Town and country planning – Permitted development – Prior approval – Interested party owning former school house – Defendant local authority granting planning permission for demolition of property with permitted development rights – Claimant charity applying for judicial review – Whether interested party allowing building to become uninhabitable by failing to maintain it so that proposed demolition excluded from permitted development rights – Application dismissed
The Old School, Garway, Herefordshire, was an attractive Victorian stone-built, former school house. The school, which was built in 1877, served as the village primary school until 1980. It was unlisted but was of sufficient architectural quality to be considered a non-designated heritage asset and it occupied a prominent roadside location close to the primary school and community centre.
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 appeared the school house was vacated in about 1997. Since then, it had remained vacant and boarded up.
The interested party was the owner of the school who applied for prior approval of its demolition. The defendant local planning authority decided the proposed demolition was within permitted development rights.
The claimant was a charity which campaigned for the conservation of historic buildings. It applied for judicial review of that decision. It submitted that the defendant’s decision, and the proposed demolition, were unlawful on the grounds that the defendant 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 (GPDO 2015); and so its determination whether the proposed demolition was excluded from the permitted development rights was unlawful.
Held: The application was dismissed.
(1) Planning permission was granted by permitted development rights under schedule 2, part 11, class B of the GPDO 2015. The permitted development in class B was any building operation consisting of the demolition of a building. Paragraph B.1. set out limitations and exclusions where development was not permitted. It provided that development was not permitted by class B if — “(a) 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; …”.
The claimant had argued the uninhabitable nature of the building arose from the interested party’s failure to maintain it so that it had been “rendered unsafe or otherwise uninhabitable by the action or inaction of any person having an interest in the land”.
(2) In Keenan v Woking Borough Council [2017] EWCA Civ 438; [2017] PLSCS 134; [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 enabled 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”.
In New World Payphones Ltd v Westminster City Council and another [2019] EWCA Civ 2250; [2020] EGLR 5, 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 the present case, if the court found the defendant had misdirected itself in law, even though, unlike this case, no exercise of planning judgment had been required to make the determination in Westminster.
(3) Both parties agreed that, as the application was received on 8 February 2022 and was not determined until more than 28 days later, the prohibition on the commencement of development afforded by paragraph B.2(b)(vii) of class B had expired by virtue of paragraph B.2(b)(vii)(cc). Therefore, the claim was academic.
However, if the court were to find in the present case that the defendant had erred in deciding that the proposed demolition was permitted development and proceeded to quash the grant of prior approval, the defendant could then be ordered to reconsider 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 the interested party 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, this claim was 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 1981 Act should be disregarded.
(4) Development was not permitted by class B if paragraph B.1(a) applied. The statutory test in paragraph B.1(a) contained three limbs, each of which had to be satisfied: (i) the building had been rendered unsafe or uninhabitable; ii) by the action or inaction of any person having an interest in the land; and (iii) it was practicable to secure safety or health by works of repair or works for affording temporary support.
Each limb of the statutory test required the defendant to make an evaluative judgment, based upon the available evidence: the application, the objections and the site visit. Here, the planning 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.
The planning officer had erred in including the word “intentional” when he was paraphrasing the statutory test, since intention was not part of the test in paragraph B.1(a). 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 could not succeed by reference to failings in respect of his approach to the second or third limbs: They were immaterial.
Richard Harwood OBE KC (instructed by Harrison Grant Ring) appeared for the claimant; Jack Parker (instructed by Herefordshire County Council) appeared for the defendant; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Save Britain’s Heritage) v Herefordshire County Council