Marshall, R (on the application of) v East Dorset District Council & Anor [2018] EWHC 226 (Admin)

Marshall v East Dorset is an important High Court decision on agricultural permitted development under Part 6, Class A of the GPDO. The dispute concerned a proposed agricultural building near Pound Farm at Hinton Martell in Dorset, within 400 metres of several protected buildings.

The case is especially useful for one point which still matters directly today: the limitations in paragraph A.1 define what is permitted development in the first place. The temporary livestock exceptions in paragraph D.1(3), which operate through condition A.2(1)(a), do not rewrite the separate prohibition in A.1(i).

There is an important current-law qualification on the prior approval procedure. Marshall also contained broader reasoning about whether a local planning authority could decide if development fell within the permitted development class during prior approval. The later Court of Appeal decision in New World Payphones v Westminster City Council [2019] EWCA Civ 2250 held that the authority is bound to consider whether the proposal otherwise falls within the definitional scope of the relevant permitted development class. Marshall should therefore not be read on that procedural issue without the later Court of Appeal authority.

Neutral citation

[2018] EWHC 226 (Admin)

Court

High Court of Justice, Queen’s Bench Division, Planning Court

Judgment date

13th February 2018

Judge

Mrs Justice Lang DBE

Case number

CO/2364/2017

What happened at Hinton Martell?

In December 2016, the interested party applied under Part 6, Class A for prior notification of a new agricultural building. The application described an agricultural unit of 11.4 hectares and said the building was reasonably necessary for agriculture.

The application contained an awkward contradiction. One answer said the proposed building would not be used to house livestock, but another said it would be used to winter house 45 ewes and their lambs as well as storing potatoes.

The proposed building was within 400 metres of several protected buildings. That brought paragraph A.1(i) squarely into play because Class A does not permit the erection or construction of a building used or to be used for accommodating livestock within that distance.

The council did not make its determination within the 28 day period. It later issued a decision notice saying prior approval was not required and stating that the development constituted permitted development, while also referring to restrictions on livestock use.

A.1 is part of the permitted development right itself

Mrs Justice Lang treated the structure of Class A as important. The opening wording in Class A describes the development that can benefit from the right, but it has to be read together with paragraph A.1, headed “Development not permitted”.

In practical terms, a proposal caught by an A.1 exclusion never gets through the gateway into Class A permitted development. The later conditions in A.2 apply to development which already falls within the Class. They cannot enlarge the Class or rescue development excluded by A.1.

This distinction is useful well beyond the facts of Marshall. When checking Part 6, it is not enough to establish that the works look like agricultural development and then move immediately to the prior approval conditions. The A.1 limitations have to be checked first.

The 400 metre livestock rule and D.1(3)

The central issue was the relationship between A.1(i), A.2(1)(a) and paragraph D.1(3).

Paragraph A.1(i) excludes the erection or construction of a building, structure or excavation used or to be used for livestock accommodation, or storage of slurry or sewage sludge, where it is within 400 metres of the curtilage of a protected building.

Condition A.2(1)(a) is different. It controls the later use for livestock accommodation of development which has already been carried out within 400 metres. Paragraph D.1(3) then provides limited exceptions for temporary livestock accommodation, such as quarantine, emergencies, sickness, giving birth, newly born animals or extreme weather, subject to the statutory requirements.

The council argued that the D.1(3) exceptions could effectively be read into A.1(i). The High Court rejected that approach. The two provisions deal with different situations. D.1(3) could not be used to make a proposed livestock building permitted development where A.1(i) excluded it in the first place.

That is the part of Marshall which remains particularly important for agricultural advisers. A proposed new livestock building within 400 metres should not be treated as acceptable under Class A merely because the farmer expects the livestock use to fall within one of the temporary D.1(3) circumstances.

What did the missed 28 day deadline do?

The council had missed the statutory period for determining whether prior approval was required. Marshall recognised that the prior approval machinery could no longer be used to require further siting, design and external appearance details once that period had expired.

That did not mean the GPDO had somehow expanded to authorise development falling outside Class A. The court’s analysis of A.1 made clear that the conditions and procedural machinery cannot convert non-permitted development into permitted development.

The practical lesson remains important: expiry of the prior approval period is not a substitute for checking that the proposed development genuinely satisfies the description, limitations and conditions of the relevant Class.

The council’s later decision notice was quashed

The council’s late notice went further than simply dealing with prior approval. It stated that the proposal constituted permitted development. The High Court held the decision was legally flawed and quashed it.

The court did not, however, make a declaration that the building itself was unlawful or incapable of being permitted development. The size of the agricultural unit and the precise proposed livestock use were disputed. Those matters could involve facts and planning judgment which were not appropriate for the court to resolve through a declaration.

The developer therefore remained exposed to possible enforcement action if the works were carried out and did not satisfy Class A, while retaining the option of seeking planning permission or establishing lawfulness through the appropriate statutory route.

Current law: read Marshall with New World Payphones

Marshall also reasoned that the Part 6 prior approval provisions did not empower the local planning authority to make a binding determination that the proposal came within the description of Class A. That aspect of the case should not now be treated as the last word.

In New World Payphones Limited v Westminster City Council [2019] EWCA Civ 2250, the Court of Appeal held that when dealing with a prior approval application the authority is bound to consider and determine whether the proposal otherwise falls within the definitional scope of the relevant permitted development class. Inspectors have subsequently recognised the tension and applied the later, higher authority.

So Marshall remains highly useful for the internal structure of Part 6 and the A.1(i) livestock point, but practitioners should use New World Payphones for the current approach to the authority’s role in checking whether a proposal falls within the relevant permitted development class.

Heritage was capable of mattering to siting

The claimant also argued that the council had failed to consider the effect of the barn on the setting of a nearby Grade II listed building. That ground did not ultimately succeed because the 28 day period had already expired.

However, the judgment accepted in principle that the impact on neighbouring properties, including the setting of a listed building, could be relevant when the authority is considering whether prior approval is required for the siting, design and external appearance of an agricultural building.

What Marshall means in practice

• Check the A.1 exclusions before relying on the A.2 prior approval procedure
• Do not read the temporary livestock exceptions in D.1(3) into the separate A.1(i) restriction
• A missed prior approval deadline does not enlarge the statutory class of permitted development
• Keep the proposed use of the agricultural building consistent throughout the application and supporting evidence
• Use the later Court of Appeal decision in New World Payphones when considering the LPA’s role in checking the definitional scope of permitted development

Why this matters to the Alkham appeal

The distinction became relevant again in the 2026 Alkham Part 6 agricultural building appeal. The Inspector accepted the use of D.1(3) in relation to lambing and newly born animals, but the decision did not appear to address the separate A.1(i) restriction identified in Marshall.

Planning Geek therefore treats Marshall as an important warning against assuming that D.1(3) can make a new livestock building within 400 metres permitted development.

Read the full Marshall judgment

The approved Planning Court judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.

Related Planning Geek guidance

See our guide to Part 6 Class A agricultural development, the Part 6 agricultural and forestry overview and Paragraph D definitions.

Marshall Case Law Page Updated: 23rd September 2026