Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities and Local Government & Ors [2009] EWCA Civ 333
Samuel Smith fallback position is one of the core Court of Appeal authorities behind the modern “real prospect” test for fallback development.
The judgment makes an important practical point: a fallback does not have to be probable or likely before it can matter. A genuine possibility can be enough, and the weight given to it is then a planning judgment based on the particular facts.
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- Neutral citation
- [2009] EWCA Civ 333
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 16th March 2009
- Judge
- The Master of the Rolls, Lord Justice Toulson and Lord Justice Sullivan
- Case number
- C1/2008/1550
What the Samuel Smith fallback position case concerned
The dispute concerned former colliery buildings and railway infrastructure at Gascoigne Wood Mine near Selby. UK Coal wanted to retain and reuse substantial buildings for rail-related industrial or distribution purposes.
The proposal conflicted with development-plan and national policies on employment development in the open countryside, but the Inspector and Secretary of State considered that the site’s rail connection offered potentially significant benefits.
Evidence that a suitable occupier would actually come forward was weak. A condition therefore required the retained buildings to be demolished if the rail-related use did not materialise within the specified period.
A real prospect is the opposite of a merely theoretical one
Sullivan LJ explained that a “real prospect” does not mean a fallback must be probable or likely. A possibility can suffice.
The judgment drew on Brentwood Borough Council v Secretary of State, where the contrast was between a real prospect and one which was merely theoretical. That distinction has become a standard part of modern fallback analysis.
Even an outside chance can matter
The amount of weight to give a fallback depends on the consequences if it is implemented as well as the likelihood of implementation.
The Court of Appeal gave the example of a fallback which might have only a very slight chance of occurring but would cause serious planning harm if it did. A decision-maker could rationally give that possibility significant weight. The same principle can work the other way where the fallback offers a significant planning benefit.
Fallback cases should not be forced into rigid formulas
The court warned against turning judicial wording from earlier fact-specific cases into inflexible tests. The assessment is an exercise of broad planning judgment in the circumstances of the individual case.
That approach was later developed in Gambone and Mansell.
Weak viability evidence did not make reuse impossible
Samuel Smith Old Brewery argued that refurbishment of the buildings was not commercially viable and that there was no realistic prospect of a suitable occupier.
The Inspector had taken that evidence into account. He accepted that refurbishment would be substantial and costly and that the evidence of demand was weak, but remained unconvinced that no suitable user would come forward.
The Court of Appeal held that this conclusion was open to him. A development appraisal was a snapshot based on particular assumptions and did not compel the decision-maker to find that reuse was impossible.
The five-year condition managed the uncertainty
The permission contained a condition requiring removal of buildings if they were not brought into qualifying rail-related use within five years, with removal by six years.
That condition allowed the decision-maker to keep open the possibility of securing the rail-related benefits while limiting the longer-term harm if the anticipated reuse did not occur. See our guide to fallback positions in planning for the modern practical approach.
Read the full Samuel Smith 2009 judgment
The full Court of Appeal judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
Samuel Smith Fallback Position Case Law Page Updated: 9th September 2026