Roe Buck Holdings Limited v Secretary of State for Housing, Communities and Local Government & Anor

In a statutory planning appeal, interpreting a planning policy is a question of law, while applying it is a matter of planning judgment reviewable only for irrationality. A countryside policy using the word essential may arguably address the location of development rather than only an essential need for the building. A fall-back based on a replacement building requiring permission or prior approval is not an unimpeachable existing right; its likelihood and likely implementation may require assessment. An embedded-carbon argument was considered and given neutral weight. Permission to proceed was granted on the first two grounds and refused on the third.

The appellant owned a farm containing an agricultural building. It obtained a second Class Q prior approval for conversion of the building into five dwellings, but the works departed from the approved details. The Council issued an enforcement notice requiring demolition and clearance.

An Inspector dismissed the relevant enforcement-appeal grounds, while extending the compliance period under ground (g). On the statutory appeal under section 289 of the Town & Country Planning Act 1990, the appellant challenged the Inspector’s treatment of policy COM2(b), an alleged fall-back based on permitted development rights, and embedded carbon. The issue at this stage was whether the three grounds were arguable.

Permission to proceed was granted on Grounds 1 and 2 and refused on Ground 3. The court stressed that it was deciding only arguability, not the ultimate merits.

1. Policy interpretation. Interpreting a planning policy is a question of law, while applying it is a matter of planning judgment subject to intervention only for irrationality, consistently with Tesco Stores Limited v Dundee City Council [2012] UKSC 13. The fact that the parties and Inspector had approached policy COM2(b) in the same way did not establish that interpretation as lawful. The Inspector had made the concept of need pivotal, although the word essential could refer either to the purpose of the building or to its location. The latter construction was not fanciful, so Ground 1 was arguable.
2. Fall-back position. A fall-back argument raised in relation to a ground (f) appeal could read across to the ground (a) appeal and therefore required consideration in that context: Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566. The proposed replacement building was not supported by an existing, unimpeachable legal right. Permitted development rights existed in principle but remained subject to prior approval, or a new permission. The court distinguished R (Zurich) v Lincolnshire Council [2012] EWHC 3708 and relied on the reasoning in Schneck v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 3335 (Admin). It was arguable that the Inspector should have considered the probability that the necessary approval would be available and that the replacement building would be implemented.
3. Embedded carbon. An arguable fall-back did not automatically make Ground 3 arguable. The Inspector had expressly considered the embedded carbon and assigned it neutral weight. His reasoning that greater weight could reward unlawful conduct and undermine enforcement was logical and not arguably irrational on the facts. Ground 3 was therefore refused.

The court directed that its comments on Grounds 1 and 2 be read in the context of the lower permission threshold. The parties were invited to agree an order and case-management directions for the substantive hearing.

Inspector’s decision: Following an enforcement-notice appeal heard on 10 March 2026, the Secretary of State’s Inspector dismissed the appeals in a decision letter dated 2 April 2026, extending the ground (g) compliance period from three months to 12 months.

High Court (Planning Court): At the permission hearing of the statutory appeal, the court granted permission on Grounds 1 and 2 and refused it on Ground 3. No substantive determination was made.