley, Hertfordshire (“the Property”). The land in the vicinity of the Works includes both open areas and a forested area known as Bayford Wood. The Works sit entirely within an area designated as Metropolitan Green Belt. Bayford Wood has been designated as an “ancient woodland” by Natural England.

The evidence records the fact that the Property has hitherto been used for agricultural purposes which include the use of fields for grazing and hay production, for locating bee hives for honey production, and for the cultivation of specialist wood-grown mushrooms. The latter activity takes place wholly inside Bayford Wood itself.

The Interested Party has now identified an opportunity to diversify the agricultural uses to which the Property is put. He wishes to cultivate tomatillos, a fruit which originates from Mexico and central America and which is used predominantly in Mexican cooking. Cultivation of the crop in this country requires a protected-cropping regime to be able to regulate the environment in which they grow. To this end the Interested Party sought consent for the erection of three polytunnels, and related hard infrastructure, in which the crop could be grown with some controls over the microclimate.

The polytunnels are large. They each measure 32 metres long by 8 metres wide, with an eaves height of 3.2 metres and a ridge height of 4.9 metres. They are positioned side by side. There is no dispute that they constitute “buildings” for the purposes of planning control.

Land which is used for agricultural purposes benefits from certain permitted development rights, meaning, in effect, that planning permission is deemed to be granted for certain identified works meeting specified criteria without the need for planning permission to be obtained upon application. Any such permission is deemed to be granted subject to certain specified conditions.

Permitted development rights for development associated with agriculture is now found in Part 6 to the GPDO.

Part 6 has five different Classes of permitted development. This case concerns development said to fall within Class A, which (so far as is relevant to this claim) states as follows:

“Class A – agricultural development on units of 5 hectares or more

A.

Permitted development

The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of—

(a)

works for the erection, extension or alteration of a building; or

(b)

any excavation or engineering operations,

which are reasonably necessary for the purposes of agriculture within that unit.

. . .

A.2— Conditions

. . .

(2)

Subject to sub-paragraph (3), development consisting of—

(a)

the erection, extension or alteration of a building;

(b)

the formation or alteration of a private way;

is permitted by Class A subject to the following conditions—

(i)

the developer must, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to the siting, design and external appearance of the building, the siting and means of construction of the private way, the siting of the excavation or deposit or the siting and appearance of the tank, as the case may be;

. . .

(iv)

where the local planning authority give the applicant notice that such prior approval is required, the applicant must-

(aa) display a site notice by site display on or near the land on which the proposed development is to be carried out, leaving the notice in position for not less than 21 days in the period of 28 days from the date on which the local planning authority gave the notice to the applicant; and

(bb) where the site notice is, without any fault or intention of the applicant, removed, obscured or defaced before the period of 21 days referred to in subparagraph (iv)(aa) has elapsed, the applicant is treated as having complied with the requirements of that subparagraph if the applicant has taken reasonable steps for protection of the notice and, if need be, its replacement; ...”

Part 6 includes a section on the interpretation of terms used in Classes A to C as follows:

“D.1— Interpretation of Classes A to C

(1)

For the purposes of Classes A, B and C—

“agricultural land” means land which, before development permitted by this Part is carried out, is land in use for agriculture and which is so used for the purposes of a trade or business, and excludes any dwellinghouse or garden;

“agricultural unit” means agricultural land which is occupied as a unit for the purposes of agriculture, including—

(a)

any dwelling or other building on that land occupied for the purpose of farming the land by the person who occupies the unit, or

(b)

any dwelling on that land occupied by a farmworker; . . .

“site notice” means a notice containing—

(a)

the name of the applicant,

(b)

the address or location of the proposed development,

(c)

a description of the proposed development and of the materials to be used,

(d)

a statement that the prior approval of the authority will be required as to the siting, design and external appearance of the building or, as the case may be, the siting and means of construction of the private way,

(e)

the name and address of the local planning authority,

and which is signed and dated by or on behalf of the applicant”

It will be seen that Class A permits the “erection, extension or alteration of a building”. It is to be contrasted with Class B rights (“agricultural development on units of less than 5 hectares”) where, so far as buildings are concerned, the rights are confined to the “extension or alteration of a[n existing] building”, and no new buildings are permitted without an express grant of planning permission.

It will be seen that the differentiating factor between Class A and Class B is the size of the agricultural unit in question. Only if the unit is 5 hectares or more in size may new buildings be erected.

On 25^th March 2024 the Interested Party submitted to the Council an application (“the Application”), pursuant to paragraph A.2(2)(b)(i) of the GPDO, to determine whether prior approval to the various matters referred to in that paragraph was required. The application was accompanied by an application form, a supporting Planning Statement prepared for the Interested Party by Kernon Countryside Consultants Limited (“the Planning Statement”), a site location plan, a block plan of the area to be developed, and an elevational drawing of the polytunnel structures.

The site location plan was at a scale of 1:1250 at A3 size. It showed, edged in red, the area proposed for carrying out the Works. It also showed, edged in blue, the land outside of the application site that was also owned by the Interested Party (although the scale of the plan meant that it was not possible to show the full extent of that other land). It showed the highway known as Bucks Alley running along the southern boundary of the red and blue land. It also showed, at the western edge of the plan, the location of the Claimant’s property, which is known as “The Gage”. The Gage is a Grade II listed building.

The Planning Statement included commentary on both the “pre-requisite criteria” for Class A permitted development rights to be available for the Works in the first place, and the “discretionary criteria” concerned with the siting, design and external appearance of the Works.

In relation to pre-requisite criteria the Planning Statement noted as follows:

“4.3

The definition of agricultural land for the GPDO is land in use for agriculture for the purposes of a trade or business. That trade or business does not have to be of a large scale, but it must be more than a hobby. The land is used to produce hay for sale, and grass for grazing, and there are large numbers of hives used to produce honey for sale. Mushrooms are grown in the ancillary woodland. This is agricultural land in use as a trade or business.

4.4

Agricultural land means land occupied as a unit for the purposes of agriculture, and can include a dwelling or building used for farming. The holding is used for hay and honey production (there are currently 12 hives), as well as some speciality wood-grown mushrooms (inoculated into logs), and extends in total to just over 8 hectares. The number of hives will increase, and bees are needed to pollinate the tomatillos.

4.5

The land includes woodland used as part of the agricultural enterprises, for the production of honey and mushrooms. These woods are used for or are ancillary to the agricultural activities, and fall within the definition of agriculture in the Town and Country Planning Act 1990.

4.6

The production of tomatillo needs a protected-cropping regime, as proposed. Horticultural production falls fully within the definition of agriculture, and the buildings are clearly reasonably necessary for the purposes of agriculture.

4.7

Accordingly the development is permitted development in principle”

In relation to discretionary criteria the entirety of the commentary in the Planning Statement was as follows:

“4.9

Siting and External Appearance of the Building. The siting of the building is well screened, on a site with strong and tall vegetative screening, with no views in from outside except through the roadside hedge, which is thin in places.

4.10

The siting should not require approval. The design and external appearance is a low, typical horticultural building, and will not affect any skyline or other important views. This should be approved, if prior approval is required.

4.11

Siting and Means of Construction of the Private Way. The short track runs from the gateway to the building, parallel to the field edge. The siting should be acceptable. The gateway is existing, and is lawfully used for agricultural use.

4.12

The track will involve the laying of a stone or rubble base using natural gravel as much as possible, with a top coating of road planings, typical of farm track and versatile and useable. This should not require the Council’s prior approval.

Conditions

4.13

Prior approval can be given subject to conditions. A landscaping condition for planting along the roadside hedge could be applied, if required. The Applicant plans to plant that area with a belt of vegetation about 2-3m deep”

The Application was considered by Ms Oswick, a planning officer employed by the Council (“the Officer”). The Officer drafted a Delegated Report (“the Report”) in which she considered the application and made a recommendation to Ms Clifton-Brown, described in the Report as the “authorising officer”, to make a decision under delegated powers. It is common ground that neither Ms Oswick nor Ms Clifton-Brown undertook a site visit at any stage.

The Report recorded the planning history of the Property. It then summarised the details of the application and of some of the planning designations affecting the Property, recording correctly that it sat within the green belt. The Report then set out the relevant parts of Part 6 Class A of the GPDO.

A number of themes were then considered in the Report.

One theme concerned the size of the agricultural holding and the Report recorded the fact that the Interested Party had been asked to provide supplementary details after the Application was submitted. The Report stated:

“It is noted that within the submitted location plan, the blue line (showcasing the ownership of the land) measures shy of 5 hectares. However, it was understood that this did not reflect the entire extent of the holding, and displays only the land capable of being shown within the scale of 1:1250. As such, a further document was requested. The agent supplied two further site plans which outline the full extent of the site, one of which being a land registry document, on the 23^rd March 2024. These are considered to be sufficient. It can therefore be agreed that the agricultural unit exceeds 5 hectares.

Therefore, on the balance of probabilities, it is considered that the site is within an agricultural unit of more than 5 hectares in area, and as such can be considered under Class A”

A second theme concerned the justification of “reasonable necessity” for the Works advanced in the Application documents. Having quoted from the Planning Statement the Report then commented:

“The growing of tomatillos appears to be a new venture for this agricultural business, which has been outlined to relate currently to hay production, grazing, wood-grown mushrooms, and honey production. The production of tomatillos is solely an agricultural undertaking and would relate to the agricultural use of the land. The production will also tie in with the keeping of bees at the site, which have been outlined as necessary for the pollination of the tomatillos.

The erection of the polytunnels is considered to be reasonably necessary for the agricultural business to grow the tomatillos and can therefore be accepted. It is understood that the planning statement lacks detail, however the LPA has no justified reason to dispute the reasons given. Therefore, on the balance of probabilities, it can be determined that the development is reasonably necessary for the purposes of agriculture”

A third issue considered by the Report was the proposed siting, design and external appearance of the Works. Noting the requirement for the Council to consider whether prior approval was necessary for the Works, the Report went on to assess the siting, design and external appearance in this way:

“The proposed polytunnels shall have a depth of 32 metres, a width of 24 metres and maximum height of 4.9 metres. It is noted that this is a large structure that would interrupt the openness of the Green Belt, however polytunnels are not uncommon in rural and agricultural areas and it is not therefore considered that it would result in demonstrable harm to the character and appearance of the area in this case.

It is also apparent that there is landscaping separating the site from Bucks Alley. As such, this shall aid in obscuring the prominence of this structure to the public realm. The polytunnels will still be visible, however this is not considered to detrimentally impact any significant views, or character.

The siting, design and external appearance of the building would be appropriate to this rural setting, with the character and appearance of the site and the surrounding area not unduly harmed”

The overall conclusion in the Report was expressed in these terms:

“In summary, the site constitutes agricultural land comprised in an agricultural unit of 5 hectares or more in area. Therefore, the erection of polytunnels and an access track falls to be considered under Schedule 2, Part 6, Class A of the [GPDO]. The proposal is considered to be reasonably necessary for the purposes of agriculture within the unit. The proposal complies with the limitations and conditions of A.1 and A.2. The siting, design and external appearance of the development is acceptable, with the character and appearance of the site and the surrounding areas not unduly harmed. It is recommended that prior approval is granted”

This recommendation was accepted, and the authorising officer granted prior approval on 25^th April 2024.

Thus it will be seen that, in response to the Application, the conclusion of the Officer was that prior approval was required but that it should be granted in accordance with the details shown in the Application. There is no dispute between the parties that this is permissible in principle as a potential outcome of the Application. Where they differ is whether on the facts this outcome was justified.

The Council having concluded that prior approval was necessary, the requirement in A.2(2)(iv)(aa) was that a site notice should be erected and maintained for 21 of the next 28 days giving notice of that fact. The duty to erect a site notice rested with the Interested Party as applicant, not with the Council. It is common ground that no site notice was erected.

The unchallenged evidence in this case is that nobody became aware of the Council’s decision until 18^th June 2024, when a local resident observed heavy machinery on the Property. The evidence also shows that on 23^rd June another local resident, concerned by what appeared to be preparations for unauthorised development at the Property, contacted the Council’s Enforcement Team. On 26^th June the Enforcement Team sent an email to that resident agreeing to investigate the complaint and to undertake a site visit. It appears that the Interested Party disclosed the prior approval to the investigating enforcement officer when he visited the Property.

The evidence from the Claimant is that he himself did not become aware of the prior approval until 4^th July 2024.