Samuel Smith Old Brewery (Tadcaster), R (on the application of) v Secretary of State for Communities and Local Government

Where a planning decision is conceded to be unlawful on one ground, the court should usually avoid deciding additional planning issues. It may nevertheless address a further ground where the claimant shows a real advantage and the issue is not academic. Declaratory relief is justified only where the planning policy and its application admit of one lawful answer, so that the court does not usurp the decision-maker’s function.

Under PPG2, an essential facility for an “other use” must be assessed by reference to the whole relevant planning unit. The decision-maker must nevertheless ask whether the building itself preserves Green Belt openness, considering its size, location, building blocks and appearance. Existing use may be relevant to whether facilities are genuinely required, but the court should be slow to substitute its planning judgment for that of the inspector.

An inspector allowed enforcement appeals concerning a substantial equestrian building in the Green Belt, quashed the enforcement notices and granted planning permission. The inspector departed from the parties’ longstanding common ground that the building was inappropriate development under PPG2.

The claimant challenged the decision by judicial review and under sections 288 and 289 of the Town and Country Planning Act 1990. The defendant conceded that the inquiry had been procedurally unfair because the parties had not been given a proper opportunity to address the inspector’s new issue. The claimant nevertheless sought findings that the inspector’s substantive conclusions were unlawful and that the building was necessarily inappropriate development. The central issues were the court’s jurisdiction, the consequences of the concession, and the extent to which the court could determine the planning merits.

1. Disposition. The parties agreed that the inspector’s decision had to be quashed for procedural unfairness and the matter remitted to a different inspector. The court refused declaratory relief on the substantive planning issue. The section 289 appeal was misconceived because the claimant had no interest in the land to which the enforcement notice related. The section 288 challenge could proceed on traditional public law grounds, but the court’s power was confined to quashing the planning permission.
2. Although a further ground will ordinarily be academic after a conceded quashing ground, the court may address it where the claimant demonstrates a real advantage in doing so. A declaration may be appropriate only in the exceptional case where the relevant policy interpretation and its application admit of one answer only. A finding that reasons were inadequate would not justify a declaration.
3. Under paragraph 3.4 of PPG2, the residual category concerning “other uses of land” referred to the whole planning unit. The question whether the proposed building preserved Green Belt openness nevertheless had to be addressed by considering the building’s size, relative location, building blocks, appearance and all other relevant matters. There was no additional requirement to prove that the development could not take place elsewhere.
4. The existing use of the site in 1999 was capable of being relevant to whether the proposed facilities were essential. The inspector’s reasoning that the building was essential merely because it was required for the expanded use proposed by the owners was circular and flawed. That did not make the conclusion Wednesbury unreasonable.
5. Planning policy interpretation and its application were ordinarily matters for the inspector. The court had to be extremely slow to substitute its own planning judgment. On the evidence, and allowing for further evidence on remission, this was not the exceptional case in which only one Wednesbury-reasonable conclusion was available.
6. The claimant was awarded its costs up to 16 October 2009 and ordered to pay the defendant’s costs thereafter, subject to set-off. Permission to appeal was refused.

The judgment does not state an appellate history for this decision. The inspector’s decision was quashed for procedural unfairness and remitted to another inspector for reconsideration.