East Hertfordshire District Council v Secretary of State for Communities and Local Government & Anor

There are two claims before the court in relation to decisions reached by the defendant’s duly appointed Inspector on 20^th June 2016. In the first decision she granted approval under Schedule 2 part 3 paragraph Q2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 for the conversion of an agricultural barn to a single dwelling. In the second decision she awarded costs against the claimant and in favour of the appellant, who is the interested party in these proceedings. The claim raises issues in relation to the proper construction of the 2015 Order and the approach to it taken within the Planning Practice Guidance (“PPG”) current at the time of the decision.

I would wish to place on record my thanks to counsel for their helpful and carefully considered written and oral submissions.

On 6^th October 2015 the interested party made an application for prior approval for development described as follows:

“conversion of an agricultural barn to one dwelling location within agricultural field to the south of Woodside Cottage within the Hamlet of Broxbourne Common to the West of Broxbourne.”

The application was made under Class Q of the 2015 Order (which is set out in detail below). Class Q grants change of use from agricultural to C3 residential use together with “building operations reasonably necessary to convert the building” being permitted development without the need for the grant of planning permission subject to criteria and conditions, including in some cases a prior approval process. Paragraph Q1 sets out a number of grounds for excluding the development from this class of permitted development. In the event it was common ground between the claimant and the interested party that none of those exclusions applied to this proposal.

Paragraph Q2 (which is also set out in full below) sets out that where both the change of use of an agricultural building and reasonably necessary building operations are proposed the permitted development is subject to a condition that before development can commence prior approval is granted in relation to a number of material factors. To focus upon the issue which ultimately led to the claimant refusing the application, the aspect of the proposal which became contentious was that comprised in paragraph Q2(1)(e) namely:

“whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within class C3(dwelling houses) of the Schedule to the Use Classes Order.”

Within the application the agent acting on behalf of the interested party stated as follows in support of the grant of approval:

“(e)

The barn is located in a small clearing within Broxbourne woods known as the Broxbourne Common in which a number of existing dwellings are also located. Therefore, the addition of a further dwelling to Broxbourne Common would not significantly increase the housing density and would improve the rural housing supply in that area by converting this, now redundant, agricultural barn.

Broxbourne Common is served by local transport network PWP 1 which runs from Paradise Wildlife Park, approximately 20 minutes walk away, to Broxbourne High Street (8 minutes) and Broxbourne Railway Station (15 minutes), Local shops, at the crossroads of the High Street and B194, are only 8 minutes walk from the High Street bus stop.

Local schools are a mere 7 minute walk from their respective bus stops and both take 7 minutes by car.

Alternatively, these local amenities can all be easily accessed on bicycle and indeed Cock Lane, Broxbourne Common is part of the National Cycle Network, see Appendix E.

HOWEVER:-

Paragraph 109 ref ID 13-108-20150305 of the Department for Communities & Local Government Planning Practice guidance states:-

“The permitted development right does not apply a test in relation to location as it is recognised the many agricultural buildings are not likely to be in villages and are unlikely to rely on public transport for their daily needs.”

It is suggested that the Council, therefore, should judge whether the location and siting of the building would be “impractical” or “undesirable” to a change of use.

Paragraph 109 ref ID 13-109-20150305 of the Department for Communities & Local Government Planning Practice guidance states:-

Impractical or undesirable are not defined in the regulations but the Council should apply a “reasonable ordinary dictionary meaning”. Impractical would mean “not be sensible or realistic” and undesirable would mean “harmful or objectionable”

It goes further to confirm that if a barn is in a location “where the local planning authority would not normally grant planning permission for a new dwelling” this is “not a sufficient reason for refusing prior approval”

Also if the meaning of these words are to be an ordinary dictionary definition found in the English dictionary we suggest this would not refer to planning definitions, for instance, the use of “Harmful” would not automatically mean harmful to the green belt.”

The claimant’s officers responded to the application and the single point of controversy which they raised in respect of the approval was in respect of the undesirability of the change of use proposed. Their conclusions which led to the refusal of the application were expressed in the following terms:

“(e)

Whether siting of the building is impractical, undesirable for the change of use from agricultural to residential (Class C3) – In assessing part (e) of Condition Q.2 (1) (e), regard shall be had to the provisions of paragraph W of this Part, which states at (10) (b) that the local planning authority shall, when determining an application

‘have regard to the National Planning Policy Framework issued by the Department for Communities and Local Government in March 2012, so far as relevant to the subject matter of the prior approval, as if the application were a planning application’.

In this case it is considered that the isolated and unsustainable location of the site would mean that the introduction of a new residential use would result in harmful impact that cannot be mitigated.

Having regard to the above considerations, in respect of the update to the NPPG, I consider that limited weight should be given to the guidance due to the conflict with the Order. Furthermore, case law has shown that guidance notes do not override the law and therefore, in this case a decision must be made based upon the Order and not the guidance notes.

In assessing whether the site is undesirable, the National Planning Policy Framework states at paragraph 49 that housing applications should be considered in the context of the presumption in favour of sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. This is not the case for this site. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as (inter alia) where the development would re-use redundant traditionally constructed agricultural buildings and lead to an enhancement to the immediate setting.

In this case the application whilst it is acknowledged that there are a group of existing dwellings nearby (Woodside, Briar Cottage and The Studio) the proposal would nevertheless result in the creation of a dwelling in an isolated location some considerable distance from a village or any services and there is no adequate sustainable transport near the site. The application confirms that the nearest bus service connection to services is approximately 20 minutes walking distance from the site.

It is also considered that the proposal would provide no great enhancement to its setting (paragraph 55 of the NPPF refers). On this basis, there being no further justification for the proposed dwelling, it is considered that the location of the building is essentially in an unsustainable location and no significant enhancement is achieved by the conversion.

Officers have reviewed the changes issued in the National Planning Policy Guidance (NPPG), in terms of what is meant by impractical or undesirable for the change to residential use. Officers remain of the view that the site is undesirable, in that as detailed above, it would be harmful and objectionable to allow a change of the use of the building to residential in a fundamentally unsustainable location.

Overall it is considered undesirable for the building to change from agricultural use to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order.”

This led to a refusal of the application couched in the following terms:

“the proposal would create an isolated dwelling in the countryside away from key services and infrastructure such as public transport, schools and shops. The location of the building is undesirable for use falling within Class C3(dwelling houses) of the Schedule to the Use Classes Order and it would result in an unsustainable form of development contrary to the provisions of the National Planning Policy Framework.”

The interested party appealed to the defendant. In the course of the documentation supporting that appeal the interested party relied upon the provisions of paragraphs 108 and 109 of the PPG which are set out below. The interested party drew attention to three earlier appeals in which the claimant had sought to refuse on grounds similar to that of the present case and the appeals had been allowed, in the third case accompanied by an award of costs. An application for the costs of the appeal was made by the interested party on the basis that the claimant had ignored the “precise and specific” PPG guidance and continued to take decisions contrary to earlier appeals where their views had been rejected.

The claimant responded to the appeal contending that there was conflict between the PPG’s guidance and the terms of the Order. It was contended that the guidance could not alter the proper interpretation of the 2015 Order. The following was observed within the claimant’s representations on the appeal:

“3.15

The Council has sought legal advice as to whether its interpretation of this matter is correct as a matter of law. The advice received states that as a matter of law, the GPDO requires it, when considering whether or not to grant prior approval for the conversion of an agricultural barn to a dwelling, to take into account all policies of the NPPF that would ordinarily be relevant to the question of the practicality or desirability of allowing such development in whatever location is proposed. Therefore, it is considered that paras. 108 and 109 of the NPPG (which suggest that a LPA must exclude such policies of the NPPF from consideration) are wrong. The Council have therefore in the consideration of this application had regard to the NPPF so far as it is relevant to the consideration of the subject matter of this application, as required by the Order.

4.

Consideration of undesirable location in respect of the appeal site

4.1

The site falls within a rural area within the Green Belt. The National Planning Policy Framework states at paragraph 49 that housing applications should be considered in the context of the presumption in favour of sustainable development. Paragraph 55 states that in order to promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. This is not the case for this site, whilst it is acknowledged that there is a group of existing dwellings nearby (Woodside, Briar Cottage and The Studio) the proposal would nevertheless result in the creation of a dwelling in an isolated location some considerable distance from a village or town. Furthermore, there is no adequate sustainable transport near the site. The application confirms that the nearest bus service connection to services in Broxbourne is approximately 20 minutes walking distance from the site. Residents would clearly be reliant on the private car for all journeys.

4.2

It is also considered that the proposal would provide no great enhancement to its setting (paragraph 55 of the NPPF refers). On this basis, there being no further justification for the proposed dwelling, it is considered that the location of the building is essentially in an unsustainable location and no significant enhancement is achieved by the conversion.

5.

Conclusion

5.1

The Council considers that it is undesirable for the building to change from agricultural use to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order in that its location is undesirable and unsustainable.”

The application for costs was resisted along similar lines namely that the position of the PPG was wrong in law and should not be followed.

As set out above the Inspector allowed the appeal and granted the approval. Her reasons for doing so were set out in the following terms:

“4.

This appeal relates to a detached agricultural barn. It comprises corrugated sheeting and is part blockwork in structure and has a mezzanine level. It is set back from the main road frontage but relatively close to an established cluster of residential properties.

5.

The GPDO advises at W (10) (b) that in terms of prior approval, the local planning authority must have regard to the National Planning Policy Framework March 2012, so far as relevant to the subject matter to the prior approval. The Planning Practice Guidance (PPG) provides the most up to date guidance on the interpretation of Class Q and I have attached substantial weight to this document. It states at paragraph 108 that the permitted development right does not apply a test in relation to sustainability of location. The text goes on to state that this is deliberate as the right recognises that many agricultural buildings will not be in a village settlement. Instead, the PPG goes onto explain at paragraph 109 that the local planning authority can consider whether the location and siting of the building would make it impractical or undesirable to change to a house. That an agricultural building is in a location where the local planning authority would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval.

6.

Notwithstanding this text, the Council contend that the proposal would create an isolated dwelling in the countryside and the location of the building is unsustainable. On this basis, the Council state the building is undesirable for a use falling within Class C3. To my mind, the PPG makes it clear that it does not apply a test in relation to the sustainability of the location. As such, I cannot agree with the approach adopted by the Council in terms of the sustainability issues raised in relation to paragraphs 49 and 55 of the Framework. The Council state that there is a conflict between the PPG and the requirements of the Order. In my view, there is no conflict between the general presumption in favour of sustainable development set out within the Framework and the very clear guidance identified at paragraphs 108 and 109 of the PPG in relation to this part of the GPDO. Furthermore, the Council advise that they have sought legal advice on this matter. However, this has not been made available and as such, limits the weight which I can attach to it in support of the Council’s case.

7.

My attention has been drawn to a number of appeal decisions where the interpretation of sustainability in relation to Class Q has been considered. These decisions are consistent with my approach set out above. I have had regard to these decisions in reaching my conclusions below.

8.

The council have confirmed that the alterations proposed to the building would be in keeping with the character and appearance of the building and the rural area. The Council have also confirmed that the site access would be acceptable. There would also be no contamination, noise or flood risk issues at the site. I can see no reason to take a contrary view in relation to these matters. As matters stand, it can therefore not be argued that it would be impractical or undesirable to convert the building to residential use.”

The Inspector also acceded to the interested party’s application for costs and expressed her reasons in the following terms:

“4.

For the reasons explained within my decision, I disagree with the approach taken by the Council. The PPG makes it clear that the permitted development right does not apply a test in relation to the sustainability of the location. The appeal decisions referred to are also consistent with this approach. In addition, the costs decision referred to by the appellant also reiterated that the approach adopted was not one which was supported. In my view, the Council acted unreasonably by failing to give these decisions due weight in assessing the appeal proposal. The Council supported their case at appeal regarding the interpretation of the GPDO by stating that legal advice had been sought in relation to the issue of sustainability relative to guidance contained within the PPG. However, this legal advice has not been made available. This therefore limits the weight which I can attach to it.

5.

The appellant was formally represented at both the application stage and also at the appeal. For the reasons explained above, I am of the view that the appellant has incurred unnecessary and wasted expense. As a result, I therefore conclude that unreasonable behaviour resulting in unnecessary or wasted expense has been adequately demonstrated and accordingly, an award of costs is therefore justified.”

The definition of development, which is regulated by the Town and Country Planning Act 1990, is contained within section 55 of the Act. It includes, by section 55(1), changes of use or building operations within the definition of development. The actions and activities covered by Class Q of the 2015 Order therefore fall within the definition of development. Section 59 of the 1990 Act gives the defendant power to provide for the granting of planning permission in respect of types of actions or activities which are within the definition of development by a development order; section 60(1) of the 1990 Act indicates that any planning permission granted by a development order may be granted either unconditionally “or subject to such conditions or limitations as may be specified in the Order”.

Article 3(1) of the 2015 Order grants planning permission for the classes of development which are “described as permitted development in schedule 2”. There are a wide variety of classes of permitted development rights specified in Schedule 2 of the 2015 Order and, as Cranston J observed in Eatherley v London Borough of Camden and another [2016] EWHC 3108, given the width of the subject matter of the GPDO “determining its overall purpose [is] well nigh impossible” bearing in mind “the GPDO covers a disparate collection of topics, minor and not so minor”. In my view it is, therefore, necessary to examine the specific provisions of each class of permitted development in order to understand and interpret that class, using where necessary the Explanatory Memorandum which accompanied the establishment or alteration of that class.

In the present case, as will be obvious from what is set out above, the class which was relevant to the application was Class Q, the change of use of agricultural buildings to dwelling houses. Class Q is described in the following terms:

“Q. Permitted development

Development consisting of -

(a)

a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order; and

(b)

building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class C3 (dwellinghouses) of that Schedule.”

As set out above, paragraph Q1 provides a variety of bases upon which the change of use from an agricultural building to a dwelling house is excluded from the entitlement to permitted development. Paragraph Q2 then provides as follows:

“Q2. Conditions

(1)

where the development proposed is development under Class Q(a) together with development under Class Q(b), development is permitted subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to -

(a)

transport and highways impacts of the development,

(b)

noise impacts of the development,

(c)

contamination risks on the site,

(d)

flooding risks on the site,

(e)

whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order, and

(f)

the design or external appearance of the building,

and the provisions of paragraph W (prior approval) of this Part apply in relation to that application.”

As will have been seen, paragraph W is said to apply to the prior approval process. Paragraph W is specifically entitled “procedure for applications for prior approval under Part 3”. It contains a variety of provisions of a procedural character to be followed in applying for and determining a prior approval application. In particular paragraph W(10) provides as follows:

“(10)

The local planning authority must, when determining an application –

(a)

take into account any representations made to them as a result of any consultation under sub-paragraphs (5) or (6) and any notice given under sub-paragraph (8);

(b)

have regard to the National Planning Policy Framework issued by the Department for Communities and Local Government in March 2012

so far as relevant to the subject matter of the prior approval, as if the application were a planning application”

What is now Class Q was originally introduced in to the Town and Country (General Permitted Development) Order 1995 by the Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014 as class MB. An Explanatory Memorandum was produced at the time when these changes to the 1995 Order were made. The purpose of the instrument was described as follows:

“these changes will simplify the change of use system and promote the provision of new homes, nurseries and schools in England.”

This purpose was elaborated upon in a section of the explanatory memorandum entitled “policy background” in the following manner:

“7.1

We are creating new permitted development rights in order to make it easier for businesses to make best use of their premises; deliver more homes; support high streets; simplify the change of use system; support sustainability by promoting the reuse of buildings; and facilitate the provision of registered nurseries and state-funded schools. The new permitted development rights, most of which sit within Part 3 of Schedule 2 to the General Permitted Development Order, are as follows…

7.4

Under new Class MB agricultural buildings will be able to change to up to three dwellinghouses(C3), and carry out associated building works, so that rural businesses can diversify while increasing housing supply. The rights will not apply to land protected by article 1(5) of the General Permitted Development Order (National Parks, the Broads, areas of outstanding natural beauty, conservations areas, World Heritage Sites and certain areas specified under the Wildlife and Countryside Act 1981). Prior approval (covering highways, transport and noise impacts, risks of contamination and flooding, location and siting of the building, and the design and external appearance of the building) is required to ensure that the change of use and any associated works do not create unacceptable impacts. Up to 450 square metres of agricultural building will be able to change to residential use for up to three dwellings.”

In Waltham Forest LBC v SSCLG 2013 EWHC 2816 Mr Vincent Fraser QC sitting as a Deputy High Court Judge found that the interpretation of the term “eaves” which was provided in the defendant’s Guidance as to how that term was to be interpreted for the purposes of its use within the 1995 Order was incorrect, and did not reflect the proper interpretation in law of that term. The Deputy Judge accepted the submissions made by the claimant’s counsel in that case that the interpretation from the Guidance added a gloss or qualification to the term and its application, which was not properly founded upon a correct legal understanding of the term “eaves”. That authority is an illustration of the point which was common ground between the parties in the present case that the PPG, whilst a potential aid to construction, could not itself define the meaning in law of the provisions of the 2015 Order. The correct interpretation of the 2015 Order is a matter of law for the court.

The provision of the National Planning Policy Framework (“The Framework”) upon which the claimant relied in resisting the grant of approval was in particular at paragraph 55. Paragraph 55 of the Framework provides as follows:

“55.

To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. For example, where there are groups of smaller settlements, development in one village may support services in a village nearby. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as:

● the essential need for a rural worker to live permanently at or near their place of work in the countryside; or

● where such development would represent the optimal viable use of a heritage asset or would be appropriate enabling development to secure the future of heritage assets; or

● where the development would re-use redundant or disused buildings and lead to an enhancement to the immediate setting; or

● the exceptional quality or innovative nature of the design of the dwelling. Such a design should:

–– be truly outstanding or innovative, helping to raise standards of design more generally in rural areas;

–– reflect the highest standards in architecture;

–– significantly enhance its immediate setting; and

–– be sensitive to the defining characteristics of the local area.”

The PPG provides guidance in relation to the application of class Q. It will be evident from what has been set out above that paragraphs 108 and 109 under ID reference 13-108-20150305 and 13-109-20150305 were particularly in point in the present case. They provide as follows:

“Is there a sustainability prior approval for the change to residential use?

The permitted development right does not apply a test in relation to sustainability of location. This is deliberate as the right recognises that many agricultural buildings will not be in village settlements and may not be able to rely on public transport for their daily needs. Instead, the local planning authority can consider whether the location and siting of the building would make it impractical or undesirable to change use to a house.

What is meant by impractical or undesirable for the change to residential use?

Impractical or undesirable are not defined in the regulations, and the local planning authority should apply a reasonable ordinary dictionary meaning in making any judgment. Impractical reflects that the location and siting would “not be sensible or realistic”, and undesirable reflects that it would be “harmful or objectionable”.

When considering whether it is appropriate for the change of use to take place in a particular location, a local planning authority should start from the premise that the permitted development right grants planning permission, subject to the prior approval requirements. That an agricultural building is in a location where the local planning authority would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval.

There may, however, be circumstances where the impact cannot be mitigated. Therefore, when looking at location, local planning authorities may, for example, consider that because an agricultural building on the top of a hill with no road access, power source or other services its conversion is impractical. Additionally the location of the building whose use would change may be undesirable if it is adjacent to other uses such as intensive poultry farming buildings, silage storage or buildings with dangerous machines or chemicals.

When a local authority considers location and siting it should not therefore be applying tests from the National Planning Policy Framework except to the extent these are relevant to the subject matter of the prior approval. So, for example, factors such as whether the property is for a rural worker, or whether the design is of exceptional quality or innovative, are unlikely to be relevant.”

Whilst the PPG speaks in terms of “sustainability” of location it was agreed between the parties at the hearing that in truth what is being addressed in paragraph 108 is “accessibility” of location, both in terms of the generation of travel demand and distances to work, services and facilities and also in terms of the ability to obtain access to destinations by choice of modes of travel and in particular slow modes. This concept is of course a key ingredient in the much broader multi-faceted concept of sustainable development. For the balance of this judgment I shall refer to that which is spoken to by paragraphs 108 and 109 as accessibility for the avoidance of confusion.

On behalf of the claimant Ms Clutten submitted that the decision-maker on an application under Class Q of the 2015 Order is required to consider whether or not the change of use of an agricultural building to a dwelling house is “undesirable” applying the policies of the Framework in accordance with paragraph W(10). The application of the policies of the Framework include applying paragraph 55 of the Framework and avoiding “new isolated homes in the countryside” in the absence of the special circumstances identified by the policy. She submits that paragraphs 108 and 109 of the PPG purport to exclude any consideration of accessibility in the assessment of whether or not the proposed change of use is undesirable, and as such are inconsistent with the provisions of the 2015 Order. The claimant was therefore correct in submitting to the Inspector that those paragraphs did not properly reflect the law. The objections of the claimant based upon paragraph 55 of the Framework were legitimate and could not be effectively set aside by the PPG. As a consequence she submitted that the Inspector had fallen into legal error, namely she had failed to take into account a relevant consideration in the form of paragraph 55 of the Framework so far as it was relevant to development of a dwelling in an isolated location, or alternatively she submitted that the Inspector’s decision was irrational in so far as it was suggested that as a matter of planning judgment the Inspector could exclude from her deliberations the application of paragraph 55 of the Framework.

On behalf of the defendant Mr Flanagan submitted that the provisions of Class Q had to be understood in the context of the Explanatory Memorandum at the point when the class was introduced. He submitted, based on the Explanatory Memorandum that the purpose of introducing the class was to promote the provision of new homes. Thus he submitted that the interpretation of the term “undesirable”, and the application of the Framework, had to be undertaken bearing in mind that the purpose of introducing this class of permitted development was so as to enable the change of use of agricultural buildings to dwellings in circumstances where development might not be granted pursuant to a conventional application. Mr Flanagan accepted on behalf of the defendant that the term “undesirable” was capable of accommodating considerations related to the accessibility of the location of the proposal. However, he submitted that as a consequence of the purpose of the legislation being to approve homes where they would not otherwise ordinarily be granted permission a higher bar for the test of unacceptability of accessibility had to be applied. Simply applying the test in paragraph 55 of the Framework, without consideration being given to this aspect of the purpose of the creation of this class of permitted development, would be illegitimate.

Mr Flanagan submitted that this approach was embodied within the PPG. He contended that paragraphs 108 and 109 did not suggest that accessibility was an irrelevant consideration, but made clear that reliance simply upon accessibility of location generally, or the fact that the agricultural building was in a countryside location where normally planning permission would not be granted, would not amount to a proper reason for refusing prior approval. The reason why it would not is grounded in the purpose of the introduction of this class of development as set out above. The first sentence of paragraph 108 is drawing attention to the fact that unlike, for instance, noise or contamination, the accessibility of the location of the building is not one of the matters specified within the condition pertaining to prior approval in paragraph Q2(1). There is nothing in paragraph 109 that suggests that in a case of an extremely undesirable location from the perspective of accessibility that refusal of the approval could not be appropriate. What the paragraph is pointing out is that the fact the agricultural building is in a location where planning permission would not normally be granted for a new dwelling, is not in itself a sufficient reason for refusing prior approval. In that paragraph W(10) incorporates a requirement to have regard to the Framework that brings in the necessity to also have regard to the PPG and the guidance provided by paragraphs 108 and 109.

Turning to the decision letter itself Mr Flanagan submitted that the Inspector was, in particular in paragraphs 5 and 6 of her decision, properly rejecting the arguments advanced by the claimant based upon the application of paragraph 55 of the Framework as if this were an application for planning permission, as opposed to a prior approval in relation to a class of permitted development for which there was a qualified entitlement. She had noted that the dwelling was adjacent to a cluster of residential properties and rejected the Council’s suggestion that paragraph 55 provided a sound basis for refusing the approval. As such she properly addressed the submissions which were made to her and having rejected them had no other basis upon which to refuse the approval.

In response to the defendant’s submissions about the purpose of the introduction of this class of permitted development, Miss Clutten observed that in paragraph 7.4 of the Explanatory Memorandum the purpose of housing is carefully qualified by the delivery of that housing not causing “unacceptable impacts”. She submitted that in truth the purpose of the legislation was to facilitate housing conversions, not to permit housing where it would not otherwise normally be permitted. The advantages of the prior approval process were a simpler, cheaper and potentially quicker approval process where the assessment of material considerations would be confined to those identified within paragraph Q2(1). She contended that the submission made by Mr Flanagan in relation to accessibility being relevant but only a basis for refusal in extreme cases did not find any expression in the PPG. Further, and in any event, she submitted that the PPG could not affect the proper legal interpretation of the term “undesirable”.

Turning to the decision in relation to costs, Miss Clutten submitted that just as in the case of Waltham Forest, if the claimants succeeded in its legal submissions as to the proper approach to the 2015 Order, and the substantive decision on the merits was found to be flawed, then those flaws would likewise infect the Inspector’s conclusions in relation to costs and that decision could not stand either. Whilst not demurring from that approach Mr Flanagan added that the defendant in any event relied upon the Inspector’s decision on costs being appropriate in the circumstances where there were other appeal decisions which had been adverse on this issue to the claimant and that they had not disclosed the legal advice upon which they relied to advance their contentions.

There was some debate during the course of the hearing as to whether or not it could properly be said that Class Q established “the principle of development”. Ultimately the position which emerged after argument, and which appeared to be agreed, was that a question of this kind depended critically on the requirements of the class in question. Some classes permitted some types of development entirely unconditionally. In Murrell v SSCLG 2010 EWCA Civ 1367 Richards LJ, in giving the leading judgment of the Court of Appeal in that case, noted that the type of permitted development with which the court was there concerned under Schedule 2 Part 6 Class A effectively created permitted development which was comparable to outline planning permission, in the sense that the matters for prior approval were confined to an assessment of siting, design and external appearance.

In the recent of case R (on the application of Patel) v SSCLG and others 2016 EWHC 3354 Ouseley J was concerned with a case under Schedule 2 Part 3 Class M of the 2015 Order which was subject to a prior approval process requiring assessment of the “adequate provision of services of the sort which may be provided by a building falling within Class A1 (shops) or, as the case may be, Class A2 (financial and professional services) of that Schedule, but only where there is a reasonable prospect of the building being used to provide such services”. The Judge’s attention was drawn to provisions of the PPG and he observed as follows:

“48.

The Planning Practice Guidance, a Government document of lower status than the NPPF states, for what it is worth, that, when considering prior approval, a local planning authority “cannot consider any other matters [than those set out in full in the relevant parts of Schedule 2]”. An application for prior approval is described as having “much less prescriptive” requirements than an application for planning permission; it is a “light-touch process which applies where the principle of the development has already been established.”

49.

I am not clear how far that last sentence can apply where the Class itself requires the evaluation of an issue on which the NPPF has a policy, which goes to the very question of whether the development is acceptable. It is difficult to say that the principle has been established, other than conditionally and the condition here is no mere technical issue.”

Thus in that instance Ouseley J does not seem to have considered that the principle of development was established other than conditionally. It is therefore necessary, in my judgment, to examine the purpose of the legislation and in particular requirements of an individual class to properly interpret its provisions. In my view Class Q creates a qualified entitlement to permitted development, the entitlement being qualified by the satisfaction of the conditions set out as the questions for the prior approval process.

Turning to the purpose of the legislation creating this class of permitted development, having considered the provisions of the Explanatory Memorandum I am satisfied that the purposes of the creation of this new permitted development right was clearly to “deliver more homes” and to increase housing supply. I am unable to accept the submission of Ms Clutten that the purpose of creating this class of permitted development was in essence purely procedural, or that the absence of the need to apply section 38(6) of the Planning and Compulsory Purchase Act 2004 requiring the determination to be made in accordance with the development plan unless material considerations indicated otherwise is purely the purpose engaged here. The outcome which the legislation has in mind is clear and, as submitted by Mr Flanagan, is intended to lead to the development of residential uses in locations which would not ordinarily be contemplated by the undiluted application of, for instance, policies in the Framework relating to location.

Turning to the meaning of the term “undesirable” in this context I am satisfied that it is a word that calls for an exercise of planning judgment. I have reached that conclusion since it is an adjective with a potentially broad meaning and purview, used within the context of an approval process in planning legislation. The planning judgment to be made arises in the context of the qualified entitlement that Class Q creates and the purpose for establishing that qualified entitlement set out above. Given that conclusion, an error of law could only arise if that planning judgment were affected by one of the traditional public law grounds of challenge. I would not accede to Ms Clutten’s submissions in so far as she seeks to argue that the term “undesirable” is (like the noun “eaves” in the Waltham Forest case) a word requiring an elaborate legal definition. It is a term which calls for a planning judgment from the decision-maker framed by the particular context in which it arises, namely that this is an application for prior approval of a form of permitted development created for the purpose of increasing the supply of housing, and not an application for planning permission. In my view it is perfectly reasonable to expect that this planning judgment will be reached against the backdrop of the purpose for creating this class in the first place.

What I now observe in the following paragraphs is therefore relevant to Ms Clutten’s contentions that the Inspector had failed to have regard to a material consideration in that she left out of account the application of paragraph 55 of the Framework, or alternatively reached a planning judgment which was irrational in that she failed to have regard at all to the accessibility of the agricultural building which was the subject of the application.

In my judgment Mr Flanagan was correct to accept that the planning judgment to be exercised is not one in which accessibility is ruled out or rendered completely irrelevant by the context of the prior approval of this class of development. However, that assessment of location, as distinct perhaps from other aspects of the desirability of location such as the impact of odour or dust from adjacent developments, has to be examined through the prism of the purpose of the legislation. To apply in the planning judgment, for instance, the policies of the Framework with the same rigour in respect of accessibility of residential development to the Class Q prior approval process as would be applied to an application for planning permission for residential use would have the potential to frustrate the purpose of the introduction of the class, namely to increase the supply of housing through the conversion of agricultural buildings which by definition will very frequently be in the open countryside. Thus, as Mr Flanagan submits, whilst accessibility is not an irrelevant consideration when considering Class Q2(1)(e), the bar in relation to the test of unacceptable inaccessibility will necessarily be set significantly higher than it would in the context of an application for planning permission.

I do not consider that this approach to the exercise of the planning judgment of what may be “undesirable” about the location of the agricultural building in the context of Class Q is in any way undermined by the reference within paragraph W(10)(b) to the requirement for the local planning authority to have regard to the Framework when considering a prior approval application “as if the application were a planning application”. That application of the Framework must be undertaken in the context of a proper understanding of the test being considered, namely in this case undesirability of location. It is in the context of an understanding of Class Q2(e) that the Framework must be applied. The Framework cannot be applied so as to frustrate the purpose of identifying the class of permitted development in the first place.

I have concluded, but not without some hesitation, that the PPG in paragraphs 108 and 109 reflect this approach. It has to be observed that those paragraphs do not capture, either crisply or comprehensively, the approach to the planning judgment of whether the location of the agricultural building is desirable which was articulated by Mr Flanagan and which I have set out above. What the paragraphs do, however, is helpfully set out that there is no specific requirement within the paragraph Q2(1) in relation to accessibility of location, and also that the fact that an agricultural building is in a location where planning permission would not normally be granted for accessibility reasons will not amount to a sufficient reason for refusing prior approval. Both of those observations are apposite and reflect the approach to requiring a far stronger objection on accessibility grounds than would be required to resist a planning application for the reasons which have already been set out above.

Against the backdrop of these considerations I turn to consider the legality of the decision which was reached by the Inspector in the present case. In doing so it is important to bear in mind the nature of the case which was being made by the claimant as to why the prior approval should be refused. Their case, as set out above, was that by virtue of paragraph 55 the location of the agricultural building to be converted was in a location which was unacceptable for accessibility reasons. The application of paragraph 55 to the location led to the conclusion that the proposal should be refused. In essence this argument was the equivalent of an argument that the prior approval should be refused because the agricultural building was in a location where the claimant would not normally grant planning permission for a new dwelling on accessibility grounds. That was a contention which was contrary to the guidance in paragraphs 108 and 109 which for the reasons I have already given, I accept is consistent with sensible parameters for the exercise of the planning judgment required. It follows that the Inspector was entitled, as she did in paragraph 6 of her decision, to conclude that the Council’s objections based on paragraph 55 of the Framework could not be maintained. No alternative basis of refusal was presented by the claimant other than the undiluted application of paragraph 55 of the Framework. Having rejected that contention the Inspector was entitled to form the view which she did in paragraph 8 of the decision that it could not be argued that “it would be impractical or undesirable to convert the building to residential use”.

It follows that I am satisfied that the Inspector’s decision in this case was not the subject of legal error and she was entitled to form the conclusions which she did. Her rejection of the claimant’s argument that paragraph 55 of the Framework should be applied with full vigour to this prior approval in forging her planning judgment on whether the change of use of this agricultural building was in an “undesirable” location, was clearly open to her and reflected the particular context in which her judgment had to be reached. On this basis her decision in relation to the interested party’s costs application was also without legal flaw. Having reached the conclusions which she did, and which in my view were justifiable, and having disagreed with the approach of the claimant for legally defensible reasons, she was further entitled to form the view in reliance upon earlier decisions of a like nature that the Council’s refusal in the present case was one which was unreasonable and that costs should be awarded.

It follows that for all of the reasons which I have given both of these claims must be dismissed.