Background
Roe Buck Holdings owns Emer Farm, a 5.4-hectare agricultural property in Ampfield. The company obtained two prior approvals under Class Q of the General Permitted Development Order to convert an existing agricultural building into five residential dwellings. The first approval (June 2020) expired without implementation. A second approval was obtained in April 2023 and implemented, but the works departed materially from the approved details. Test Valley Borough Council therefore served an enforcement notice requiring demolition and site clearance.
The company appealed the enforcement notice under section 174 of the Town & Country Planning Act 1990, raising five grounds. An Inspector appointed by the Secretary of State heard the appeal on 10 March 2026 and dismissed it by decision letter dated 2 April 2026, save that he extended the compliance period from three months to twelve months on one ground. The company now sought judicial review, advancing three grounds of appeal to the High Court.
The Court’s Holding
This was an oral permission hearing to determine whether the three grounds of appeal were sufficiently arguable to proceed to substantive review. Deputy High Court Judge Tim Smith granted permission on two grounds and refused it on the third. On Ground 1, the court held it arguable that the Inspector had wrongly interpreted planning policy COM2(b) of the Local Plan. That policy permits countryside development only if “it is essential for the proposal to be located in the countryside.” The Inspector had treated “essential” as requiring proof of a functional need for the building in that location. The court found arguable an alternative interpretation: that “essential” could refer to location necessity (i.e., some developments inherently require countryside siting), rather than functional need. The policy may be designed to guide location choice when a development could plausibly occur in either countryside or built-up areas.
On Ground 2, the court found arguable that the Inspector had failed to give adequate weight to a fall-back argument. The company had noted that an identical agricultural building could be erected using permitted development rights under the General Permitted Development Order, subject to prior approval. Although no legal entitlement existed at the decision date (prior approval still being required), the court found it arguable that the Inspector should have assessed the probability that prior approval would be granted and the building rebuilt, drawing on the court’s own precedent that fall-back positions need only be “a possibility” or “more than a merely theoretical prospect.”
On Ground 3, the court refused permission. The company argued that the Inspector had failed to accord sufficient weight to the sustainability concern that demolishing a building with embedded carbon, when an identical replacement could be built under permitted development rights, would waste that embodied carbon. The Inspector had acknowledged this argument but assigned it “neutral weight” on the basis that accepting it would undermine enforcement action generally by rewarding unlawful conduct with a sustainability defense. The court found this reasoning logical and not susceptible to challenge as irrational.
Key Takeaways
- Policy interpretation is a matter of law subject to court supervision; while the Inspector’s application of policy to facts is a planning judgment courts respect, the meaning of policy language is reviewable.
- The word “essential” in planning policy may refer to functional need or to location necessity, and both interpretations merit consideration depending on policy context.
- Fall-back arguments involving permitted development rights that require prior approval are not defeated merely because no unimpeachable entitlement exists at the decision date; the Inspector should consider the probability of subsequent approval and implementation.
- Sustainability and embodied carbon arguments in enforcement cases may receive limited weight if accepting them would systematically undermine enforcement as a planning tool.
Why It Matters
This judgment clarifies important boundaries in judicial review of enforcement appeals. It establishes that policy interpretation—as distinct from policy application—remains subject to court review, and that Inspectors must carefully articulate which interpretation they are adopting. It also reiterates that fall-back positions need not offer cast-iron legal rights at the decision date; if they represent a realistic prospect, they must be evaluated. The decision signals that while sustainability considerations are material, courts will not permit them to be weaponized as a systematic shelter against enforcement when they would reward violations of planning control.
The case returns to the substantive merits for Grounds 1 and 2, but the permission decision provides important guidance on the threshold for arguability and the proper approach to interpreting settlement hierarchy policies in the context of countryside development. The judgment will be of particular interest to practitioners handling enforcement appeals involving permitted development fall-backs and to local planning authorities defending enforcement decisions against policy-interpretation challenges.