Samuel Smith Old Brewery (Tadcaster), R (on the application of) v Selby District Council & Ors

When assessing whether a proposal reuses buildings in the Green Belt, the decision-maker must consider whether the previous use has a realistic prospect of resuming. The relevant inquiry is not confined to a checklist of factors drawn from another case. Where resumption requires planning permission for operational development, the decision-maker must consider whether there is a realistic prospect of obtaining that permission. The decision-maker must also consider whether the resumed use would be commercially viable. A provisional planning judgment may be formed for this purpose without prejudging any future application. Material evidence bearing on access, demand and viability must be addressed.

The claimant, a local landowner, sought judicial review of Selby District Council’s grant of planning permission for alterations and extensions to former filling-station and restaurant buildings in the Green Belt, to provide offices. The permission followed an earlier permission that had been quashed by consent after the claimant challenged the Council’s approach to the site’s former use.

On reconsideration, the Council treated the present use as a petrol filling station, restaurant and car wash, concluding that there was a reasonable prospect of resumption. The central issues were whether the former uses had been abandoned and whether the Council could reasonably compare the proposed office use with a realistic prospect of those uses resuming.

1. The application was allowed. The planning permission was quashed, and the defendant was ordered to pay the claimant’s costs, subject to detailed assessment unless agreed.
2. The Council had approached abandonment by reference to the physical condition of the buildings, the period of non-use, intervening use and the owner’s intention. Those matters were relevant, but the factors identified in The Secretary of State for the Environment v Hughes [2000] 80 P&CR 397 were not an exhaustive statutory test. Hughes did not require a reasonable decision-maker to ignore the physical condition of the site or the need for planning permission to reinstate essential structures.
3. The real question was whether there was a reasonable or realistic prospect of the petrol filling-station use resuming. Because tanks and pumps had been removed, resumption required planning permission for operational development. The Council therefore had to form a provisional view, without prejudging any future application, on whether such permission had a realistic prospect of being granted.
4. Commercial viability was also a necessary precondition to a realistic prospect of resumption. The Council could not reasonably rely solely on the applicants’ indication that they might pursue a filling-station use if a nearby motorway service-area proposal failed. It had to engage with evidence that the former operators had closed because of inadequate access and egress, that alternative facilities were available nearby, and that traffic volumes had fallen.
5. The report failed to address both preconditions. It also failed to consider whether restaurant-only reuse was realistic or whether use of the former filling-station area as a car wash alone would require planning permission. These defects fundamentally flawed the Council’s assessment of the prospects of resumption.

The judgment records that an earlier grant of planning permission had been quashed by consent on 24 September 2004 following the claimant’s earlier judicial review challenge. The present proceedings concerned the Council’s reconsidered decision dated 4 March 2005.