Introduction

In the landmark case of Save Britain's Heritage, R (On the Application Of) v Herefordshire Council ([2023] EWCA Civ 723), the England and Wales Court of Appeal addressed pivotal issues surrounding permitted development rights and their exclusions under the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO). The appellant, Save Britain's Heritage, contested the Herefordshire Council's decision to permit the demolition of the Old School in Garway, Herefordshire, arguing that the decision improperly interpreted and applied paragraph B.1(a) of Class B, Part 11 of Schedule 2 of the GPDO. The case underscores the intricate balance between development rights and heritage conservation.

Summary of the Judgment

The Court of Appeal upheld the initial decision by the Herefordshire Council, as determined by Lang J., to allow the demolition of the Old School under permitted development rights. The crux of the appellant's argument centered on the alleged misinterpretation of paragraph B.1(a) of the GPDO, specifically contending that the planning officer erred by requiring an intention to render the building unsafe or uninhabitable—a component not stipulated in the legislation. However, the Court found that despite the planning officer's imperfect language, the substantive decision aligned with the statutory requirements, as the Old School did not meet all three necessary criteria for exclusion under paragraph B.1(a). Consequently, the appeal was dismissed.

Analysis

Precedents Cited

The judgment references several key cases that guide the interpretation of planning laws:

• Tidal Lagoon (Swansea Bay) Plc v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 1579: This case emphasizes the rigorous judicial approach to statutory interpretation within planning law, aligning it with the broader principles governing legislative interpretation.
• CAB Housing Ltd. v Secretary of State for Levelling Up, Housing and Communities [2023] EWCA Civ 194: Reinforces that courts scrutinize planning decisions to ensure lawful application of statutes, upholding the integrity of delegated decision-making by planning officers.
• R. (on the application of CPRE Kent) Ltd. v Dover District Council [2017] UKSC 79; South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953; and Clarke Homes Ltd. v Secretary of State for the Environment [2017] PTSR 1081: These cases collectively highlight the necessity for planning officers to accurately apply legal tests and for courts to interpret such applications with realism and adherence to legislative intent.

Legal Reasoning

The Court of Appeal meticulously dissected the planning officer's interpretation of paragraph B.1(a), which excludes certain demolitions from permitted development rights if the building has been rendered unsafe or uninhabitable by a person with an interest in the land and if practicable safety measures are feasible. The appellant contested that the inclusion of the term "intentionally" introduced an unlawful element not present in the statute. However, the Court determined that the officer's decision was fundamentally grounded in whether the building met the three-limb test, irrespective of the flawed terminology.

The planning officer had observed that the Old School was structurally sound and did not appear neglected, thereby failing to satisfy the first criterion of being unsafe or uninhabitable. The Court held that the officer's aggregate findings—despite linguistic inaccuracies—effectively demonstrated compliance with the statutory framework.

Impact

This judgment reinforces the judiciary's role in ensuring that delegated planning decisions adhere strictly to legislative mandates. By affirming the council's decision, the Court of Appeal clarified that minor errors in a planning officer's report do not necessarily invalidate a decision, provided the substantive legal tests are correctly applied. This sets a precedent for future cases involving permitted development rights, particularly in balancing development with heritage conservation.

Additionally, the decision emphasizes the importance of clarity in applying legal criteria, potentially encouraging more precise language in delegated decision-making reports to avoid ambiguities in judicial reviews.

Complex Concepts Simplified

Permitted Development Rights

Permitted Development Rights allow certain building works and changes of use to be carried out without the need to apply for planning permission. These rights are outlined in the GPDO and are subject to specific classes and conditions. In this case, Class B, Part 11 pertains to the demolition of buildings.

Judicial Review

A Judicial Review is a legal process where courts examine the lawfulness of a decision or action made by a public body. It does not assess the merits of the decision but ensures that it was made following correct legal procedures and principles.

Paragraph B.1(a) of the GPDO

This specific provision outlines conditions under which the demolition of a building is not considered permitted development. It includes three key elements:

• The building must be rendered unsafe or uninhabitable.
• This condition must result from the actions or inactions of a person with an interest in the land.
• It must be practicable to secure safety or health by repairs or temporary support.

All three elements must be satisfied for the exclusion to apply.

Conclusion

The Save Britain's Heritage v Herefordshire Council [2023] EWCA Civ 723 judgment serves as a critical interpretation of permitted development rights within the UK planning framework. The Court of Appeal's decision underscores the necessity for planning officers to apply legal tests diligently, even when minor errors in reporting occur. It reaffirms that as long as the substantive criteria are met and correctly assessed, ancillary mistakes in language do not undermine the validity of planning decisions. This case reinforces the balance between development rights and heritage preservation, ensuring that lawful and well-founded decisions prevail while providing clarity for future applications and judicial reviews.

Key Takeaway: Accurate application and interpretation of statutory provisions are paramount in planning decisions. While precision in language is important, the substantive alignment with legal criteria ultimately governs the lawfulness of such decisions.