Samuel Smith Old Brewery (Tadcaster), R (on the application of) v Selby District Council & Ors [2005] EWHC 3034 (Admin)

Case No CO/2127/05[2005] EWHC 3034 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 23 November 2005
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF SAMUEL SMITH OLD BREWERY (TADCASTER)Claimant-v-
Between
SELBY DISTRICT COUNCILDefendantPM BRADLEYInterested PartyJS ROGERSONInterested PartyBW SIPP TRUSTEES LIMITEDInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR ANDREW TABACHNIK (instructed by Pinsent Masons) appeared for CLAIMANTMR IAN PONTER (instructed by Head of Legal Services, Selby DC) appeared for DEFENDANT
J U D G M E N T

Introduction

[1]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").[2]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. Planning history[3]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.[4]Despite the claimant's objections, the defendant granted planning permission for those amended proposals on 16 April 2004. The earlier judicial review proceedings[5]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:
"(1) the Council failed to consider properly whether the proposed use would (for the purposes of paragraph 3.8(a) of PPG2) 'have a materially greater impact than the present use on the openness of the Green Belt and the purposes of including land in it'. The Council's approach was to compare the application proposals with a re-commencement of the use of the buildings as a PFS and associated cafe. The Council failed to address or consider whether it is at all realistic (as opposed to purely theoretical) that such uses would recommence, but if it took the view that this possibility was realistic, such a view was Wednesbury unreasonable. (2) The Council's assessment that the grant of planning permission for the reconstruction of a canopy of a revived PFS was 'likely, subject to an appropriate design being proposed' was wholly unjustified by any analysis and not substantiated by any assessment of whether such facilities in this location where necessary or viable. (3) The Council failed to consider whether the use of the site as a PFS and associated cafe had been abandoned and/or the Council should have concluded that such uses had been abandoned."
[6]In the consent order, the defendant accepted that the planning permission should be quashed for the reasons given in the detailed statement of grounds. Reconsideration by the defendant[7]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.[8]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:
"3.8 The re-use of buildings inside a Green Belt is not inappropriate development providing: (a) it does not have a materially greater impact than the present use on the openness of the Green Belt and the purposes of including land in it; (b) strict control is exercised over the extension of re-used buildings, and over any associated uses of land surrounding the building which might conflict with the openness of the Green Belt and the purposes of including land in it (e.g. because they involve extensive external storage, or extensive hardstanding, car parking, boundary walling or fencing); (c) the buildings are of permanent and substantial construction, and are capable of conversion without major or complete reconstruction; and (d) the form, bulk and general design of the buildings are in keeping with their surroundings2. (Conversion proposals may be more acceptable if they respect local building styles and materials, though the use of equivalent natural materials that are not local should not be ruled out)."
[9]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".[10]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".[11]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.[12]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: ABANDONMENT The issue of abandonment should be addressed having regard to the physical condition of the buildings, the period of non use, whether there has been intervening use, and evidence regarding owner's intention. Taking these matters in turn, it is recognised that petrol tanks, pump and canopy have been removed. However, the two existing buildings on the site show no physical evidence of dereliction. They have been secured from unauthorised entry. I would therefore conclude that the physical condition of the buildings does not demonstrate that the use has been abandoned. The Compulsory [Purchase] Order for land to be incorporated into the A1-M1 link was confirmed in October 2001. Following the closure of the Little Chef and BP filling station, the site was marketed in January 2002. The applicant secured ownership of the site in January 2003 and in March 2003 submitted this application to develop the site. The site has, however, remained on the market. Over half of the period of non use can now therefore be attributed to the length of time it is taking to determine this application. Again, I would conclude that this does not demonstrate abandonment. Whilst this site has been vacant for approximately 4 years, there has been no intervening use. The owner recognises the importance of the location of this site being positioned at the gateway to Selby District. He has continued to market the site since his purchase and the site is kept secure as far as possible. This can be demonstrated by the action taken to prevent further fly-tipping; a bund has been constructed across the access road thereby preventing vehicles from gaining access to the site. He also recently indicated that if the proposal to erect an MSA on adjacent land is unsuccessful, he may pursue re-opening the filling station himself, as this major junction would be devoid of re-fuelling and associated facilities (subject to the grant of consent for re-introduction of pumps, tanks and canopy). I would not therefore consider that the submission of this application is clear evidence of the owner's intention to abandon the PFS and cafe uses, as suggested by the objector. Having had regard to all of the above, I would conclude that the former uses have not been abandoned and therefore there is a lawful use of the site. RESUMPTION OF THE LAWFUL USE I am satisfied that the marketing evidence provided by Chesterton's is sufficient to show that there is interest in the site for recommencing the restaurant use. It also shows a reasonable interest in recommencing the car wash facility. In forming those views, I have taken on board [the claimant's] concern that the 'depth of enquiries' is not revealed by the applicant's information. [The claimant] also claims that the resumption of use of a car wash facility as a primary use would require planning permission. The analysis above in 'Abandonment' concludes that the lawful use of the site has been not abandoned. 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. What is apparent is that the existing car wash building is an integral part of the PFS building and the reinstatement of machinery within this building would not require permission. The profitability and long term prospects of such uses, if recommenced, are not material planning considerations. With regards to the petrol filling station ("PFS") use recommencing, notwithstanding the absence of enquiries for such a use during Chesterton's marketing of the site, the applicant has informed the Council that such a 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). In those circumstances, I am satisfied that there is a reasonable prospect of the use of the site for PFS, A3 and car wash resuming. Access to the site is no longer taken directly from the A64. The changes to the A1/A64 intersection included the provision of a service road that caters for this site and adjacent agricultural land. As this service road was constructed by contractors working for the Highways Agency it meets normal standards in terms of carriageway width and construction and visibility splays. Originally access to the site was via a limited length of slip road direct off the A64. The new service road provides a far higher standard of access to the site. Traffic speeds and volume in proximity to the site are considerably less following the changes to the intersection. This would lead me to believe that the access arrangements are sufficient to allow the lawful use to resume without hindrance. The probability of the resumption of the former uses has therefore been considered and I would conclude, based on this analysis, that there is a reasonable prospect of that resumption."[13]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". Submissions and conclusions[14]Although his submissions were developed in a number of different ways, Mr Tabachnik's overarching submissions on behalf of the claimant were:(1) That the use of the site for petrol filling station purposes had been abandoned, not least because the defendant accepted that it would be necessary to obtain planning permission to reinstate the petrol storage tanks, pumps and canopy, and "it is impossible to see how use has not been abandoned where the physical condition of the site is such that a planning permission is required to reinstate the use in question".(2) That, in any event, there was no evidence on which the defendant could reasonably have concluded that resuming the petrol filling station use would be commercially viable, not least because of the amended access arrangements, which would involve motorists travelling westwards along the A64 having to make a lengthy detour if they wished to obtain petrol, and then continue their journey to the west.[15]In his skeleton argument, on behalf of the defendant, Mr Ponter submitted that:
"The question of whether or not planning permission is required for the reinstatement of tanks, pumps and canopy is not relevant to the issue of abandonment. The four factors relevant to an assessment of that issue (set out in the officer's report and accepted as correct by the claimant) are the physical condition of the buildings, the period of non-use, any intervening use, and owner's intention. They do not include a test of whether or not planning permission would be required for some operational development in order to facilitate the resumption of a lawful use."
[16]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).[17]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.[18]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:
"The question in all such cases is simply this: Has the cessation of use (followed by non-use) been merely temporary, or did it amount to an abandonment? If it was merely temporary, the previous use can be resumed without planning permission being obtained. If it amounted to abandonment, it cannot be resumed unless planning permission is obtained ... Abandonment depends on the circumstances. If the land has remained unused for a considerable time, in such circumstances that a reasonable man might conclude that the previous use had been abandoned, then the tribunal may hold it to have been abandoned [cited by Kennedy LJ at p.400 of the Hughes case]."
[19]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.[20]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:
"A further argument advanced in the Committee Report is that the Officer regards it as 'likely' that planning permission would be granted for the reinstatement of the PFS canopy. Not only does the report fail to advise that planning permission would also be required for the reinstatement of the petrol pumps, but also that making such a statement constitutes a prejudgment of the planning process. This is entirely improper; particularly as such a development proposal would be inappropriate development in the Green Belt and therefore contrary to the development plan and Government advice in the form of PPG2 and would likely be unjustifiable..."
[21]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".[22]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)".[23]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:
"We have attracted a wide variety of potential users for this site and broad headings, categorising these enquiries, are listed below, together with the number of enquiries in each category."
Fourteen categories are set out. They include:
"iv. Car wash outlet - 3 vii. Indian restaurant - 2 ix. Various drive-thru/restaurant enquiries - 9."
The letter continued said that copies of the letter sent to those who had expressed an interest could be provided, but Chesterton's were concerned that many enquiries were often confidential and enquirers were reluctant to be named. The letter said by way of conclusion:
"As you will see the general levels of interest for this site have been very varied and many of them hail back to the previous retail/restaurant nature of the site. In many of the above categories we have received a number of enquiries and it is clear, if we re-marketed, that the Restaurant use, for example, would attract substantially more enquiries."
It will be noted that none of the enquiries was for a petrol filling station use.[24]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:
"Furthermore reference is made to the site reverting to its existing lawful use and being re-opened as a restaurant and petrol filling station. It is my understanding that the main reason for the restaurant and petrol filling station closure was due to the inadequate access and egress arrangements to the A64 in relation to the re-aligned A64/A1(M) junction at Bramham Crossroads. The A64 is now provide with roadside facilities at Bilbrough where fuel, refreshment and accommodation are provided on both east and westbound carriageways. There is therefore no need or justification for roadside facilities on this site any more."
[25]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).[26]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.[27]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.[28]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?[29]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.[30]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.[31]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." Conclusion[32]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.[33]It follows that this application succeeds and the planning permission must be quashed.[34]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.[35]MR PONTER: I do not resist the application for costs, my Lord.[36]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.