Murrell & Anor v Secretary of State for Communities and Local Government & Anor

Factual and Procedural Background

The appellants operate a farm in Norfolk and proposed to erect a cattle shelter, a development requiring planning permission. This development was permitted under Class A of Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 ("the GPDO"), subject to conditions requiring prior approval of siting, design, and external appearance by the local planning authority. The appellants applied to the local planning authority ("the council") for such a determination. The council decided that prior approval was needed and refused it in the same decision. An appeal to a planning inspector was dismissed, and a subsequent challenge under section 288 of the Town and Country Planning Act 1990 was dismissed by Beatson J. The appellants appealed that dismissal to this court.

The procedural dispute centers on whether the council's determination was made within the statutory 28-day period following receipt of a valid application, as required by paragraph A2(2) of Part 6 of Schedule 2 to the GPDO. The appellants contend that the council's determination was late, resulting in the accrual of permission for the development. The second issue concerns the correct approach to deciding prior approval applications under the GPDO and relevant policy guidance, specifically Annex E to Planning Policy Guidance 7 ("PPG7"). The appellants argue that the inspector erred by treating the case as an ordinary planning application rather than a prior approval application where the principle of development is not in issue.

Legal Issues Presented

1. Whether the council's determination as to the need for prior approval was made within the 28-day statutory period, and if not, whether permission for the development accrued on expiry of that period making the council's subsequent refusal legally ineffective.
2. The proper legal approach to be applied when determining prior approval applications under Class A of Part 6 of Schedule 2 to the GPDO, including the relevance and interpretation of Annex E to PPG7 and the extent to which the principle of development is considered.

Arguments of the Parties

Appellants' Arguments

• The original application received on 1 December 2008 met the statutory requirements and was valid, triggering the 28-day period for determination.
• The council was not entitled to treat the application as invalid or require completion of a new standard form and additional documents before considering it valid.
• The 28-day period expired before the council's determination, so permission for the development accrued by operation of law.
• The inspector misapplied the law by treating the appeal as a full planning application rather than a prior approval application where the principle of development is not in issue.
• The inspector failed to properly consider or refer to Annex E to PPG7, which guides the prior approval process for agricultural buildings.

Secretary of State's Arguments

• The council made procedural errors in treating the original application as invalid and combining the determination and refusal decisions, but these errors were not material and did not prejudice the appellants.
• The parties proceeded on a common understanding of the timetable, and no challenge was made at the time, so the appellants cannot now rely on a technicality to invalidate the process.
• If the original application was valid, it was effectively withdrawn or superseded by the later application.
• The prior approval process is intended to fast-track simple applications but allow regulation of more controversial cases, consistent with the council's approach.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first analysed the procedural issue concerning the validity of the original application received on 1 December 2008. It concluded that the application complied with the statutory requirements specified in paragraph A2(2)(ii) of the GPDO, including a written description, materials, a plan indicating the site, and the fee. The council's request for additional information and a new standard form was not mandatory and did not affect the validity of the original application. Consequently, the 28-day period for the council's determination began on 1 December and expired on 29 December.

The council's decision on 31 December was therefore made after the expiry of the statutory period and had no legal effect. The court rejected the reasoning of Beatson J, who had accepted a practical approach and held that the council's letters effectively stopped the clock. The court emphasized that the statutory time limits are fixed and cannot be extended or suspended by agreement or common understanding.

Regarding the substantive issue, the court noted that prior approval under Class A of the GPDO concerns only the siting, design, and external appearance of permitted development, not the principle of development itself. Annex E to PPG7 clarifies that the principle of development is not to be reconsidered at the prior approval stage, which is a limited and fast-tracked process. The court found that the inspector erred by treating the appeal as a full planning application and relying on policies concerned with the principle of development, such as strict control of new building in the countryside, rather than focusing solely on the limited matters for prior approval.

The inspector's failure to explicitly refer to Annex E was surprising, and the court was not persuaded that she properly applied the guidance. The balancing exercise required by Annex E—between operational agricultural needs and visual amenity impacts—was not approached from the correct legal perspective. If the substantive issue had been live, the court indicated it would have quashed the inspector's decision and remitted the matter for reconsideration.

Holding and Implications

The court ALLOWED the appeal on the procedural ground, holding that the original application was valid and that the council's determination was made outside the statutory 28-day period, resulting in the accrual of planning permission under the GPDO on expiry of that period. The council's refusal of prior approval was therefore of no legal effect.

The court quashed the inspector's decision. No remittal of the case was ordered, and no further relief was granted, aside from clarifying the scope of the permitted development right for the proposed development. The court made observations on the substantive issue but did not decide it definitively since the procedural ruling was dispositive.

No new precedent was established beyond clarifying the application of the statutory time limits and the interpretation of the prior approval procedure under the GPDO and Annex E to PPG7.