The King on the application of Save Britain's Heritage v Herefordshire County Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 25 November 2022 |
| Neutral Citation | [2022] EWHC 2984 (Admin) |
| Docket Number | Case No: CO/1381/2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 2984 (Admin)
Mrs Justice Lang DBE
Case No: CO/1381/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Harwood OBE KC (instructed by Harrison Grant Ring) for the Claimant
Jack Parker (instructed by Legal Services) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 9 November 2022
Approved Judgment
This judgment was handed down remotely at 10 am on 25 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Claimant applies for judicial review of the decision of the Defendant (“the Council”) that the proposed demolition of the Old School, Garway, Herefordshire HR2 8RQ (“the School”) was within permitted development rights. The decision was made in March 2022, though the precise date of the decision is in dispute.
The Claimant is a charity which campaigns for the conservation of historic buildings. The Council is the local planning authority and the Interested Party (“Mr Davies”) is the owner of the School, and the applicant for prior approval of demolition of the School.
On 17 June 2022, I adjourned the application for permission to be listed as a ‘rolled-up’ hearing, on the basis that, if permission was granted, the Court would proceed immediately to determine the substantive claim.
Grounds of challenge
The Claimant submitted that the Council's decisions, and the proposed demolition, were unlawful on the following grounds:
i) The Council erred in its interpretation and application of 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 GPDO 2015”), hereinafter referred to as “Class B”, and so its determination as to whether the proposed demolition was excluded from the permitted development rights for demolition was unlawful.
ii) The Council failed to provide an adequate and intelligible record of the decision and its reasons, as required by the Openness of Local Government Regulations 2014, instead producing contradictory decisions with inconsistent reasons and dates.
Planning history
The School, which was built in 1877, served as the village primary school until 1980. In the delegated decision report dated 7 March 2022, the planning officer (Mr Withers) described the School as follows:
“The Old School, Garway is an attractive Victorian stone built, former school house located in a visually prominent roadside location at the western end of the village and in close proximity to the school and community hall.
It is unlisted but is certainly of sufficient architectural quality to be considered a non-designated heritage asset and it occupies a prominent roadside location at the western end of the village close to the Primary School and Community Centre.”
The School was purchased by Mr Davies on 25 September 1981. A 2013 Design and Access Statement submitted on his behalf stated:
“The site was then purchased by the applicant in 1980 when it became agricultural and commercial workshops with a large steel framed building being erected immediately behind the school for the maintenance and repair of vehicles. The yard area was used for the parking and refuelling of vehicles, whilst the school rooms were used for the storage of spare parts. This use ceased in 2002. In recent years the buildings became vandalised and the site became quite overgrown.”
In 2013, planning permission was granted for the conversion of the school rooms to two dwellings, but that permission was allowed to expire. Part of the overall site, but outside the 2013 application boundary, was the school house, which was part of the School building. That was in use as a single dwelling with the intention to retain it as such. However it appears that the school house was vacated in about 1997. Since then it has remained vacant and boarded up.
The 2021 prior approval application
On 19 May 2021, Mr Davies submitted a prior approval application for the proposed demolition of the building. The Claimant objected to the application on 16 June 2021.
The Council's delegated decision report was produced by the officer on 16 June 2021. He conducted a site visit in June 2021. He advised that the proposed demolition was permitted development. The report stated that the building was “in good structural condition and gives no impression of being neglected” and so was not “intentionally rendered unsafe or uninhabitable by inaction”. The officer went on to advise that prior approval was required, and that the information provided so far by Mr Davies was insufficient. On 16 June 2021 the Council formally determined that prior approval was required.
The Council submitted a detailed request for the listing of the building. This request was turned down by the Secretary of State, on advice from Historic England, on 15 July 2021. Historic England's report found that the School was of “strong local interest”.
On 3 December 2021, the officer produced a further delegated decision report. He considered first whether the proposal was within the permitted development rights, stating:
“In the light of a number of well-made objections, I have revisited my initial assessment and sought further legal advice. This has corroborated position sic already taken that with all due respect to many of the objections raised, it is not the case that the building has been rendered unsafe and in my view whilst it may not be habitable in its current condition, it could be made so with limited works that would amount to what might be rationally described as repairs and maintenance outside the scope of planning control As such, I do not consider that the proposal falls outside the scope of the definition.”
The officer further advised that the proposal still contained inadequate details of the method of demolition and the proposed restoration of the site and so should be refused.
On 3 December 2021, the Council decided to refuse prior approval, for the following reason:
“In the continued absence of any of the information required in its previous determination that Prior Approval was Required, and in view of the visual prominence of the site, its close relationship with sensitive receptors; the potential implications/risk associated with the contamination of land within the application site and the potential impact on protected species the Prior Approval is Refused.”
The 2022 prior approval application
On 9 February 2022 Mr Davies submitted a further prior approval application for the demolition of the School. On the issue of the permitted development rights, his planning consultants, Tompkins Thomas Planning (“TTP”) stated:
“TTP Comment: The building is not made unsafe or uninhabitable by the action or inaction of a person having an interest in the land. The applicant previously achieved planning permission at the site for the conversion of the buildings to dwellings but has been unable to sell the site at a price reflective of market value. During this time, he has maintained the building as best he can and ensured that it remains as safe as can be whilst appreciating that the building has no current use. Through the action of others some vandalism has taken place.
Although in our view the building is safe, even if a contrary view were taken, it could certainly be made safe through the carrying out of repair works and/or temporary supports.
This is agreed by the Council in their officer's reports.”
The Claimant objected to the application on 18 March 2022. Its solicitors, Harrison Grant, also sent a letter to the officer on 18 March 2022 explaining why, in their view, the proposal did not have permitted development rights. The letter said of paragraph B.1(a) of Class B:
“This has three elements:
The building being unsafe or uninhabitable;
This state arising from the action or inaction of any person having an interest in the land; and
It being practicable to remedy the situation on a permanent or temporary basis.”
Harrison Grant continued:
“The uninhabitable nature of the building arises from Mr Davies' failure to maintain it.
Consequently, the building has been ‘rendered unsafe or otherwise uninhabitable by the action or inaction of any person having an interest in the land’.
As the Council's 2021 assessment identifies, the building could be rendered habitable by repairs and maintenance.
Consequently, the three elements of the exclusion from demolition permitted development rights in paragraph B.1(a) apply. The proposal does not have permitted development rights. The Council's 2021 report failed to address the second element – the owner's responsibility for the state. That it could be repaired means that the third element of the exclusion is satisfied. It is not the case that the ability to carry out repairs and maintenance without a further planning permission means that the permitted development rights apply. On the contrary, that prohibits demolition.”
The officer produced a delegated decision report dated 7 March 2022. However, it was not on the Council's website when the Harrison Grant letter was sent on 18 March 2022. The properties on the pdf file state it was created at 12:06 on 28 March 2022. The Council's website records a consultation end date of 7 March, a target date of 8 March and a decision date of 22 March.
The officer did not make a further site visit on this occasion. His report considered the permitted development rights as follows:
“Does the building qualify?
The first consideration relates to whether there is any evidence to suggest that the building has been...
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The King (on the application of Save Britain's Heritage) v Herefordshire Council
...(CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION PLANNING COURT THE HONOURABLE MRS JUSTICE LANG DBE 2022 EWHC 2984 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Richard Harwood KC OBE (instructed by Harrison Grant Ring) for the Jack Parker (instruct......