Home > Cases > Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities & Ors [2009] EWCA Civ 333

UK Coal Mining Ltd owned a defunct industrial site in the area of the local planning authority. In 2005, it made a planning application for the retention and reuse of four structures: an amenity block, a workshop, stores, and a covered stockyard; landscaping; infrastructure; and rail sidings. The application was subsequently called in by the first Secretary of State, under s 77 of the Town and Country Planning Act 1990, specifically on the ground that it might ‘conflict with national policies on important matters’. An inspector recommended the grant of planning permission subject to a number of conditions. The Secretary of State agreed with the inspector, stating that although the proposal was not in accordance with the relevant development plan as a whole and government policy relating to the location of employment uses and accessibility, to grant planning permission with the conditions suggested would be appropriate for the purposes of ensuring sustainable development. She concluded, in particular, that: ‘the proposal gains support from reusing a valuable asset… and there are significant benefits in bringing the site back into use for industrial or distribution uses that can make use of the rail connections and therefore foster the movement of goods by more sustainable means… the risk of harm caused by leaving unoccupied buildings in the open countryside would be sufficiently mitigated by the imposition of condition 7, requiring their removal in the event that they were not brought into use within 5 years of the date of granting planning permission’. The claimant objected to that conclusion, asserting that instead of putting the site to an alternative use, that it should be demolished. The claimant’s challenge to the grant of planning permission failed before the Administrative Court (see [2008] All ER (D) 162 (Jun)). It appealed.

It contended that the Secretary of State had failed properly to consider its evidence that it would not be financial viable to convert the structures in question; that there was no evidence of any demand for the use of the buildings. It submitted that the Secretary of State’s decision had been based upon mere speculation or theoretical rather than real possibility that an occupier who wished to use the retained buildings would be found within five years.

Held: appeal dismissed.

It was important to note in the context of the instant case that a ‘real prospect’ was used as the antithesis of a ‘merely theoretical prospect’. In order for a prospect to be real, it did not have to be probable or likely, but rather, a possibility would suffice. It was also important to bear in mind that fall-back cases tended to be very fact specific.

Click here for the judgment

In the instant case, the inspector and Secretary of State had recognised that it was uncertain as to whether any user would be found for the retained buildings. However, they were not convinced that ‘no user would be forthcoming’ and that significant benefits, if the buildings were so used, would justify the risk that unoccupied buildings would be left in the open countryside so that condition 7 mitigated the risk. Viability had not been raised as a wholly freestanding issue, but was part and parcel of the entire case. Need, demand and viability had all been interlinked. In all the circumstances, it was a matter for the inspector and Secretary of State’s planning judgment. The Secretary of State had been entitled to reach the decision she had on the evidence.

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