The King (on the application of Save Britain's Heritage) v Herefordshire Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lady Justice Elisabeth Laing |
| Judgment Date | 23 June 2023 |
| Neutral Citation | [2023] EWCA Civ 723 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-002401 |
[2023] EWCA Civ 723
THE SENIOR PRESIDENT OF TRIBUNALS
Lord Justice Lewis
and
Lady Justice Elisabeth Laing
Case No: CA-2022-002401
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
THE HONOURABLE MRS JUSTICE LANG DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Harwood KC OBE (instructed by Harrison Grant Ring) for the Appellant
Jack Parker (instructed by Herefordshire Legal Services) for the Respondent
The Interested Party did not appear and was not represented.
Hearing date: 25 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 23 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This is an appeal against a decision of Lang J. dismissing a claim for judicial review of a decision of the respondent, Herefordshire Council, that the proposed demolition of the Old School in Garway in Herefordshire (“the School”) was permitted development.
THE LEGAL FRAMEWORK
Planning permission is required for the demolition of a building: see section 55 of the Town and Country Planning Act 1990. Article 3 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the Order”) provides that planning permission is granted for certain classes of development. Class B, Part 11 of Schedule 2 to the Order provides for the following class of permitted development:
“ B. Permitted development”
Any building operations consisting of the demolition of a building.
There are exclusions to Class B. The material exclusion for present purposes is paragraph B.1(a) of Class B which provides
“B.1. Development not permitted.
“Development is not permitted by Class B if –”
the building has been rendered unsafe or otherwise uninhabitable by the action or inaction of any person having an interest in the land on which the building stands and it is practicable to secure safety or health by works of repair or works for affording temporary support.”
There are essentially three elements, or limbs, to the exclusion, namely (1) the building must have been rendered unsafe or be otherwise uninhabitable (2) by the action or inaction of a person having an interest in the land and (3) it is practicable to secure safety or health by works of repair or works for affording temporary support. “Unhabitable” in this context means unusable. All three elements must be present for the building to fall within the scope of the exclusion in paragraph B.1(a) to permitted development rights. Unless all three elements are present, the demolition of the building is permitted development within the meaning of Class B.
THE FACTUAL BACKGROUND
The School
The School was built in 1877 and served as the village primary school until 1980. In the delegated decision report dated 7 March 2022, the planning officer 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, the interested party, in 1980. It was used as agricultural and commercial workshops. This use ceased in 2002. The School has remained vacant since that date and has suffered vandalism. In 2013, planning permission was granted for the conversion of the school rooms to two dwellings but that permission expired without being implemented.
The 2021 Application
In May 2021, Mr Davies applied for prior approval for the proposed demolition of the School. The planning officer undertook a site visit and prepared a report. The report considered whether the School did in fact qualify as permitted development under Class B or whether the exclusion in paragraph B.1(a) applied. The material part of the report dated 16 June 2021 said this:
“Does the building qualify?
“The first consideration relates to whether there is any evidence to suggest that the building has been intentionally rendered unsafe or uninhabitable by inaction. I note that a number of objections refer to this but in my view, this provision would only be relevant were the building in a more deleterious state that might be prevented by works to stabilise it. From my observations that building is in good structural condition and gives no impression of being neglected. It continues to make a positive contribution to the site and wider locality. As such, I do not consider that the proposal falls outside the scope of this definition. In [other] respects, the proposal does not qualify as relevant demolition and neither is the building a specified building.”
As such, subject to being satisfied with the method of demolition and the restoration of the site, I consider that the works to demolish can be reasonably considered to be permitted development under the provisions of Schedule 2, Part 11, Class B of the Town and Country Planning (General Permitted Development) (England) Order 2105 as amended.”
An application for the listing of the School was refused by the Secretary of State on 15 July 2021. The planning officer reconsidered the matter. He did not make a further site visit. The material parts of his report 3 December 2021 are in the following terms:
“ Does the building qualify?
In the light of a number of well-made objections, I have revisited my initial assessment and sought further legal advice. This has corroborated [the] position 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 Application
On 9 February 2022, Mr Davies submitted a further application for prior approval for the proposed demolition of the School. The planning officer did not carry out a site visit as the site had been visited previously. The planning officer prepared a report dated 7 March 2022. The material parts of the report are in the following terms:
“Appraisal
…. [The] starting point for this proposal is that that the legislation permits the demolition of the building, unless it falls outside the legal scope of Part 11 of the Town and Country Planning (General Permitted Development) (England) Order 2015 as amended. Class B of Part 12 [that should read 11] expresses quite clearly that the demolition of a qualifying building is permitted development subject to the submission of an application for the prior approval of the proposed works and the legislation also establishes that the only matters for consideration are the method of demolition and the restoration of the site.
Does the building qualify?
The first consideration relates to whether there is any evidence to suggest that the building has been intentionally rendered unsafe or uninhabitable by inaction. This provision would only be relevant were the building in a more deleterious state that might be prevented by works to stabilise it. From my observations the building is in good structural condition and gives no impression of being neglected to the level inferred by the legislation. It continues to make a generally positive contribution to the site and wider locality and it is explained in the supporting submission that the site owner has simply sought to secure the building to a limited extent but it has been subjected to some vandalism. As such, and whilst acknowledging the sheer volume and strong views of the local community, I do not consider that the proposal falls outside the scope of this definition.
As such, subject to being satisfied with the method of demolition and the restoration of the site, I consider that the works to demolish can be reasonably considered to be permitted development under the provisions of Schedule 2, Part 11, Class B of the (General Permitted Development) (England) Order 2105 as amended”
The planning officer was satisfied that the proposed method of demolition and restoration of the site was acceptable. He recommended that prior approval be granted. On 22 March 2022, prior approval was granted.
THE CLAIM FOR JUDICIAL REVIEW AND THE JUDGMENT OF LANG J.
The appellant, Save Britain's Heritage, applied for judicial review of the decision that demolition was not excluded from the benefit of permitted development rights by paragraph B.1(a) of the Order. For present purposes, it is only necessary to deal with the first ground...
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