Save Britain's Heritage, R (on the application of) v Herefordshire County Council

Paragraph B.1(a) of Class B, Part 11 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 contains three cumulative conditions. The building must have been rendered unsafe or uninhabitable, that condition must result from the action or inaction of a person with an interest in the land, and it must be practicable to secure safety or health by repair or temporary support. Each condition involves an evaluative planning judgment. Where the authority concludes that the first condition is not met, errors concerning the remaining conditions are immaterial. A delegated officer’s report may provide adequate reasons for the authority’s formal decision. Later correspondence containing inconsistent legal reasoning does not become part of the decision merely because it was issued by the authority’s solicitor.

The claimant sought judicial review of Herefordshire County Council’s decision that the proposed demolition of the Old School, Garway, fell within permitted development rights under Class B, Part 11 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. The claimant challenged the Council’s interpretation of paragraph B.1(a) and alleged that the Council had failed to provide an adequate and intelligible record of its decision and reasons.

The Council had granted prior approval by a formal decision notice dated 22 March 2022. The claimant also relied on inconsistencies between the delegated report, the decision notice and a solicitor’s later letter. The central issues were whether the Council had lawfully applied paragraph B.1(a), whether the claim was academic because the 28-day period had expired, and whether the statutory duty to give reasons had been discharged.

1. The claim was dismissed. Permission was granted on Ground 1 but refused on Ground 2.

2. Paragraph B.1(a) contains three cumulative limbs: the building must have been rendered unsafe or uninhabitable; that state must have resulted from the action or inaction of a person having an interest in the land; and it must be practicable to secure safety or health by repair or temporary support. Each limb requires an evaluative judgment based on the available evidence.

3. The officer’s report was properly understood as concluding that the School was neither unsafe nor uninhabitable. References to the building being in a more deleterious state, to works to stabilise it, to its good structural condition and to the level of neglect contemplated by the legislation were permissible paraphrases of the statutory test. The officer’s use of the word intentional was erroneous because intention is not part of paragraph B.1(a), but the error was immaterial because the first limb was not satisfied. The second and third limbs therefore did not require determination.

4. The formal decision notice was the Council’s decision. The earlier delegated report was a recommendation, while the solicitor’s letter post-dated the decision and was not authorised as a delegated decision. Its acknowledged errors, including the mistaken assertion that prior approval was unnecessary, did not influence the decision.

5. The claim was not academic. Expiry of the 28-day period did not make the Council’s view that the demolition was permitted development legally conclusive. A quashing order could lead to reconsideration and possible enforcement action. The court could also disregard the section 31 restriction because of the exceptional public interest in lawful planning control.

6. The written delegated report adequately explained the grant of prior approval and discharged the duty under regulation 7 of the Openness of Local Government Regulations 2014. The Council was not required to explain document-production delays, administrative chronology or contradictions in correspondence that did not constitute the decision.

First-instance judicial review claim. No appellate history was stated in the judgment.