Mr Justice Cranston:
Introductory
- In straightforward terms this application raises what must be a not unfamiliar problem. A relatively large industrial site becomes defunct. The Claimant, for one, wants it demolished now: it is a blot on the landscape and in breach of planning policies. Its owners have proposed an alternative and what they say is attractive use. The Claimant says that this alternative use is a delusion: given the cost of conversion and the potential demand it is not economically viable. The local planning authority, a planning inspector and ultimately the Secretary of State think that there is something in it and that, at least for the time being, it should remain and the alternative use attempted. The matter now comes to this Court, acting as a longstop in planning matters. The Claimant seeks to quash the Secretary of State's decision to grant the planning application for the alternative use.
Background
- The present proceedings are brought by Samuel Smith Old Brewery (Tadcaster) ("the Claimant"), a local landowner and employer with a longstanding interest in the correct application of planning policy in the Selby district. Its nearest public house to the Gascoigne Wood Mine site is in Sherburn in Elmet. It was accepted that the Claimant is an "aggrieved person" able to make this application under section 288 of the Town and Country Planning Act 1990.
- The Gascoigne Wood Mine site was developed in the 1980s to receive coal from underground mines working the Barnsley seam, to prepare it for market and dispatch it on the railways. Originally mainly farmland, the site covers some 67 hectares near Sherburn in Elmet, about 3km away. The Selby to Leeds railway line runs through the site which is surrounded by landscaping bunds, planted with a mix of deciduous and evergreen trees. There are a range of railway sidings of almost 13km in length over which rapid loading bunkers were used to load the coal. The original planning permission in 1976 to develop the site was subject to a "restoration condition" which states:
"On or before the expiration of a period of 12 months from the last date on which the Barnsley Seam is worked (pursuant to this permission) for the purposes of getting coal, old buildings, plant and machinery will be removed from the Gascoigne Wood and Wistow sites unless otherwise agreed in writing by the County planning authority or, in default of agreement, determined by the Secretary of State; and those sites shall be restored to their former condition or otherwise treated in accordance with such scheme or schemes as may be agreed with the County planning authority, or in default of agreement, as shall be determined by the Secretary of State."
Coal production ceased in October 2004. Many of the mine buildings, gantries and other items of plant have been demolished.
- The site is owned by UK Coal Ltd ("UK Coal"), the third Defendant in this action. In 2005 it made a planning application for the retention and reuse of certain buildings, landscaping, infrastructure and rail sidings at the site. In particular, it proposed to retain and reuse four structures as part of the planning application. One is an amenity block, another is a workshop, the third, stores, and then the largest, a covered stockyard, occupying some 19,510 square meters. In broad terms the application is now to use a method of sustainable transport, namely the railways, with the buildings being tied to that rail use. It is fair to say that the use of the buildings as an integral part of the proposed sustainable use came very late in the day and until then some of them were to operate as freestanding units.
- UK Coal's planning application was called in by the first Defendant, the Secretary of State for Communities and Local Government (the "Secretary of State") under section 77 of the Town and Country Planning Act on the grounds "that the proposal may conflict with national policies on important matters".
- On 5 July 2005 an Inspector, Andrew Phillipson, was appointed and he conducted an inquiry beginning in early March 2007 and running for 6 days. UK Coal called a number of witnesses, and its application was supported by the local planning authority, the second Defendant in the current action, Selby District Council ("the Council"). The Council played no part in the present proceedings. The Claimant in the present action also called a range of experts in transport, railways and planning. The evidence of one of the experts, a chartered surveyor, features further below.
- The Inspector reported in early May 2007 and recommended that planning permission be granted, subject to a number of conditions. In his overall conclusion he said that the proposal would conflict with the development plan and government policy, in that a new employment use would be created in the open countryside on a site which could be effectively reached only by the use of private vehicles. The conflict arose because one of the planks of sustainable development seeks to concentrate employment within urban areas or areas served by good quality public transport. Notwithstanding that, the existing railway infrastructure on the site would accord with the principles of sustainable development, as would the proposal to retain and convert the existing infrastructure.
"[T]he existing railway infrastructure on the site is widely recognised as valuable and bringing the site back into use for industrial distribution uses that make use of the rail connections would foster the movement of goods by more sustainable means, including rail".
The Inspector saw the tension between these two strands of policy as the key consideration. Other material considerations included the expectations generated by the restoration condition from 1976, the bunds screening the site, and the adequacy of highway links to the site. The real possibility that a user would not be found for the site, and the consequent harm caused by leaving unoccupied buildings in the open countryside, would be limited by one of the proposed conditions, Condition 7, which after redrafting eventually read:
"In the event that any retained building is not used wholly or mainly for rail related uses by occupiers using the existing rail facilities on site and their mainline connections within 5 years from the date of this permission, it shall be demolished and removed from site no later than 6 years from the date of this permission and the site shall be restored and landscaped in accordance with a scheme (which shall include a timetable for implementation and management measures) first submitted to and approved in writing by the local planning authority."
Overall, as to balance, the Inspector's view was that having regard to the safeguards provided by the conditions the proposal should succeed. Should, however, the Secretary of State disagree with the Inspector's conclusions on the effectiveness and enforceability of the conditions, in particular Condition 7, then he would recommend that planning permission be refused.
- The Secretary of State issued her decision on 13 August 2007. In her decision letter she agreed with the Inspector's conclusions, except where indicated, and with his recommendations. After outlining the components of the development plan and various planning policies, she concluded that the proposal was not in accordance with the development plan as a whole (paragraph 13). The site was within the countryside and development for employment purposes would conflict with relevant policies seeking to direct that to urban areas or urban extensions and nodes in good quality transport corridors. There was also no shortage of employment land available in Selby district or Sherburn in Elmet. Notwithstanding the proposal's fit with other policies such as regional regeneration, encouraging the repair and maintenance of existing development, and promoting distribution of freight by more sustainable means such as rail, overall it was not in accordance with the development plan as a whole.
- Since the Secretary of State concluded that the proposal was contrary to the development plan taken as a whole, she then went on to consider whether there were any material considerations of sufficient weight to determine the matter other than in accordance with the development plan. First, she considered the so-called "fallback". Despite the restoration condition from 1976, there was no realistic prospect of the site being returned to its former condition, even if that were desirable given the value of the screening bunds and associated planting. Secondly, she agreed with the Inspector that it was wrong to regard the site as comprising previously developed land in the same way as a former industrial site; pragmatically, the site could be regarded as previously developed in part and in that event whether or not the site was previously developed was not determinative. Thirdly, she gave very little weight to the existence of the buildings on the site: in terms of the 1976 condition they should have been removed, but one of the principles of sustainable development is to make continuing effective use of what already exists. Fourthly, the Secretary of State considered "Need and Demand", an aspect central to the present proceedings. For this reason this part of the decision letter needs to be set out in full.
"18. For the reasons set out in IR [Inspector's Report] 10.29 to IR 10.33 the Secretary of State agrees with the Inspector that the evidence of need for the buildings on the site is weak but, notwithstanding this, the potential of the site affords for rail link development as being widely recognised (IR 10.33). The Secretary of State agrees with the Inspector in IR 10.34 that rail link sites of the quality that Gascoigne Wood of course offers are rare and whilst the market for them is limited, the Gascoigne Wood site has significant potential to support rail link manufacture and/or distribution. Overall the Secretary of State agrees with the Inspector that although a user who would be able to put the rail infrastructure to beneficial use together with the buildings may not be found quickly, she is not convinced that no suitable user would be forthcoming, and agrees with the Inspector that the buildings also have the potential to be adapted to a variety of uses (IR 10.34)."
Various other material considerations were addressed in the Secretary of State's decision letter such as rail access, sustainability and highway matters. The Secretary of State then agreed with the conditions proposed by the Inspector. Proposed condition 7 was highlighted and the Secretary of State said that she was satisfied that it would achieve the stated aim of bringing the buildings into use within a defined period.
- In her overall conclusions, the Secretary of State said that the proposal would conflict with the development plan and government policy relating to the location of employment uses and accessibility and therefore she found that it was not sustainable. Going on to consider other material considerations she said that there were other factors making a contribution to the principles of sustainable development. In particular she said:
"The proposal gains support from reusing a valuable asset in the form of the existing railway structure on the site, and there are significant benefits in bringing the site back into use for industrial or distribution uses that can make use of the rail connections and therefore foster the movement of goods by more sustainable means." (paragraph 25)
The risk of harm caused by leaving unoccupied buildings in the open countryside would be sufficiently mitigated by the imposition of Condition 7, requiring their removal in the event that they were not brought into use within 5 years of the date of granting planning permission (paragraph 26). Accordingly planning permission should be granted, she concluded, since the benefits identified outweighed the conflict with the development plan and national policy.
- The Claimant contends that the decision of the Secretary of State to grant planning permission is flawed on three main grounds. First, it is said that the Secretary of State failed to consider properly the Claimant's evidence that it would not be financially viable to convert the buildings. Had the Secretary of State grappled with the evidence it would have been apparent that such lack of financial viability demonstrated that there was no reasonable prospect of the buildings or any of them being reused for rail related purposes. Further, the Secretary of State failed to give proper, adequate and intelligible reasons for ignoring the Claimant's evidence on financial viability or for rejecting it (if in fact she did so). Secondly, the Claimant contends that there was no evidence before the Secretary of State of any demand for use of the buildings, notwithstanding that it was accepted that their availability was widely known by property consultants in the area. Therefore there was no evidence upon which the Secretary of State could lawfully have come to any conclusion other than that there was no reasonable prospect of the buildings being reused for rail related purposes. Had the Secretary of State reached that conclusion, it is self-evident that as far as the buildings were concerned there would have been no material considerations capable of outweighing the conflict with the development plan. The third ground of attack advanced by the Claimant is that condition 7 is manifestly deficient, does not comply with the Secretary of State's own policy on the imposition of conditions, and fails to address the legitimate planning concerns raised by the Claimant. Putting it bluntly, the Claimant says that condition 7 will make Gascoigne Wood a byword for planning abuse. When the flaws in condition 7 are appreciated, the Secretary of State's conclusion that the planning harm from retaining the buildings will be sufficiently mitigated is wholly undermined.
Applicable Legal Principles
- Save in one respect the applicable legal principles in this case are not in dispute; it is their application which is vigorously contested. (There is one caveat on this, that the Claimant reserves the right to challenge before the appropriate court the reasoning in R v Leominster District Council ex parte Pothecary [1998] JPL 335 as to the weight to be attached to the buildings which in this case exist in breach of the 1976 condition. The Claimant contends that the correct approach is that such buildings should be treated as if they were not in existence, for to do otherwise would be, in effect, to reward the commission of a wrong). Central is section 38(6) of the Planning and Compulsory Purchase Act 2004, which sets out the methodology for a decision maker where the development plan is applicable but there may be material considerations on the other side. Section 38(6) reads as follows:
"If regard is to be had to the development plan for the purposes of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
The weight to be attributed to any of these material considerations is a matter entirely for the planning authority: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 F-G, 784 C-D.
- Various subsidiary legal issues arise. In relation to the first ground of attack, financial viability, there is no disagreement that in this case had the Secretary of State failed to take this into account in her reasons her decision would have been flawed: R (Samuel Smith Old Brewery (Tadcaster)) v Selby District Council [2006] EWHC 3034; [2006] JPL 1163. Rather, the issue is whether the Secretary of State properly did so in her decision. In approaching a matter like this the law adopts an intensely pragmatic approach. It is encapsulated in a well known passage in the speech of Lord Brown of Eaton-Under-Heywood in South Buckinghamshire District Council v Porter [2004] UKHL 33 (No2) [2004] 1 WLR 1953, [36]:
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principle important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the granted permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that there are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
So in considering the matter the approach must be to recognise that the decision letter of the Secretary of State is at the end of a process. It assumes a range of previous material primarily, but not only, the Inspector's report. The Secretary of State's reasoning must be clear and understandable but there is no need for the text to be exhaustive. It is not a tick box exercise but whether the conspectus of matters in section 38(6) has been properly approached. Much will depend on what falls to be determined. Overall, the aggrieved party must, as Lord Brown of Eaton-Under-Heywood said, satisfy the court that there is substantial prejudice by the failure to provide an adequately reasoned decision.
- As to the Claimant's second ground, the lack of need for the buildings, there is disagreement as to the test to be applied. The Claimant's contention is that the question which the Secretary of State should have asked herself was whether, on the balance of probabilities, a suitable use would be found within the relevant period, in this case the 5 year period laid down in condition 7. The justification for this is based on the requirement in the planning system for firm evidence for decision making. It is well established, says the Claimant, that evidence of marketing is required to demonstrate that there is no demand for use A in circumstances where a change of use is sought for use B. Thus the planning system expects landowners to undertake a marketing exercise in respect of a use which they have no desire to see implemented. A fortiori, where the landowner's case is that it wishes to use the land for the purpose for which it is being marketed, need must be demonstrated.
- The Claimant found support for its approach in Brentwood Borough Council v Secretary of State for the Environment and Gray (1996) 72 P & CR 61. That was a case where the Grays had built an outbuilding in the green belt and planning permission was refused. The Inspector then granted planning permission. If the Grays had built the outbuilding a little further away that would have been permitted development. One of the issues was whether there was a real prospect of the Grays demolishing the out building and rebuilding it so it was permitted development. If so the inspector's decision to grant planning permission would be difficult to impugn. It was held that the inspector had failed to make that finding – whether there was a real, rather than a merely theoretical, prospect of implementing the fall-back. However, the approach in Brentwood is not transferable to the present case. So it is not a question of whether there is a real prospect of UK Coal's proposal for a rail linked development coming to fruition. The Brentwood test is in a quite different context, the prospects of the applicant implementing a compliant fall-back. It is designed to make it easier for applicants. Here the fall-back, restoration to farm land, is not on the agenda and the test must be different.
- In my judgment the question which the Claimant posits for the Secretary of State to answer is incorrect. The Secretary of State did not have to ask whether, on the balance of probabilities, a suitable user would be forthcoming within the specified period, and if not so satisfied was obliged to refuse the planning application. That submission ignores the approach mandated by the statutory language of section 38(6), that a determination must be made in accordance with the development plan, unless material considerations indicate otherwise. All material considerations are to be weighed in the balance, although as indicated already the weight to be given to each is a matter for the planning authority. No one material consideration is privileged so that it becomes, in effect, a necessary pre-condition to the grant of planning permission. It is not the law that, however compelling other material considerations are, unless one material consideration can be positively demonstrated a planning application contrary to the development plan must be refused.
- The third issue concerns whether condition 7 fails because it is "unfit for purpose". One aspect is whether the condition is contrary to the policy set out in circular 11/95, "The Use of Conditions in Planning Permission". Amongst other things, paragraph 17 of the circular provides that conditions should be tailored to tackle specific problems, paragraph 30 provides that the framing of conditions requires care not least to ensure that a condition is enforceable, and paragraph 34 and the following paragraphs suggests that a condition will be unreasonable if it is manifestly deficient or does not achieve its stated purpose. Another aspect is whether Condition 7 fails the test of lawfulness in that no reasonable planning authority would impose it because it is a condition which would not achieve its intended aim: Newbury District Council v The Secretary of State for the Environment [1981] AC 578.
The Claimant's Grounds
Ground 1: failure to consider the evidence on financial viability.
- The Claimant's case is that the Secretary of State failed to consider that the planning proposal lacked financial viability and its evidence on this was completely ignored. Thus the Secretary of State acted unreasonably, in the legal sense of that concept, because it failed to take into account a material consideration, squarely raised, which went to the heart of an examination of the need to retain the buildings. As it transpired, the Secretary of State failed to give weight to a material consideration for the purposes of outweighing the clear conflict with the development plan. Moreover, the Secretary of State manifestly failed to give proper, adequate or intelligible reasons for ignoring the issue of viability or rejecting the Claimant's evidence on financial viability. The Claimant, it is said, is at a loss to know whether the question of viability was a consideration to which the Secretary of State actually had regard and its interests are therefore substantially prejudiced. On the Claimant's own case, ground 1 overlaps with ground 2 on the absence of need. That is not surprising since need, or its absence, go to financial viability.
- The Claimant's expert, Mr Jonathan Turner, a consultant chartered surveyor, reported that the cost of refurbishment of the existing premises on site as against the value of a completed scheme would prove uneconomical. The covered stockyard was suited only to logistics operations but was unlikely ever to suit such use, not least because there was no floor and no dock loaders. Mr Turner produced a development appraisal as an annex to his report, using standard software, with a revenue figure of some £11 million against costs of £23 million, producing a negative profit to cost ratio of some 52%. The viability assessment, in the Claimant's closing submissions to the Inspector, demonstrated that there was no likelihood whatsoever of the application being implemented from a commercial point of view and in its view served to confirm a concern that this was a Trojan horse proposal with a view ultimately to implementing a business park.
- The Claimant was highly critical of the development appraisal produced by Mr Murray Lloyd for UK Coal. It was produced late, it was inadequate in its analysis and there were discrepancies between the appraisal produced before the inquiry and the later, more detailed, written work. (Both, however, produced positive figures). In its final submissions to the Inspector UK Coal criticised some of the Turner analysis but its main contention was that through its development arm it had appraised the proposals and was happy to proceed. It was a commercial decision which was its right to take, and as it was a developer that was its prerogative. Thus, in its submission the viability appraisal carried out by Mr Turner, and the rough exercise which Mr Lloyd agreed to produce, were of no relevance to the eventual decision to be taken.
- The Inspector summarised the different submissions of the Claimant and UK Coal. In the chapter devoted to the former there is a heading "viability" and the material runs to over two pages (paragraphs 8.70 to 8.82). The Claimant has accepted this as a fair summary of its submissions. In his conclusions in chapter 10 of the report, the Inspector mentions viability under the head of "need and demand". The Claimant accepted that viability and demand overlap, since demand clearly feeds into the economic equation. In paragraph 10.32 the Inspector considers that the UK Coal case on need and demand was further undermined by the evidence about the viability of the proposals. While accepting that it was UK Coal's prerogative, as a developer, to decide the issue of viability – here he referred back to UK Coal's submissions, referred to earlier – there was no doubt in his mind that the works required to bring the covered stockyard building into beneficial use would be substantial and costly. He cross-referred at this point to the section headed "viability", referred to earlier, where he had summarised the Claimant's submissions. In paragraph 10.34, the Inspector completes his consideration of need and demand in these terms:
"10.34 Overall, however, I am still not convinced that, if planning permission for the proposal were granted, a user would be quickly found … who would be able to put the rail infrastructure to beneficial use together with the buildings. At the same time I am far from convinced that no suitable user would be forthcoming. Rail link sites of the quality that Gascoigne Wood offers are undoubtedly rare and, whilst the market for them is limited, there is no doubt in my mind, that the Gascoigne Wood site has significant potential to support rail linked manufacture and/or distribution. The buildings also have potential to be adapted to a variety of uses, albeit that the economics of so doing would need to be carefully considered having regard to the precise requirements of the prospective user."
- Like the Inspector, the Secretary of State does not have a specific heading on viability, but there is a heading in her decision letter "need and demand", quoted earlier. She refers to the reasons set out in the Inspector's conclusions on this topic, agreeing with him that evidence of need for the buildings on the site is weak but she continues that, notwithstanding this, the potential that the site affords for rail link development has been widely recognised. She agrees with the Inspector in his paragraph 10.34 that rail link sites of the quality that Gascoigne Wood offers are rare but in the passage quoted earlier concludes it has significant potential.
- There is no doubt that the Claimant raised a crucial issue through the Turner evidence on financial viability. It may well be, as the Claimant contends, that UK Coal's late acceptance of the need to tie the buildings to the use of rail related purposes was a product of this evidence. Given the limited demand for industrial properties in the area, and the significant supply of better sites, there is clearly a dark cloud over the financial viability of the proposed development. The Claimant's attack makes a great deal of sense but I am not persuaded that it provides the legal basis to quash the Secretary of State's decision to grant planning permission. First, I do not accept that viability is, as the Claimant submits, "completely ignored". It should not be forgotten that, as the Claimant conceded, demand is part of financial viability. Need and demand are addressed by the Secretary of State in paragraph 18 of her letter – a material consideration she considers – where she agrees that as far as the buildings are concerned the evidence is weak. It is also an economic truism that production itself can create its own demand. It is against this background that the Secretary of State's discussion of the potential of Gascoigne Wood as a rail linked site should be viewed: as she puts it the market for such sites is limited, a user may not be found quickly, but there is potential and a suitable user may be forthcoming.
- The Claimant says that the Secretary of State omits the cost side of the financial viability equation, altogether fails intelligibly to address the issue, and leaves the Claimant in the dark whether it was a consideration to which the Secretary of State actually had regard. Again I am not persuaded. The Secretary of State's consideration of the matter is, as indicated earlier, the end of the process. Even without her reference to specific paragraphs of the Inspector's report, and the formal agreement with his report except where stated (paragraph 3 of her letter), it would be unrealistic to dissociate her decision letter from what preceded it. The contours of the Inspector's discussion have already been mentioned: the summary of the Claimant's evidence and submissions on viability and the Inspector's conclusions on viability in paragraphs 10.32 and 10.34 of his report. In both places, the cost side of the financial viability equation is considered – the costly nature of bringing the stockyard building into beneficial use and the need for careful consideration of the economics of adapting the buildings to different use. While at first blush the Inspector's acceptance of UK Coal's submission that viability is essentially a matter for it is surprising, coupled with other passages in the report there can be no substantial doubt that financial viability was featuring as a material consideration and that consideration of it, a basis of the reasoning. That reasoning is reinforced in the discussion on condition 7, shortly to be considered. My view, therefore, is that the Claimant has not demonstrated that it is genuinely and substantially prejudiced by the failure to provide an adequately reasoned decision in respect of financial viability. Nor for sake of completeness can I conclude that the Claimant has scaled the high hurdle of a legally irrational challenge. It cannot be said that no reasonable decision maker would grant planning permission, in the light of the conclusion on financial viability, given the various other material considerations weighed in the balance, not least the rare quality of Gascoigne Wood as a rail related site.
Ground 2: no evidence of need for the buildings
- As explained earlier, it is not the law that the Secretary of State had to ask herself whether, on the balance of probabilities, a suitable user for the site would appear within the period specified in condition 7. Instead, the Secretary of State had to consider all material considerations, including the probability of finding a suitable user and, as a matter of judgment, decide whether these were compelling so as not to decide the planning application in accordance with the development plan. Once that is appreciated, the Claimant's attack under this head falters. All along the Claimant has professed that there is no evidence of any demand for use of the buildings, indeed no reasonable prospect of the buildings being used for rail related purposes. In its submission, the evidence was all the other way. In paragraph 10.30 of his report, the Inspector says that the Lloyd evidence was undermined by the letters purporting to show a demand for the site, but in fact only demonstrating a demand for the rail sidings. The Inspector notes that the only demand as such for the buildings was from a scrap merchant, and an inter-modal terminal operator who ultimately only sought space within the main office block suitable for three persons, with further locker space and washing facilities for ten. Plainly, as the Inspector noted, this was not significant having regard to the scale of the buildings. Although not formally marketed, the existence of the site was widely known.
- Enough has been quoted from both the Secretary of State's decision letter and the Inspector's report to demonstrate that the Secretary of State had regard to the issue. In essence she accepted the evidence that need for the buildings on the site was weak, and that even as a rail link development a user might not be forthcoming quickly. However, the evidence which swung the other way was that it was a site of rare quality, which had significant potential and that, although the market for such sites was limited, a suitable user may emerge. That finding was open to the Secretary of State, as also was the finding that the retention of the buildings, linked with rail use and subject to condition 7, was also justified.
- Coupled with the Claimant's lack of demand attack is the suggestion that the Secretary of State was misdirecting herself in the passage already quoted from the decision letter, paragraph 18, which concludes that "she is not convinced that no suitable user would be found quickly". In expressing herself in this manner, it is said that the Secretary of State was asking herself the wrong question and was therefore taking into account an irrelevant consideration: she was requiring evidence to be convinced that no suitable user would be forthcoming within the 5 year period. The language here is unfortunate but is understandable in context. It reflects, indeed expressly refers to, the first two sentences in paragraph 10.34 of the Inspector's report, set out above. It is clear from this paragraph that the Inspector is not convinced by either proposition – UK Coal's, that a user would be quickly forthcoming – or that of the Claimant – that no suitable user would be forthcoming at all. The Inspector was uncertain, which explains his recommendation of condition 7. The Secretary of State then echoes his approach, albeit that she does not track his language precisely, omitting the "convinced" analysis of the optimistic, UK Coal's, view about finding a user quickly. Read against that background, the reasons for the Secretary of State's decision are intelligible and adequate and disclose how she resolved the matter. Like the Inspector she was not persuaded by either the optimistic or pessimistic view. There was an uncertainty and thus she, too, saw the necessity for condition 7. That condition is there precisely because of the uncertainty as to whether a user will be found within the 5 year period. That brings us conveniently to the Claimant's third ground of attack.
Ground 3: the inadequacy of condition 7.
- The Claimant's attack on the lawfulness of condition 7 is based, in effect, on the proposition that the condition is unreasonable or irrational since it will not achieve its intended aim. That is because there is no provision as to the period of time for which the use that would remove the risk of demolition must take place. Thus, in the Claimant's submission, it would be possible for UK Coal, or any future landowner if the land is sold, to find a rail related occupier prepared to let and use the premises for a very short period of time, anything more than a de minimus period, and at a peppercorn rent or, indeed, receiving inducements from UK Coal for doing so. That would remove the prospect of the buildings being demolished at the end of the five year period, which underlines the deficiency in the condition which merely requires use "within 5 years from the date of this permission".
- The Inspector's conclusion was that, in the absence of conditions, including condition 7, planning permission should be refused. That was because, as he sets out in paragraph 10.10 of his report, the buildings are large and their retention for general employment purposes would fly in the face of planning policy at all levels, for reasons already summarised. Moreover, the buildings were still there, despite the 1976 restoration condition, and there was a real possibility that occupiers would not be found for all or some of them in the future. To permit them to remain indefinitely in such circumstances would be harmful, in particular because it would seriously undermine the use of restoration conditions. Then in his conclusions the Inspector returns to the rationale of condition 7, which is to secure the removal of any retained buildings not brought into rail related use within 5 years of the grant of planning permission. The wording of the condition is clear. The obligation to demolish is triggered in the event of the buildings not being used wholly or mainly for rail related purposes by occupiers using the rail facilities and the mainline connections.
- As to the Claimant's suggestion that condition 7 would not achieve this aim, because a short term let might circumvent it, the Inspector said:
"… I tend to agree with UK Coal that such a device would not comply with the terms of the condition which require the buildings to be used "wholly or mainly" for rail related uses [6.113]. In any event, given the expenditure that all are agreed would be required to bring the covered stockyard into beneficial use [8.70 et sec] the possibility of anyone making use of that building on a short term basis appears remote." (10.50(4))
- The Claimant is correct in its submission that the Inspector's reasoning is deficient in as much as he opines that a short term let would not constitute using the buildings wholly or mainly for rail related purposes. That does not follow at all. But the second justification he provided is sufficient – given the significant expenditure necessary for rail related use, the possibility of an occupant on a short term basis is remote. The Claimant also contends that evasion is possible through UK Coal or a subsequent landowner funding use so as to secure permanent retention of the buildings. The Inspector's reasoning stills stands: it would not make sense for any owner of the site to incur the expense of upgrading it and then offering it for a short term let at a peppercorn rent. Thus the Inspector was entitled to conclude that condition 7 would not be subverted in the manner advanced. Equally, it cannot be said that the Secretary of State was acting unreasonably, in a legal sense, in agreeing with the Inspector that the condition was reasonable and necessary, in being satisfied that it would achieve its stated purpose, and in concluding that the risk of harm caused by leaving unoccupied buildings in the open countryside would be sufficiently mitigated by the imposition of the condition (paragraphs 23, 26). The condition meets both the requirements of Circular 11/95 and of public law.
Conclusion
- In plain terms, the Secretary of State has been persuaded that Gascoigne Wood is a niche site, a rail linked site with the potential to support manufacturing, distribution or both. That, in the balance with other material considerations, has led to her decision not to apply the development plan. There is no basis to quash her decision. That does not mean that the Claimant's efforts have been in vain. Despite preliminary indications by the Inspector that viability evidence was not relevant, the Claimant has been able to place the viability of the site on the agenda. Moreover, what is now condition 7 was during this inquiry tightened. The Claimant is still concerned that the application is a mirage and that the buildings will survive, even if the site is not used for rail linked manufacture or distribution. But condition 7 is enforceable, and the planning authority can take action were a building not used as permitted within the 5 year period. Were the Claimant to be dissatisfied with any lack of action on the part of the planning authority, its experience in such matters means that it, too, knows what course it may take.
