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

This is an application for judicial review of a grant of planning permission dated 4 March 2005, by the defendant to the interested parties, for: "Proposed alterations and extensions to former Little Chef and filling station buildings to provide class B1 office accommodation" at former Little Chef and filling station, Bramham Crossroads, A64 (Eastbound), Stutton, Tadcaster ("the site").

The site is within the Green Belt and is immediately adjacent to, although not within, a locally important landscape area as designated in the Selby District Local Plan. The claimant is a local land owner; the defendant does not dispute that it has sufficient interest to bring these proceedings.

So far as is relevant for present purposes, the planning history of the site is as follows. On 26 February 1975, planning permission was granted for a "self-service filling station and quick grill restaurant" at Bramham Crossroads. 21 October 2001, a Highways Compulsory Purchase Order was confirmed which, inter alia, stopped up the existing access arrangements to the site and provided a new loop access of the A64 eastbound carriageway slip road. The use of the site as a petrol filling station and restaurant ceased in or about 2001. The interested parties acquired the site in January 2003, and in March 2003 they applied for planning permission for the erection of a two-storey office building (B1 use). The existing buildings on the site were to be demolished. In order to justify granting planning permission for new office development in the Green Belt, the local planning authority would have had to be satisfied of the existence of very special circumstances. Since the interested parties were unable to demonstrate the existence of such circumstances, they amended the application to one for the reuse of the existing buildings with extensions for B1 purposes.

Despite the claimant's objections, the defendant granted planning permission for those amended proposals on 16 April 2004.

The claimant challenged that grant of planning permission in judicial review proceedings and the permission was quashed by a consent order made on 24 September 2004. In that challenge, the claimant contended in its detailed statement of grounds that:

In the consent order, the defendant accepted that the planning permission should be quashed for the reasons given in the detailed statement of grounds.

Prior to the defendant's reconsideration of the application on 2 March 2005, further information was submitted by the agents for the interested parties, and the claimant's agents sent further letters of objection. An officer's report was prepared for the meeting of the defendant's planning committee on 2 March 2005. There is no suggestion that members, in deciding that planning permission should be granted, departed in any way from the approach that was set out in the report, which recommended the grant of planning permission subject to a number of conditions.

The report referred to the quashing of the earlier decision, and said that it aimed to address all aspects of paragraph 3.8 of PPG2. Paragraph 3.8 is in these terms:

Sub-paragraph (a) and, in particular, the concept of "the present use" of the site is of particular relevance for the purposes of these proceedings. It is common ground that, in considering whether the proposed development for B1 use would have a materially greater impact on the openness of the Green Belt and the purposes of including land within it, the defendant compared the proposed use with a "present use" as petrol filling station incorporating a car wash, and restaurant, upon the basis that there was a "reasonable prospect of the use of the site for petrol filling station A3 and car wash resuming".

It was upon that basis that the officers were satisfied "that the proposal constitutes appropriate development as defined in paragraph 3.8 of PPG2. As such the applicant has no need to demonstrate very special circumstances".

On behalf of the defendant, Mr Ponter accepted that the question for the defendant was not whether there was a theoretical possibility of such a use resuming, but whether there was a realistic prospect of it doing so. He submitted that this was the test which had been explicitly applied in the report, and the defendant's conclusion that there was such a prospect could not be described as Wednesbury perverse.

Having set out the relevant policy extracts, the report dealt separately with abandonment and with resumption of the lawful use. Since the report has to be read and understood as a whole, it is necessary to set out those two sections of the report in full. They are as follows:

It will be noted that the petrol tanks, canopy and pumps had been removed by the former operators, BP. The report stated that "the canopy was removed to allow decommissioning works that are required by environmental legislation to be undertaken by the previous owner". Those decommissioning works included backfilling "when (the) fuel stores were removed".

Although his submissions were developed in a number of different ways, Mr Tabachnik's overarching submissions on behalf of the claimant were:

In his skeleton argument, on behalf of the defendant, Mr Ponter submitted that:

Those four factors are derived from the Court of Appeal's decision in The Secretary of State for the Environment v Hughes [2000] 80 P&CR 397. As is so often the case, the emphasis placed upon these factors in the officer's report and in the defendant's skeleton argument illustrates the danger of treating judicial dicta dealing with factors which were undoubtedly relevant for the purposes of that particular appeal as though they were enactments and in some way determinative of the relevant factors in the very different circumstances of the present case. In Hughes, the question was whether an application for planning permission to replace a dwelling house in the Green Belt fell within the local planning authority's policy of granting planning permission for such development only where the residential use had not been abandoned, and where that issue fell to be tested against four criteria, namely: (1) the physical condition of the building; (2) the length of time for which the building had not been used for residential purposes; (3) whether it had been used for any other purposes; and (4) the owner's intentions (see page 398). In that context, the Court of Appeal concluded that the owner's intentions, while relevant, could not be decisive "because at the end of the day the test must be the view to be taken by a reasonable man with knowledge of all the relevant circumstances" (see per Kennedy LJ, with whom Thorpe LJ and Mance LJ agreed, at page 402).

Hughes is not authority for the proposition that, in deciding whether the use of a site as a petrol filling station has been abandoned, the "reasonable man with knowledge of all the circumstances" would simply ignore the fact that the physical condition of the site was such that planning permission would be required for operational development which would be necessary to reinstate structures, without which the use as a petrol filling station could not lawfully be resumed.

Decisions dealing with abandonment usually turn upon their own particular facts, and the courts have not previously had to consider whether it can be said that a use has not been abandoned if (whether as a result of neglect or some deliberate act on the part of the landowner such as demolition) planning permission would be required for operational development before the use could be resumed. Dealing with a car sales use, where such a question did not arise, Lord Denning said in Hartley v the Minister of Housing and Local Government [1970] 1 QB 413 at 420G:

Considering the facts of the present case, if the previous use as a petrol filling station cannot be resumed unless planning permission is obtained for structures which are an integral part of that use (the petrol tanks and pumps; a canopy might be regarded as an optional extra), it makes little practical sense to say that while the use has not been "abandoned", it may not be resumed unless such a planning permission is obtained. In my view, the defendant misled itself by concentrating on the question of abandonment rather than addressing the real question, which was: is there a reasonable (or realistic) prospect of the use of the site as a petrol filling station resuming? To which the answer had to be "no" unless there was a reasonable (or realistic) prospect of planning permission being obtained for the erection of a canopy and the installation of pumps and tanks on this Green Belt site.

Mr Ponter accepted that the report did not address the latter issue. He submitted that the report correctly stated that "whether or not any proposal for the future use of the site would require planning permission is a judgment that would have to be made by the Council at the time". He further submitted that the claimant's agent had recognised that it would be neither possible nor proper for the defendant to prejudge the merits of a potential planning application for petrol filling station use. In a letter dated 18 February 2005, the claimant's agent had said:

There is no dispute between the parties that the erection of a canopy, the installation of pumps and the excavation and construction of petrol tanks would be operational development which would require planning permission. While I would accept the proposition that the defendant could not and should not prejudge the outcome of any possible future application for planning permission for such Development, that does not mean that the defendant was prevented from forming a provisional planning judgment (expressly without prejudice to its formal consideration of any future application) as to whether or not there was a realistic or reasonable prospect of such a planning permission being obtained on this Green Belt site with its history of petrol filling station use. Absent such a judgment, the defendant could not reasonably have been "satisfied that there is a reasonable prospect of the use of the site for petrol filling station ... resuming".

Obtaining a planning permission is a necessary pre-condition before that use could resume, but Mr Ponter accepted that, even if planning permission was obtained, there would not be a realistic or reasonable prospect of such a use resuming unless it would be commercially viable. He submitted that the defendant had considered the issue of viability by reference to Chesterton's letter and the information from the interested parties that a petrol filling station use "is likely to be pursued in the event of this application and the nearby MSA proposal failing (subject to any necessary consents for the reinstallation of pumps, tanks and canopy)".

Subsequent to the defendant's decision to grant the planning permission under challenge in these proceedings, the Secretary of State refused to grant planning permission for the nearby MSA proposal located between the site and the A1(M). Chesterton's letter is dated 25 October 2004, and says that they were instructed in January 2003 to erect an "all enquiries" board on the site, to ensure that the widest possible degree of market interest was attracted. The letter went on to say:

As long ago as 14 April 2004 (in connection with the earlier planning permission which was quashed by consent), the claimant's agent had written to the defendant saying:

These assertions have never been refuted by either the defendant or the interested parties. They are simply not referred to in the report. The report does acknowledge that Chesterton's had received no enquiries for a petrol filling station use, but concludes that "there is a reasonable prospect" of a petrol filling station use resuming on the basis of information that had been given by the applicants for planning permission, that they would be likely to pursue such a use if the nearby MSA proposal was not successful (subject to the obtaining of any necessary planning permission).

It is not clear the applicants for planning permission are professional developers, but there is no suggestion in the report or elsewhere that they are petrol filling station operators, or that they have any relevant expertise in the development or operation of petrol filling stations.

I accept that the Wednesbury threshold is a very high one, but, in my judgment, the defendant could not reasonably have concluded, simply on the basis of that provisional indication from the applicants for planning permission for a B1 use, that there was a reasonable prospect that a petrol filling station use would be commercially viable, and that there was therefore a reasonable prospect that such a use would resume. I do not suggest that, in the circumstances of this particular application, which was for a B1 use, an elaborate study of the viability of a petrol filling station use for the site would have been required. I do, however, suggest that the defendant was at least required to consider the implications of the information in the letter from the defendant's agents on 14 April 2004, namely that the previous petrol filling station and cafe uses -- with very experienced retailers in their respective fields, BP and Little Chef -- had been closed because of inadequate access and egress arrangements, and that since closure the A64 had been provided with alternative facilities for fuel and refreshment at Bilbrough, so that there was now no need for any further facilities at the site.

I do not say that the defendant would have been obliged to agree with those contentions. I do say that it had to engage with them. The consideration of the access arrangements simply by reference to the design standards of the new access does not address the first of the points made in the letter of 14 April 2004, and the second point is not considered at all despite the fact that the report states that "traffic speeds and volume in proximity to the site are considerably less following the changes to the intersection (my emphasis)". If traffic volumes in proximity to the site are considerably less than they were when the cafe and petrol filling station uses ceased in 2001, what, if anything, does that say about the prospects of any resumption of such uses being commercially viable?

In summary, the report, and therefore the defendant, did not address the two pre-conditions for there to be a reasonable prospect of the petrol filling station use resuming: (a) was there a reasonable prospect of obtaining planning permission for the operational development that would be necessary to enable a petrol filling station use to resume; and (b) was there a reasonable prospect that such a resumed use would be commercially viable.

Since the report dealt with the matter on the basis that there was a reasonable prospect of a resumption of a mixed use for petrol filling station, restaurant and car wash, there was understandably no consideration of whether the resumption of a restaurant use without any petrol filling station would be a realistic prospect, and no consideration of the question whether, even if commercially viable, reuse of the petrol filling station part of the site as a car wash only would require planning permission. Whilst the report correctly concluded that reinstalling the machinery within the building would not require planning permission, it did not address the question whether use simply as a car wash would be a material change of use from use as a petrol filling station with ancillary car wash which would require planning permission. Again, the defendant was not prevented from forming at least a provisional view about that issue (without prejudice to the determination of any formal application under the Town and Country Planning Act) for the purposes of enabling it to determine this application for planning permission.

In the light of the conclusions set out above, it is strictly speaking unnecessary for me to reach any concluded view in respect of the remaining submissions advanced by Mr Tabachnik, but I do have grave doubts as to whether the very limited information in Chesterton's letter could have been a proper basis for a conclusion that there was a reasonable prospect of the use of the site for restaurant or car wash resuming. The letter merely stated that there had been enquiries, but gave no indication as to whether those enquiring, when they had been provided with particulars, had formed the view that the site had some commercial prospects as a restaurant or car wash, or had concluded that, for example, because of difficulties in relation to access, there was no such commercial potential. The report expressly eschewed any consideration of "the profitability and long term prospects of such uses."

Whatever may be said about the defendant's consideration of the commercial viability of resuming a restaurant or car wash use, its consideration of the prospects for resumption of a petrol filling station use were fundamentally flawed for the reasons set out above.

It follows that this application succeeds and the planning permission must be quashed.

MR TABACHNIK: My Lord, I am very much obliged. On that basis I ask for an order in the terms your Lordship has just indicated, quashing the decision notice, and also for my costs to be assessed by way of a detailed assessment if they are not agreed.

MR PONTER: I do not resist the application for costs, my Lord.

MR JUSTICE SULLIVAN: Thank you very much. Yes, this was going to be more than a one-day case, so that is why there is no summary assessment. Very well, then the application is allowed. The defendant is to pay the claimant's costs. Those costs are to go for detailed assessment unless otherwise agreed.