Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities & Ors

A planning decision-maker retains a broad, case-specific planning judgment when assessing an uncertain prospect of beneficial development. A prospect need not be probable in order to be real; a possibility, rather than a merely theoretical prospect, may suffice. The significance of the planning benefit and the gravity of the risk if it does not materialise are relevant to that judgment.

Where retained buildings may deliver substantial benefits through rail-linked use, permission may be granted for a limited period despite uncertain demand, provided a condition adequately mitigates the risk that the buildings will remain unused. An inspector need not produce alternative viability calculations or reach a firm conclusion on viability where it depends on an unidentified prospective user’s requirements.

The Secretary of State granted UK Coal conditional planning permission to retain and reuse buildings, rail sidings and infrastructure at a former coal mine. The proposed retained buildings included a large covered stockyard. The permission required demolition and restoration if the buildings were not used wholly or mainly for rail-related purposes within five years.

The brewery had opposed the proposal. It contended that there was no realistic prospect of a suitable occupier, because refurbishment would not be economically viable. Cranston J dismissed its application under section 288 of the Town and Country Planning Act 1990 to quash the decision: [2008] EWHC 1313 (Admin). The brewery appealed, arguing that the inspector and Secretary of State had failed to address viability and had relied on impermissible speculation about future reuse.

1. Appeal dismissed. Sullivan LJ, with whom Sir Anthony Clarke MR and Toulson LJ agreed, held that the inspector and Secretary of State had lawfully exercised their planning judgment.

2. The expression real prospect, discussed in Brentwood BC v Secretary of State for the Environment [1995] 72 P&CR 61, distinguishes a possibility from a merely theoretical prospect. It does not require probability. Fall-back cases are particularly fact-sensitive. More generally, judicial formulations derived from particular planning facts must not improperly constrain the broad planning discretion to be exercised in the circumstances of each case.

3. The inspector and Secretary of State had recognised the uncertainty about whether a rail-related occupier would be found. They were nevertheless entitled to conclude that reuse could not be ruled out, that the rail-linked benefits would be significant if it occurred, and that the risk of harm from vacant buildings was sufficiently mitigated by Condition 7. They could therefore preserve that opportunity for five years.

4. Viability was not treated as irrelevant. Need, demand and viability were interlinked. The inspector had considered the evidence that refurbishment would be substantial and costly, but was not required to make his own calculations or reach a definitive conclusion about viability without knowing a prospective user’s particular requirements. The appellant’s appraisal was no more than a time-specific assessment based on assumed inputs.

5. The decision letter adequately adopted the inspector’s balanced conclusion that neither rapid occupation nor the absence of any suitable user had been established. The planning permission accordingly remained effective.

• Court of Appeal (Civil Division): dismissed the brewery’s appeal and upheld the refusal to quash the Secretary of State’s planning permission.
• High Court, Administrative Court: Cranston J dismissed the brewery’s application under section 288 of the Town and Country Planning Act 1990 to quash the decision letter: [2008] EWHC 1313 (Admin).