Planning application – Development – Material consideration – Third respondent owning disused industrial site with railway links – Site owner applying to retain and reuse buildings for rail-related industrial uses – First respondent secretary of state granting conditional permission following inquiry – Whether inspector properly considering economic viability of proposals – Whether condition sufficiently mitigating risk of buildings remaining unoccupied – Appeal dismissed
The appellant owned a public house in the vicinity of a large defunct industrial site that belonged to the third respondent. The site was located on the Selby to Leeds railway line and had formerly been used in connection with the coal industry. The 1976 planning permission for such use had contained a condition that required the site to be restored after that use had come to an end. Coal production had ceased in 2004 and many structures on the site had been demolished. However, certain buildings, landscaping, infrastructure and railway sidings had remained. In 2005, the third respondent applied to the second respondent planning authority for planning permission to retain and reuse some of the structures, with the railways to be used as a sustainable form of transport in connection with that use.
The first respondent secretary of state called in the application. Following a public inquiry, at which the appellant challenged the economic viability of the proposals, the first respondent accepted the inspector’s recommendation to grant planning permission subject to a condition requiring the removal of the buildings in the event that they were not brought into use within five years of the grant of planning permission. The decision letter stated that although the proposals conflicted with the development plan and government policy on sustainable development, there were significant benefits in bringing a valuable asset back into use that could employ the rail connections, and that the risk of harm presented by unoccupied buildings in the open countryside would be sufficiently mitigated by the condition.
The appellant’s challenge to the grant of permission under section 288 of the Town and Country Planning Act 1990 was unsucessful: see [2008] EWHC 1313 (Admin); [2008] PLSCS 168. It appealed, contending that the first respondent had failed properly to consider the evidence supporting its proposition that it would not be economically viable to convert the structures in question and that there was no evidence of any demand for the use of those buildings. Further, it argued that her decision had been based upon speculation or the theoretical as opposed to the real prospect that a suitable occupier would be found within the specified period.
Held: The appeal was dismissed.
In the exercise of her planning judgment, the first respondent had been entitled to reach the conclusion that she had since all material circumstances had been taken into account.
The question of economic viability had not been addressed as a wholly free-standing issue but had formed part of the entire case considered together with “need” and “demand”. The inspector had clearly taken the view, as he was entitled to do, that the economic viability of the refurbishment of the buildings would depend upon the prospective user. Once he had considered economic viability on that basis, the inspector could not have been expected to reach a firm conclusion as to whether a particular refurbishment would be viable without having specific evidence before him, which was inherently unavailable.
Further, a “real” prospect of finding an appropriate occupier within five years did not have to be probable or likely, a possibility would suffice and that would depend upon an assessment of the facts of each individual case. It was not possible to constrain the exercise of a broad planning discretion by confining it within an existing judicial formulation: Brentwood Borough Council v Secretary of State for the Environment (1996) 72 P&CR 61 applied.
The inspector and the first respondent had recognised that it was uncertain whether a suitable occupier would be found, but had been entitled to conclude that they could not rule out that possibility, and that the potential benefits of refurbishing the site justified the grant of conditional planning permission.
Peter Village QC and Andrew Tabachnik (instructed by Ward Hadaway, of Newcastle-upon-Tyne) appeared for the appellant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondent did not appear and was not represented; Frances Patterson QC and John Hunter (instructed by Nabarro Nathanson, of Sheffield) appeared for the third respondent.
Eileen O’Grady, barrister
