Workshop: But do I need permission anyway?

One of the key features of modern public law is the huge variety of different permits, licences and consents that are needed for all sorts of activities. As well as the obvious ones, such as planning permission and work permits, there are sex shop licences, filming permits, skip licences, felling licences, scheduled monument consent, fishing permits, consent under the building regulations - and many, many others.

Each of these is subject to a statutory regime, under an act or regulations, that specifies when a permit or licence is required; how it can be obtained; what can be done if it is not forthcoming; and what happens if the activity in question is carried out without the necessary authorisation. And in some cases permission is granted automatically by the relevant regulations, regardless of the desirability or otherwise of the activity. But the difficulty is often that there are a plethora of exceptions to the need for consent to be obtained, and in some cases a great volume of case law. It can be difficult then, especially for non-lawyers, let alone lay members of the public, to find out the true position.

In the case of planning permission, there is a procedure by which it is possible to seek a binding opinion from the relevant authority, known as a "certificate of lawfulness" - and if such a certificate is not forthcoming, to seek one from the secretary of state. But in the case of many other permits and consents, there is no similar procedure. So, for example, even within the planning system, there is no way of obtaining a binding determination of whether a particular proposal requires consent under the Control of Advertisements Regulations 2007 or the Trees Regulations 2012. And if you ask the local authority officer, he may give you the wrong answer. Or, more worryingly, he may decide that your proposal is for some reason undesirable, and tell you to apply for consent so that he can refuse it.

Captain Mainwaring's pillbox

This was the position facing Mr Chambers, the owner of a farmhouse in Surrey that was listed as a building of special interest. He wanted to remove a very large clump of ivy in his garden, but discovered that it was in fact a concrete pillbox that had been built for the Home Guard during the war. He asked the planning authority whether he needed 'listed building consent' to demolish it, but to be on the safe side applied for such consent anyway (listed building consent is distinct from planning permission, and a failure to obtain it may lead to a criminal prosecution).

The authority told him that consent was required, and refused to grant it. Chambers sought the advice of counsel, who considered that for various reasons consent would not be required to demolish the pillbox. He accordingly sought a declaration from the High Court to that effect.

The court accepted that it had jurisdiction to grant a declaration, but declined to grant one, deciding instead that the correct procedure in such a case was to appeal to the secretary of state against the refusal of consent on the sole ground that consent was not required (see Chambers v Guildford [2008] JPL 1459, QB) - however perverse that might seem. He accordingly appealed, explaining why he considered that he did not need consent. The secretary of state agreed with him, accepting that consent was not required - and took no action on the appeal (the decision was noted at [2009] JPL 1238). The pillbox was duly demolished the next day.

Since then, parliament has introduced (in the Enterprise and Regulatory Reform Act 2013) a new formal procedure to obtain a certificate as to whether listed building consent is required.

But that still leaves many hundreds of statutory regimes where no such procedure is available. And the the approach taken by McCombe J in Chambers has been accepted by the court as being correct in relation to consent under tree preservation regulations (in Palm Developments v Secretary of State [2009] 2 P&CR 16 at [34],[65]) and consent under the advertisements regulations (in R (Thomas) v National Assembly for Wales [2009] EWHC 1734 (Admin) at [36]).

So it also presumably applies in ?relation to any of the other statutory regimes for permits, licences and consents, mentioned above.

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