Judge backs judicial review to probe 28-day permitted development rule

A Dorset man has won the right to seek a full judicial review of a council's handling of a prior approval application for an agricultural building near his home, after a High Court judge said the case raised issues of law that require clarification.

London's Royal Courts of Justice
London's Royal Courts of Justice

Brian Pitman, who farms land at Hinton Martell, near Wimborne, had applied to East Dorset Council for prior approval of his barn building plans. The council failed to deal with the application within the 28 days allowed, with the result that he was permitted to commence the development.

High Court judge Mr Justice Gilbart noted that the council had failed to address the application properly and did not consider either the design or location of the proposed barn. It did not seek to consult with Pitman until after the 28-day period had expired, he found.

The site is about 81 metres from a listed cottage and less than 80 metres from Pound Farm. Farm owner Glyn Marshall mounted the judicial review challenge to the council's handling of the application.

Pitman stated that the barn was reasonably necessary for agricultural purposes and was thus permitted by the General Permitted Development Order (GPDO) 2015. He said the barn was needed to house 45 ewes and their lambs during the winter and about ten tonnes of potatoes.

However, the judge noted that these permitted development rights only apply to agricultural holdings of more than five hectares and do not extend to sites within 400 metres of residential properties, save in certain circumstances.

In particular, such buildings may not be used for accommodating livestock, except to house sick, birthing or newborn animals or to provide shelter against extreme weather conditions.

Marshall's lawyers argued that the proposed barn construction, on which work had ceased pending the outcome of the case, fell outside the scope of permitted development rights.

They claimed that Pitman's application was invalid, in that it was wrongly addressed and he did not control five hectares of land. They also submitted that the council had failed to consider the heritage impact of the development.

The council responded that, having failed to determine the application within the required 28 days, it was now bound to give effect to the automatic grant of permitted development rights.

Pitman submitted that his intended use of the barn was to shelter sheep if there was snow on the ground or when giving birth and that his permitted development rights were now impregnable.

In granting Marshall permission to mount a full judicial review challenge, the judge declared his complaints arguable and noted that the case raised interesting issues of law with no clear-cut answers.

In particular, he observed, the question arose as to whether construction of the barn was rendered lawful and immune from enforcement by the council's failure to meet the 28-day deadline.

The extent to which the GPDO was intended to enable farmers to get on with their business once the 28-day period had elapsed would also require analysis, the judge held. 

No date was given for the full hearing of the case.

R on the Application of Marshall v East Dorset Council. Case Number: CO/2364/2017


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