Permitted development - court of appeal clarifies the law

Sydney Mitchell Solicitors

Developments that require planning permission do not become permitted by default just because of delays in local authority decision-making.

The Court of Appeal made that point in a guideline decision concerning a hardcore track that was laid down without planning consent to serve a Christmas tree plantation.

The owner of the smallholding had applied to a local authority for a determination as to whether the latter’s prior approval was required for the track or whether it would be an automatically permitted development of agricultural land.

The council did not respond to the application within the 28 days required by the Town and Country Planning (General Permitted Development) Order 1995.

After the owner pressed ahead with the work the council issued enforcement notices that required removal of two sections of the track.

In a decision that was later upheld by the High Court, a government planning inspector found that the sections were not reasonably necessary for the purposes of agriculture or forestry and that planning permission had thus been required.

In rejecting the owner’s appeal and upholding the enforcement notices, the Court of Appeal found that the relevant parts of the track had not become permitted merely by virtue of the council's failure to meet the 28-day deadline.

The Court noted that that conclusion was entirely compatible with certainty and efficiency in the regime for permitted developments.

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