Law on the wrong side of the tracks

The person doing the works has to make sure the development is lawful even if the council has not followed best practice or not responded to the application. In this case the planning authority’s failure to respond to an application as to whether prior approval was required did not automatically result in the granting of planning permission under the Town and Country Planning (Permitted Development) Order 1995 (GPDO) as amended.

Mr Keenan applied to Woking Council in March 2012 for prior notification for a track of 260 metres in length. He said it was ‘reasonably necessary’ for transporting trees and other farm materials.

He didn’t have any response to his application within 28 days, so Mr Keenan proceeded to make up the track on the basis that he had complied with the procedures and had heard nothing more. The council served an enforcement notice against the track, and at the planning appeal inquiry Mr Keenan argued that the notice ought to be quashed because the council had granted permission by failing to respond in time.

The inspector accepted the council’s case: the relevant sections of track were not ‘reasonably necessary’ for the purposes of agriculture or forestry at the time the application was made and so they couldn’t qualify as permitted development.

Mr Keenan lost his High Court challenge to the inspector’s decision. The key issue for the Court of Appeal was whether it was right that Mr Keenan could have permission ‘by default’ because the council did not respond within 28 days and had not explained if it agreed the track met the ‘reasonably necessary’ threshold.

The Court of Appeal held there was no scope for ‘permission by default’. It rejected the argument that the court’s interpretation didn’t help with certainty and efficiency in cases where there was no response from a local planning authority. It added that it would be wrong as a matter of principle for the development to gain planning permission by default only because the council had not responded within 28 days.

This case is a reminder that a wall of silence from a local planning authority in response to a prior approval application cannot make development outside the GPDO lawful. Simply following the procedural aspects of the GPDO cannot take effect to regularise unauthorised development, and so it is important to tread carefully and avoid hasty development in marginal cases as the consequences can prove costly.

For more information on this case, or to discuss any aspect of planning in the context of the GPDO, please contact Matt Gilks or another member of Thrings’ Planning team.

[1] Keenan v Woking Borough Council [2017] EWCA Civ 438

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