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

For permitted development involving demolition, an exclusion applies only if all three statutory limbs are satisfied: the building was rendered unsafe or unusable, that resulted from the action or inaction of a person with an interest in the land, and repair or temporary support could practicably secure safety or health. A planning officer need not reproduce the statutory wording exactly. The report must, read fairly and realistically as a whole, show that the correct questions were understood and answered without a material legal error. An inaccurate paraphrase may be immaterial if the operative reasoning demonstrates that the officer assessed the statutory condition itself, rather than applying the paraphrase as a legal threshold.

Save Britain’s Heritage sought judicial review of Herefordshire Council’s decision that the proposed demolition of the Old School, Garway, was permitted development under Class B, Part 11 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. The Council’s planning officer concluded that the building was not unsafe or uninhabitable and granted prior approval on 22 March 2022.

Lang J dismissed the claim, holding that the officer had made an evaluative judgment that the first limb of paragraph B.1(a) was not met. She accepted that the reference to intentional rendering was erroneous but held that the error was immaterial. The appeal concerned whether the officer had applied the correct statutory test and whether the reference to stabilising works imposed an unlawful threshold.

1. Appeal dismissed. The proposed demolition therefore remained outside 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 and benefited from permitted development rights.
2. Paragraph B.1(a) contains three cumulative limbs: the building must have been rendered unsafe or uninhabitable; this must have resulted 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. “Uninhabitable” means unusable. If any limb is absent, the exclusion does not apply.
3. The planning officer’s references to a building being intentionally rendered unsafe or uninhabitable and to stabilising works were legally inaccurate paraphrases. The former wrongly added intention, and the latter did not accurately state the third limb. They were not material errors because the operative reasoning showed that the officer assessed the building itself, from his observations, and concluded that it was in good structural condition and not neglected to the relevant degree. The officer therefore answered the decisive first-limb question lawfully.
4. The report had to be read fairly, as a whole, with realism and good sense. Exact use of the statutory language was preferable but not essential. It was sufficient that the report left no genuine doubt that the officer understood the legislation, asked the necessary questions and avoided an error fatal to the decision.
5. Sir Keith Lindblom added that statutory interpretation in the planning sphere is subject to the same conventional principles and rigour as other legislation. Earlier reports could provide context, but they did not alter the conclusion reached from the March 2022 report.

• Court of Appeal (Civil Division): appeal dismissed for the reasons given by Lewis LJ, with Laing LJ and Sir Keith Lindblom agreeing.
• High Court of Justice, King’s Bench Division, Planning Court: Lang J dismissed the judicial review claim, holding that the Council had lawfully concluded that the first limb of paragraph B.1(a) was not met: 2022 EWHC 2984 (Admin).