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

The Court of Appeal dismissed the challenge to Herefordshire Council's grant of prior approval for demolition, concluding that the planning officer correctly applied the exclusion in paragraph B.1(a) of Class B, Part 11 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. The officer made an evaluative judgment, based on his observations, that the Old School was not "unsafe or uninhabitable" within the meaning of the exclusion and so the demolition remained permitted development. Although the officer used the word "intentionally" and referred inexactly to "works to stabilise" in summarising the statutory test, those errors were not material because the officer's decision rested on his site observations and an express finding that the building was not in such a bad state as to fall within the exclusion.

This appeal arises from an application for prior approval for the demolition of the Old School, Garway. The interested party purchased the building in 1980; it remained vacant and vandalised after 2002. Demolition requires planning permission under section 55 of the Town and Country Planning Act 1990 unless it is permitted development under the GPDO 2015. Class B, Part 11, Schedule 2 of the GPDO permits demolition except where paragraph B.1(a) applies (the building has been rendered "unsafe or otherwise uninhabitable" by the action or inaction of a person with an interest in the land and it is practicable to secure safety or health by repair or temporary support).

Nature of the claim: judicial review of the council's decision that the proposed demolition was permitted development; the claimant sought to quash the grant of prior approval on the basis that the exclusion in paragraph B.1(a) applied.

Procedural history: The planning officer considered applications in June 2021, December 2021 and March 2022. Prior approval was granted on 22 March 2022. Lang J dismissed the judicial review in the Planning Court (2022 EWHC 2984 (Admin)). Permission to appeal to the Court of Appeal was granted on two grounds challenging the officer's interpretation and application of paragraph B.1(a).

Issues framed by the Court:

• Whether the planning officer had applied the correct legal test in paragraph B.1(a), and in particular whether he impermissibly required intention to render the building unsafe or conflated the limbs of the exclusion;
• Whether the officer wrongly treated the need for "stabilising" works as a threshold for the exclusion;
• Whether the March 2022 report contained a lawful evaluative judgment that the building was not "unsafe or uninhabitable".

Court's reasoning: The March 2022 report referred to the correct statutory provision and framed the question as whether the building "qualified" under Class B. The court treated the first two sentences of the material paragraph as the officer's attempt to summarise the statutory test and the third sentence as his site-based evaluative judgment. The officer erred in using the word "intentionally" and in paraphrasing the third limb as "works to stabilise", but those errors were not material because the officer explicitly stated, on the basis of his observations, that the building was in good structural condition and did not appear neglected to the degree required by the exclusion. Earlier reports did not undermine that conclusion. Reading the report fairly and in context, the officer applied his mind to the correct question, made an evaluative judgment on the condition of the building, and lawfully concluded that the exclusion did not apply; the appeal was therefore dismissed.

Appeal dismissed. The Court concluded that, despite imperfections in language (notably the use of "intentionally" and a loose reference to "stabilising" works), the planning officer had applied the correct statutory test in paragraph B.1(a) of Class B, Part 11 of Schedule 2 to the GPDO 2015, made a lawful evaluative judgment based on site observations that the building was not "unsafe or uninhabitable", and therefore the proposed demolition remained permitted development.

Appeal from the High Court (King's Bench Division, Planning Court, Lang J) decision dismissing judicial review: 2022 EWHC 2984 (Admin). This Court delivered judgment allowing the appeal to be dismissed: [2023] EWCA Civ 723.