Judge quashes permission for polytunnels over failure to consider impact on listed building and ancient woodland

Tim Smith, sitting as a deputy High Court judge, found East Hertfordshire District Council failed to assess the impact of the polytunnels on these.

The claimant, a local resident, complained that the interested party’s plan for three polytunnels had seen these constructed relying on permitted development rights under the Town and Country Planning (General Permitted Development (GDPO)) (England) Order 2015 when the required prior approval should not have been granted.

The polytunnels site is entirely within an area designated as metropolitan green belt and Bayford Wood as an 'ancient woodland' by Natural England.

The interested party intended to grow tomatillos in the polytunnels, a fruit which originates from Mexico and needs the controlled environment of a polytunnel to thrive in the British climate.

The polytunnels each measure 32 metres long by eight metres wide, with a ridge height of 4.9 metres.

An East Hertfordshire planning officer considered the application but did not make a site visit.

She concluded the erection of polytunnels and an access track fell to be considered under Schedule 2, Part 6, Class A of the GPDO and that the scheme was acceptable and prior approval should be granted.

A site notice should then have be erected by the interested party and it was common ground it was not.

Mr Smith said: “The unchallenged evidence in this case is that nobody became aware of the council's decision until 18 June 2024, when a local resident observed heavy machinery on the property.

“The evidence also shows that on 23 June another local resident, concerned by what appeared to be preparations for unauthorised development at the property, contacted the council's enforcement team.”

The team agreed to investigate.

Mr Smith rejected arguments from the claimant that East Hertfordshire failed to require sufficient information to allow a lawful decision on the application.

But he upheld the claims about failures by the council to take account of the impact on Bayford Wood ancient woodland and the claimant’s listed building, named The Gage.

East Hertfordshire argued that the principle of development was already established by the GPDO and the level of detail required for prior approval was much less than for a planning application.

It said the officer’s report included an assessment of the impact of the polytunnels on the surrounding area and concluded this was acceptable.

Since the ancient woodland formed part of the ‘surrounding area’ this conclusion could reasonably be interpreted as encompassing the ancient woodland as well.

Concerning The Gage, the claimant noted this was not referred to in the report even though the National Planning Policy Framework emphasised considering harm to listed buildings caused by development.

East Hertfordshire again argued that the listed building was part of the ‘surrounding area’ and so covered in its report.

Mr Smith said: “Without the benefit of seeing the pleadings I would have had no clue at all that there is a listed building and an ancient woodland in the environs of the works.

“There is no mention of either designation in the report. There is no mention of either designation in any of the application material. There is also no assertion in the witness evidence in these proceedings indicating the officer was aware that The Gage was a listed building or that Bayford Wood was an ancient woodland, despite the fact that the council's evidence was compiled after the statement of facts and grounds had been seen and the complaints of the claimant fully particularised.”

He rejected the idea that The Gage and ancient woodland were covered by the reference to the “surrounding area”.

“I cannot accept that submission,” Mr Smith said. “For this to be the case there would have to be some clues that the officer was even aware of these designations. There are none.”

He added: “The conclusion that I am forced to draw on the evidence is that the officer was simply unaware that there was a listed building and an ancient woodland to be considered here.

“That being so, self-evidently it is impossible to infer that she had proper regard to them in reaching the decision to grant prior approval.”

Looking to previous judgments on reading planning reports without “undue rigour”, Mr Smith said: “I consider that my approach nevertheless heeds this warning. There is a world of difference between a benign reading of what the report means and a creative re-imagining of what it says. The approach urged by the council requires the latter.”

Mr Smith said the prior approval “cannot be allowed to stand” ,and that an earlier Aarhus costs protection should remain at a £5,000 cap for the appellant and £35,000 for the council.

Mark Smulian