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

I accept that the intent behind the prior approval process for permitted development rights is to create a more streamlined process than applies to planning applications. It would be wrong to judge the rigour of that process, or the rationality of a local planning authority’s decisions relating to it, according to the same standards as pertain to decisions on a planning application.

Crucially, with permitted development rights, the principle of development is already established by statute. What is left is to consider how that development should be implemented. This is often achieved for various different criteria by a ‘prior approval’ process. That process is used to determine, for example, how identified impacts of the permission deemed to be granted can best be mitigated, but it cannot take away the deemed grant of permission since that derives from statute. It is, as it were, a question of “how” not “if”.

In cases where a prior approval is part of the process there are two parts: deciding whether prior approval is needed, and (if so) deciding whether it should be granted in line with the details submitted by the applicant. It is established law that the two parts of the process can lawfully be considered together (see R (Smolas) v Herefordshire Council [2021] EWHC 1663 Admin at [73], per Lang J).

Consistent with the above principles, policy guidance in the PPG on how to administer the prior approval process acknowledges that (by comparison with a full planning application process) the process demands a “light touch”. Ms Nevin for the Council placed considerable emphasis on this guidance as part of her submissions.

But there is a note of caution to sound about the “light touch” approach. In oral argument Ms Nevin sensibly agreed that “light touch” does not equate to “no touch”. A light touch approach still demands an appropriate amount of rigour. Lang J considered this point specifically in Smolas, noting (at [82]):

“The Claimant relied upon the guidance in the PPG that prior approval is a “light touch” process and should not place onerous requirements on developers. However, the complexity of the requirements in the GPDO, and in the Planning Inspectorate’s application form, mean that, in reality, these applications are far from straightforward”

As with all applications in the wider system of planning, prior approval applications bear upon a number of competing interests – for example, of the developer and neighbouring landowners - and so there must be proper mediation between those interests. There is therefore a distinction to be drawn between (on the one hand) considering whether permitted development rights apply and (on the other hand) the details of the development subject to which those rights are exercised. Clearly a light touch is far less appropriate to determining the first of these – something which Lang J in Smolas described as the “definitional requirements for permitted development”.

In both his written and oral submissions Mr Beglan for the Claimant relied upon the case of R v Sevenoaks District Council, ex parte Palley [1994] EGCS 148. That case also considered the operation of what was then Part 6 of the Town and Country Planning (General Development) Order 1988 (“GDO”). The rights being relied upon in that case were for development on an agricultural unit of at least 5 hectares. In purported reliance on those permitted development rights the interested party in the case had built a glasshouse on his agricultural unit. The permitted development rights in question involved a prior approval procedure for the proposed development. Permitted development rights were disallowed on land which was within 25 metres of a classified road. The interested party’s application for prior approval was initially rejected by the local planning authority because it breached this criterion, although he later submitted further details showing the siting of the building and a measurement of the distance from the road confirming that the local authority had been mistaken when refusing the first application. In accepting that it had made a mistake regarding proximity to a classified road, the local authority required no further details to be submitted with the second prior approval application. It did not, for example, ask for any further details of whether the land in question was “agricultural land” within the requisite definition used by the 1988 Order. The court upheld Mr Palley’s challenge, holding that the local authority had unlawfully failed to interrogate whether (to adopt Lang J’s later term) the definitional requirements for the permitted development rights were established.

Mr Beglan relied on the case of Palley in support of submissions relating to both of his Grounds 1 and 2. He noted, for example, the following passage from the judgment of May J in Palley on page 14 (Footnote: ¹):

“A question whether land is in use for agriculture and so used for the purposes of a trade or business is not likely to be a straightforward paper enquiry. It may require site inspections and consideration of a range of facts and perhaps documents by suitably qualified people”

Mr Beglan’s primary complaint under Ground 1 was that the material before the Council could not lead it rationally to conclude that the size of the agricultural unit exceeded 5 hectares, such that permitted development rights were available for the erection of a new building. In oral argument Mr Beglan submitted that there was “nothing of substance to indicate that the size criterion was met”. That, he submitted, made the decision to grant prior approval irrational.

I cannot agree with this submission.

In the prior approval application form, in answer to the question “What is the total area of the entire agricultural unit?” the answer was given as “8.0 [hectares]”. There is a declaration at the end of the application form in which the author of it has to tick a box to confirm his or her agreement with a series of statements, one of which is “I/We confirm that, to the best of my/our knowledge, any facts are true and accurate and any opinions given are the genuine opinions of the person(s) giving them”. In addition, paragraph 4.4 of the accompanying Planning Statement reads “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”. Each of these extracts represents evidence that the holding is in excess of 5 hectares.

At no point has the Claimant advanced a positive case to say that the size of the unit is not over 5 hectares. He does not produce any evidence to gainsay what is said in the application material. He does not, for example, say to the Council or to the court “I know this woodland and there is no way that this much of it is used for agricultural purposes”.

It is apt to note the conclusion of Lang J in Smolas, which was to the following effect (at [84]):

“In my view, this appraisal [of whether permitted development rights were available] was a legitimate exercise of the planning officer’s judgement, which the delegated decision-maker accepted when making the decision. The Council was entitled to conclude that it had insufficient evidence to satisfy it, as the onus of establishing permitted development was on the Claimant”

But although the outcome in Smolas was that the decision-maker had rationally concluded that the criteria for permitted development had not been met, applying the same guidance it is no less legitimate for the Officer in this case to conclude in the exercise of her planning judgement that she did have sufficient evidence to demonstrate that the 5 hectare criterion had been met.

Despite the emphasis that Mr Beglan placed on the case of Palley I have derived limited assistance from it in this case. In my judgement, relative to this case Palley does not establish any particular principle beyond the general principles of planning law. I observe in passing that the factual circumstances in Palley were very different from the facts of the present case. In Palley there had been a long and testy history between the claimant and the interested party, and the factual contentions relied upon by the interested party were very much disputed by Mr Palley. The local authority was on notice that it had a conflict of evidence to mediate, yet it was willing to accept prior approval details from the applicant that were insufficient to assist with the mediation.

Mr Beglan did not go so far as to submit that, having regard to Palley, a site visit would always be required or that it should be the norm, but he did submit that in this case one should have been undertaken. I do not agree. There was no disputed fact which only a site visit was capable of resolving. Moreover, although he disavowed this intention, at times it appeared that Mr Beglan’s submissions led logically to the conclusion that – even absent any controversy – the Council should have sought corroboration of the applicant’s information supporting the 5 hectare criterion. I reject that outcome firmly. That would be to place a disproportionate and unnecessary burden on a local planning authority which has no support in the legislation or the applicable guidance.

For these reasons Ground 1 fails.