A forestry prior-approval appeal in Croydon has been dismissed after an Inspector found that the physical works needed to create a usable access were an engineering operation — and that a 2003 Article 4 Direction had already removed the relevant permitted-development right.
Appeal 6008014, concerning land north of Longwood Road in Kenley, is a particularly useful reminder that two different legal questions can easily become muddled.
A landowner may have a private or common-law right of access, but that is not planning permission for the engineering works needed to create the access on the ground. And a prior-approval application cannot revive a permitted-development right that an Article 4 Direction has lawfully withdrawn.
What was proposed at Kenley?
The appeal followed Croydon’s refusal of prior approval under Article 3(1) and Schedule 2, Part 6, Class E of the General Permitted Development Order 2015.
Part 6 forestry permitted development can include the formation, alteration or maintenance of private ways where the statutory conditions are met and the works are reasonably necessary for forestry purposes.
The appellant proposed a private way for forestry machinery on a holding of about four hectares. The appeal site itself was around 1.96 hectares and included an existing field gate near Hawkhirst Road.
The existence of that gate became important, because the appellant argued that it provided an existing access and also relied on private or common-law rights to pass over the land.
The gate did not mean there was a usable vehicular access
The Inspector found that the physical condition of the land told a rather different story.
Concrete blocks and rubble had been placed in front of the gate to prevent vehicle access. The blocks had later been cemented together by the council and were covered by a substantial earth bund and vegetation. The roadside verge had effectively become indistinguishable from the surrounding land and the gate itself was concealed.
To make the proposed route usable for forestry machinery, the works would require vegetation clearance, excavation and removal of the earth bund, breaking out and removing the cemented concrete blocks and potentially surfacing the access to prevent erosion.
Those were not simply the consequences of exercising a legal right to pass over land. They were physical works to the land.
A legal right of access is not planning permission
Section 55 of the Town and Country Planning Act 1990 treats the carrying out of engineering operations as development. The Inspector considered the scale and character of the works as a whole and concluded that they amounted to the formation and laying out of a new means of access.
The appellant’s claimed private or common-law rights did not change that planning conclusion. A civil right to cross land and the need for planning permission are separate legal questions.
That distinction crops up well beyond forestry. Planning Geek’s guide to permitted development for an access to a highway explains the normal GPDO route, while the planning status of engineering works must still be considered on the facts.
The 2003 Article 4 Direction was decisive
Croydon made a non-immediate Article 4 Direction in 2003 covering designated open land on both sides of Kenley Lane and to the west of Hawkhirst Road. The Secretary of State approved it on 8th August 2003 and Croydon Council confirms that it remains in force.
The appeal decision records that the parties agreed that the Direction was valid, applied to the appeal site and remained operative.
Crucially, the Direction does not withdraw every forestry permitted-development right in the area. Its wording is more specific.
Among the rights withdrawn is the permission for the formation, laying out and construction of a means of access to a highway falling within what was Part 2 Class B of the 1995 GPDO, where that access is required in connection with other Schedule 2 permitted development and the highway is not a trunk or classified road.
The Direction also removes specified rights for gates, fences, walls and other means of enclosure, together with certain temporary uses. Its geographical extent is the land shown on the Direction plan.
That precise wording mattered because the Inspector had already found that the works required to use the gate would amount to forming and laying out a new means of access.
Prior approval could not restore the withdrawn right
The appellant had approached the council through the Part 6 Class E prior-approval procedure. But prior approval is a procedure attached to a permitted-development right; it is not a separate grant of planning permission capable of recreating a right that Article 4 has removed.
Once the Inspector concluded that the necessary engineering works fell within the access development caught by the 2003 Direction, the proposal could not rely on the GPDO for those works. A full planning application was required.
The Inspector therefore did not need to decide whether the proposed forestry works would otherwise have qualified under Part 6 Class E. That point remains deliberately unresolved by this appeal.
Two planning lessons from the Croydon appeal
First, a legal right of access is not planning permission. Ownership, easements and common-law rights may determine whether somebody can lawfully pass over land as a private-law matter. They do not automatically authorise excavation, removal of obstructions, surfacing or other engineering operations needed to create a usable access.
Second, prior approval cannot revive a PD right removed by Article 4. Before making a prior-approval application, applicants need to check not only the current GPDO but any site-specific Article 4 Direction and its exact wording and map.
The lesson is especially important on older Directions. The Croydon Direction was made under the 1995 GPDO, yet it remained operative and was central to an appeal decided in 2026.
Primary sources
The appeal is 6008014, Land on the north side of Longwood Road, Kenley, Croydon CR8 5DX, decided on 2nd September 2026. Read the appeal decision hosted by Planning Geek. The Planning Inspectorate appeal page is also available.
Croydon Council’s Kenley Lane and Hawkhirst Road Article 4 page confirms that the 2003 Direction remains in force. Planning Geek also hosts a local copy of the 2003 Article 4 Direction and map.
Created: 4th September 2026 | Croydon Article 4 Direction
0 Comments