A Herefordshire farmer applying to build a new agricultural unit under permitted development rights, has found himself back to square one after his claim to seek a Judicial Review of Herefordshire Council’s local planning authority’s (LPA) decision not to grant prior approval failed.
Mr and Mrs Smolas' farm 40 acres three miles east of Hay on Wye. In addition to farming sheep, they also run a holiday cottage business and have a ‘glamping’ site. Following a decision to expand their organic vegetable and livestock business, Mr Smolas applied for prior approval to build a new barn for fodder and equipment, via an online form submitted through the LPA portal, at the beginning of March 2020.
Prior approval required – and refused – in the same notice
The LPA responded by determining that prior approval was required and, in the same notice, refused to grant prior approval stating that Mr Smolas would have to apply for planning permission. The LPA’s justification for refusing prior approval was that Mr Smolas provided ‘insufficient evidence to satisfy officers that the building is reasonably necessary for the purposes of agriculture within the unit.’ The basis for the decision was that the requirements of the legislation (Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596) (GPDO 2015) because ‘the design of the building is not functional in nature and appears overly designed for its stated agricultural purpose.'
LPA’s ‘irrational’ approach prompted Judicial Review
There are a number of grounds on which a Judicial Review can be brought, among which is a belief that the planning authority misdirected itself as to its legal powers; it acted unlawfully in the exercise of those powers; or it reached an irrational decision by not properly considering the evidence before it.
Mr Smolas sought a Judicial Review to challenge the LPA’s decision notices on two grounds: first, that the LPA’s powers did not extend beyond determining if prior approval was required so could not refuse to grant it on the same occasion; and second, that the LPA’s conclusion that the proposed building was ‘not reasonably necessary for the purposes of agriculture’, and thus required planning permission, was irrational. In its response, the LPA also noted that Mr Smolas should have exercised his ‘statutory right of appeal to the Secretary of State’ rather than seeking a Judicial Review, a point that was addressed by the judge.
Judicial Review: the outcome
Lang J dismissed Mr Smolas’ challenge on three of the four grounds of challenge, determining that the LPA did not act beyond its powers in deciding if the development fell outside the scope of permitted development rights; nor did it act unlawfully by determining if prior approval was required and then refusing it at the same time. Finally, Lang J did not agree that the LPA’s decision was irrational. She noted that, given the timing, Mr Smolas could have given the authority considerably more information to support his application and that the planning officer’s appraisal was a legitimate exercise of their judgment. She did go onto to make the point that it would help all applicants if it was made clear, as part of the application process, that all information submitted ‘could be used by local planning authorities to determine whether the definitional requirements for permitted development were met and, where appropriate, whether prior approval was required, and if so, whether it should be granted or refused.’
Beware the ‘light touch’ approach
It would appear in the judge’s summing up that LPA’s decision that the development fell outside the scope of permitted development right rested to an extent on the paucity of information submitted by Mr Smolas. He had placed too much reliance on the Planning Practice Guidance (PPG) that prior approval is a light touch process and thus had not supplied sufficient evidence to convince the planning officers that a new agricultural building was necessary. The Judge pointed out that, rather than being ‘light touch’, ‘the requirements under the GPDO meant that applications for prior approval were, in reality, far from straightforward.’ She went onto to note: ‘The Claimant could have provided more detail as to why he needed an agricultural building, by reference to plans to diversify and expand the agricultural side of the business, but he did not do so.’
The prior approval process for agricultural buildings is seen by some applicants as a “rubber stamping” exercise, and this case serves to highlight the difficulties that can be encountered. It may also signify a shift away from the previous ease with which prior approval has been obtained. To give themselves the best chance of success, applicants should ensure that sufficient information is provided at the outset to demonstrate that the application falls within the scope of the relevant permitted development right, and to persuade the LPA that prior approval should be given if required.