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

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.

The Claimant submitted that the Council’s decisions, and the proposed demolition, were unlawful on the following grounds:

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 School was purchased by Mr Davies on 25 September 1981. A 2013 Design and Access Statement submitted on his behalf stated:

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.

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:

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:

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:

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:

Harrison Grant continued:

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:

The officer was satisfied with the proposed method of demolition and restoration of the site, set out in the documentation submitted by TTP. Therefore he recommended that prior approval be granted.

The officer’s recommendation was approved by Mr Kevin Bishop, Lead Development Manager, on 8 March 2022 when he completed and signed the form at the back of the delegated decision report. It read: “DECISION: PERMIT ☒”. Mr Bishop then signed the formal notice of the Council’s decision headed “Demolition of Buildings – Prior Approval” on 22 March 2022.

The Council’s solicitor responded to Harrison Grant’s letter on 24 March 2022. The letter did not refer to the delegated decision report or the formal notice of the Council’s decision. The letter set out the text of both paragraph B.1(a) and paragraph B.2(a) of Class B, and then stated as follows:

On 1 April 2022, Harrison Grant sent a pre-action protocol letter, accompanied by a draft Statement of Facts and Grounds, to the Council. The Council replied on 12 April 2022. As a preliminary point, the Council submitted that the proposed claim was academic since the Council had issued the decision notice after the 28 day deadline in paragraph B.2(b)(vii)(cc) of Class B had expired, and so it was open to Mr Davies to commence the development even if the Council’s decision was quashed. The Council then set out its defence to the proposed grounds of challenge.

Planning permission is required for the demolition of a building: Town and Country Planning Act 1990, sections 55(1) and 57(1). The Town and Country Planning (Demolition – Description of Buildings) Direction 2021 does not exclude buildings of the size of the School from the definition of development.

Planning permission is granted by permitted development rights under Schedule 2, Part 11, Class B of the GPDO 2015.

The permitted development in Class B is:

Paragraph B.1. sets out limitations and exclusions where development is not permitted:

The permitted development right is subject to conditions, as set out in paragraph B.2 Conditions of Class B (see also article 3(2) of the GPDO 2015). Subject to exceptions, a proposal to demolish a building under Class B rights is subject to “a determination as to whether the prior approval of the authority will be required as to the method of demolition and any proposed restoration of the site” (condition B.2(b)).

By condition B.2(b)(vii):

The 28 day period for determining whether prior approval is required can be extended by the agreement of the applicant and the authority in writing: GPDO 2015, article 7(c); Gluck v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 1756, [2021] PTSR 1004, at [28]-[32] per Newey LJ.

The relevant provisions in section 31 of the Senior Courts Act 1981 read as follows:

The Claimant contended that the Council produced three decisions that the proposed demolition would be within permitted development rights, namely, in a delegated decision report dated 7 March 2022; in a prior approval decision notice, dated 22 March 2022; and in a letter from the Council’s solicitor dated 24 March 2022. The Council submitted that the decision was only contained in the prior approval decision notice dated 22 March 2022.

In my judgment, the officer who produced the delegated decision report dated 7 March 2022, was making a recommendation, not a decision. He was not authorised to make the delegated decision. The delegated authority to make the decision was exercised by a more senior officer – Mr Kevin Bishop, Lead Development Manager. On 8 March 2022, Mr Bishop decided that the Council should grant approval. He gave effect to that decision by signing the Council’s formal decision notice headed “Demolition of Buildings – Prior Approval” on 22 March 2022. Therefore, 22 March 2022 was the date upon which the Council made the decision.

In my view, this analysis is in accordance with standard practice in planning decision-making. The formal decision notice is, in law, the decision of the authority. It may well be, as here, that the officer with delegated authority to make the decision on behalf of the authority, has decided at an earlier date what action will be taken. The formal decision notice will then have to be generated, and in due course signed by the officer at a later date.

The Council’s solicitor’s letter, dated 24 March 2022, was a reply to a letter from the Claimant’s solicitors. It did not purport to be a decision of the Council. The solicitor was not authorised to make this delegated decision. Indeed, the delegated decision had already been made by the date on which the letter was sent.

Paragraph B.2(b)(vii) of Class B provides:

Both parties agreed that, as the application was received on 8 February 2022 and was not determined until more than 28 days later, on 22 March 2022, the prohibition on the commencement of development afforded by paragraph B.2(b)(vii) had expired by virtue of sub-paragraph B.2(b)(vii)(cc).

The Council submitted that therefore the claim was academic, and section 31(2A) of the Senior Courts Act 1981 applied, since the quashing of the Council’s decision dated 22 March 2022 would not prevent Mr Davies from carrying out the demolition. The Council submitted that permission to apply for judicial review should be refused for these reasons.

In response, the Claimant submitted that the Council’s view that permitted development rights applied in this case was not legally conclusive, and if it was flawed, it ought to be quashed.

The Claimant relied on Westminster City Council v Secretary of State for Housing, Communities and Local Government & New World Payphones Ltd [2019] EWCA Civ 2250, where the operator of an electronic communications network applied to Westminster Council for a determination as to whether prior approval for the replacement of two telephone boxes with a single new kiosk was required under paragraph A.3(4), Part 16, Schedule 2 GPDO 2015. It also applied for consent for the display of an advertisement panel. Westminster Council refused both applications. In a decision notice dated 6 September 2017, it determined that (1) prior approval was required; and (2) that approval was refused because the kiosk would be harmful to visual amenity. On the operator’s appeal to the Secretary of State, Westminster Council was granted permission to rely on an additional ground of refusal, namely, that the application for prior approval did not meet the definitional requirements in Part 16 as it was not for the purposes of the operator’s communication network. The inspector allowed the operator’s appeal.

On an application for statutory review by the local planning authority under section 288 of the Town and Country Planning Act 1990, the High Court quashed the inspector’s decision on the basis that the new kiosk was not wholly “for the purpose of the operator’s electronic communication network”, being partly also for the purpose of advertising. Therefore it fell outside the scope of paragraph A of Part 16.

The Court of Appeal upheld the judgment of the High Court, dismissed the operator’s appeal, and quashed the grant of prior approval because the proposed development fell outside the scope of the GPDO 2015. Hickinbottom LJ said, at [48] and [49]:

In Keenan v Woking Borough Council [2017] EWCA Civ 438, [2018] PTSR 697, the Court of Appeal held that a failure by the local planning authority to make a determination on a prior approval application within the 28 day period enables the developer to proceed with the proposed development, under the relevant provision, but he did not thereby gain planning permission by default and so he did not have planning permission for development that was not “permitted development”: per Lindblom LJ at [36] and [41].

In Westminster the grant of prior approval was quashed on the basis that the proposed development fell outside the scope of the GPDO 2015. In principle, a quashing order could also be made in this case, if the Court found that the Council had misdirected itself in law, even though, unlike this case, Westminster was a case in which no exercise of planning judgment was required to make the determination.

If the Court were to find in these proceedings that the Council had erred in deciding that the proposed demolition was permitted development and proceeded to quash the grant of prior approval, the Council could then be ordered to re-consider its decision, in accordance with the judgment of the Court. If it reversed its previous view, and decided that the proposed demolition was not permitted development, it could (if necessary), take action against Mr Davies to prevent the demolition by enforcement proceedings and/or an application for an injunction under section 187B of the Town and Country Planning Act 1990.

Therefore, in my view, this claim is not academic. Furthermore, applying section 31(2B) or (3E) of the Senior Courts Act 1981, this could be a case in which there was an exceptional public interest, namely, ensuring the lawful exercise of planning controls, which meant that the requirements of section 31 of the Senior Courts Act 1981 should be disregarded.

Ground 1

The Claimant submitted that the Council erred in its interpretation and application of paragraph B.1(a) of Class B. The Claimant identified a number of findings in the delegated decision report dated 3 December 2021, which it submitted fed into the 2022 decision, as the planning officer was the same person, and he did not conduct a second site visit in 2022.

The Claimant submitted that the officer found that the School was uninhabitable (“whilst it may not be habitable in its current condition” at paragraph 11 above), thus meeting the first limb of the test in paragraph B.1(a), but he failed to address Mr Davies’ responsibility for the state of the School. Given Mr Davies’ lengthy ownership and then leaving the School vacant, its uninhabitable state appeared to be down to his inaction, and this should have been considered. The officer also erred by treating the ability to carry our repairs and maintenance as a factor in favour of the existence of permitted development rights, whereas on the contrary, it was the third limb of the test in paragraph B.1(a).

The Claimant submitted that the representations made by TTP (paragraph 14 above) served to support the view that permitted development rights were lost. They relied upon the officer’s report of 3 December 2021, including the reference to the School being uninhabitable, without correction. The statement that he tried to keep it “as safe as can be” conceded that safety problems arose from the lack of use. Vandalism was mentioned but not put forward as a reason why the building was uninhabitable.

In regard to the delegated decision report of 7 March 2022, the Claimant alleged that the officer misdirected himself on the statutory test and failed to apply it properly, in the following respects:

The Claimant also submitted that the Council solicitor’s letter of 24 March 2022 letter (paragraph 21 above) contained a series of legal errors, namely:

The Council submitted that the only relevant report was the delegated decision report of 7 March 2022, which set out the reasons for the decision to grant prior approval, on 22 March 2022. The earlier reports were immaterial, as was the solicitor’s letter of 24 March 2022.

In the delegated decision report, the officer plainly considered whether paragraph B.1(a) of Class B applied. In the exercise of his judgment, he found that the building was not unsafe or uninhabitable. He noted that “the building is in good structural condition and gives no impression of being neglected to the level inferred by the legislation.” That analysis could only sensibly be understood as an exercise by the officer of a judgment as to whether the building was unsafe or uninhabitable and a finding that it was neither unsafe, nor uninhabitable.

Having found that the building was neither unsafe nor uninhabitable, it was thereafter irrelevant whether the state of the building was caused by the action or inaction of the owner or whether it was practicable to secure safety or health by works of repair or works for affording temporary support.

Furthermore, having found that the building was neither unsafe nor uninhabitable, the Council was unarguably correct to find that the proposed work was not excluded from the permitted development right.

The Council submitted that the Claimant’s criticisms of the report were unduly semantic and legalistic. The officer paraphrased the statutory test in paragraph B.1(a) of Class B, perhaps to make the report more readable and accessible. But the fact that he departed from the language of the statutory test did not mean that he misdirected himself as to its meaning, or failed to apply it.

In response to the specific criticisms, the Council submitted:

In regard to the solicitor’s letter of 24 March 2022, the Council accepted that it contained a number of errors, namely, those identified by the Claimant at paragraph 49(i), (iv) and (vii) above. However, the Council submitted that the solicitor’s letter did not contain the reasons for the Council’s decision, and in fact post-dated it. Therefore it was immaterial.

Development is not permitted by Class B if paragraph B.1(a) applies. The statutory test in paragraph B.1(a) of Class B contains three limbs, each of which must be satisfied:

The reasons for the Council’s decision were set out in the officer’s delegated decision report dated 7 March 2022, not the earlier delegated decision reports in 2021. However, I allowed the Claimant to refer to the earlier reports as relevant evidence, as they were recently produced by the same officer in respect of the same site.

Each limb of the statutory test required the Council to make an evaluative judgment, based upon the available evidence, namely, the application, the objections and the site visit. I agree with the Council’s submission that the officer clearly concluded, in the exercise of his planning judgment, that the School was not unsafe or uninhabitable, and therefore the first limb of the statutory test was not met. It is noteworthy that the officer reached this conclusion on each of the three occasions when he assessed the evidence.

I do not accept the Claimant’s submission that in the report of 3 December 2021, the officer made a finding that the School was uninhabitable. On my reading of the report, he was raising this as a hypothesis or possibility, in response to the objections that had been made. In my view, if the officer had found that the School was uninhabitable he would have made an unequivocal finding to that effect, in all three reports, as he was clearly well aware that the first limb of the statutory test was that the building had been “rendered unsafe or uninhabitable”.

In response to the Claimant’s criticisms of the officer’s approach to the first limb of the statutory test, in sub-paragraphs (ii) to (vi) of paragraph 48 above, I accept the following submissions made by the Council, based on a fair reading of the report:

In my view, the officer erred in including the word “intentional” when he was paraphrasing the statutory test, since intention is not part of the test in paragraph B.1(a) of Class B. However, as the officer found that the School was not unsafe or uninhabitable and so the first limb of the test was not met, the Claimant cannot succeed by reference to failings in respect of his approach to the second or third limbs. As the Council submitted, they are immaterial.

In regard to the solicitor’s letter of 24 March 2022, the Council has accepted that it contained a number of errors, namely, those identified by the Claimant at paragraph 49 sub-paragraphs (i), (iv) and (vii) above. I do not consider that the Claimant’s criticisms of the solicitor’s choice of language in sub-paragraphs (ii) and (iii) amounted to material errors of law; she was entitled to illustrate her understanding of the statutory test in that way. As to sub-paragraph (v), the wrong test was applied insofar as set out in sub-paragraphs (i) and (iv), but not otherwise. As I have already indicated, I do not accept that there was an earlier finding that the School was uninhabitable, and so sub-paragraph (vi) is without foundation.

The solicitor’s letter of 24 March 2022 plainly did not contain the reasons for the Council’s decision of 22 March 2022, as it made no reference to it, and indeed post-dated it. It seems that the solicitor had not even seen the decision or the delegated decision report when she wrote the letter, as she wrongly stated that prior approval was not required, whereas in fact the decision of 22 March 2022 granted prior approval, following the recommendation in the report. Whilst the errors in the letter are regrettable, I am satisfied that they did not influence the decision that was made on the application.

The officer referred to “further legal advice” received in the report of 3 December 2021 and the Council disclosed the legal advice which was given by the same solicitor to the officer on 21 June 2021. It correctly advised on the statutory test, and so I am satisfied that the errors in the letter of 24 March 2022 were not part of the earlier advice and so did not mislead the officer in 2021.

Therefore, for the reasons I have given, Ground 1 does not succeed, although I accept that the Claimant’s points were arguable and therefore permission is granted.

The Claimant submitted that 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.

Where the effect of a decision delegated to an officer is to grant a permission or licence, then the decision-making officer must produce a written record of the decision: Openness of Local Government Regulations 2014, regulation 7(1),(2)(b)(i).

By regulation 7(3):

The Council was therefore under a statutory duty to provide reasons for granting the prior approval. Where there is a duty to give reasons, those reasons must be intelligible and adequate (R (CPRE Kent) v Dover District Council [2017] UKSC 79, [2018] 1 WLR 108, per Lord Carnwath JSC at [30]; [35] – [42]).

The Claimant made four main complaints:

In my judgment, the reasons for the decision of 22 March 2022 were adequately set out in the delegated decision report of 7 March 2022, in accordance with standard practice. The statutory duty to give reasons was discharged.

The solicitor’s letter of 24 March 2022 did not contain the reasons for the decision, as I have explained in paragraph 65 above.

The Council was not required to give further reasons to explain the dates on which documents were issued and the reasons for any delays in issuing documents. Nor was it required to give reasons for the contradictions between the delegated decision report and the solicitor’s letter of 24 March 2022. The duty to give reasons only exists in respect of a decision. These matters were not decisions.

Furthermore, in my judgment, section 31(3D) of the Senior Courts Act 1981 applies, as it is likely that the outcome for the applicant in this claim would not have been substantially different if the conduct referred to at paragraph 72 above had not occurred.

Therefore permission to apply for judicial review is refused on Ground 2.

Permission to apply for judicial review is granted on Ground 1, but refused on Ground 2. The claim for judicial review is dismissed.