Court of Appeal makes recommendation on how to best avoid disagreements about the lawfulness of planning decisions
In R (Save Britain’s Heritage) v Herefordshire Council  EWCA Civ 723, the Court of Appeal (The Senior President of Tribunals, Lord Justice Lewis and Lady Justice Elisabeth Laing) dismissed an appeal by Save Britain’s Heritage in respect of a decision by Herefordshire Council, represented by Jack Parker, to grant prior approval for the demolition of a non-designated heritage asset.
The demolition of a building is permitted development pursuant to Class B, Part 11 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”). However, paragraph B.1(a) of Class B provides that development is not permitted under the GPDO where “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 Council’s decision to grant prior approval for the demolition in question (a former schoolhouse in Garway, Herefordshire) was challenged on the basis that the officer had misunderstood and misapplied paragraph B.1(a) in finding that the proposed demolition was permitted by the GPDO.
The Court held that, although the decision contained errors, those errors were not material to the officer’s finding that the building was not “unsafe or otherwise uninhabitable” so that paragraph B.1(a) did not apply. Whether the building was unsafe or uninhabitable was a matter of evaluative judgment and the officer’s judgment on that issue was lawful with the consequence that paragraph B.1(a) was not engaged for that reason alone. Further, the fact that the officer had used different language to the statutory provision in his delegated decision report did not mean that he had misunderstood or misapplied the provision. The Court dismissed the appeal and upheld the decision to grant prior approval.
However, the President of Tribunals noted (at paragraph 29 of the Judgment) that disputes about whether a decision such as this was lawful “may best be avoided if the officer not only refers to the legislation but also frames his assessment in the language it contains, rather than a paraphrase or summary of his own.”
However, he went on to say that it is not “essential” for a decision to be phrased by reference to the statutory language in order to be lawful: “It will be enough if, on a fair reading of the officer’s report as a whole, his assessment leaves no room for genuine, as opposed to forensic, doubt that he has conducted himself lawfully. The operative part of his reasoning must demonstrate that he has understood what the legislation requires the authority to decide, has asked himself the questions he should, and in answering those questions has not committed any error fatal to the decision itself. In establishing whether that is so, the court must read the report, as always, with realism and good sense (see the judgment of Lord Carnwath in R. (on the application of CPRE Kent) Ltd. v Dover District Council  UKSC 79;  1 W.L.R. 108, at paragraphs 35 to 42, citing the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No.2)  1 W.L.R. 1953, at paragraph 36, and the judgment of Sir Thomas Bingham M.R., as he then was, in Clarke Homes Ltd. v Secretary of State for the Environment  PTSR 1081, at p.1089).”