Kingsley Ventures Ltd., R (on the application of) v Secretary of State for Transport, Local Government and the Regions & Anor

In a planning appeal, an inspector must apply development-plan policies according to their proper meaning and give emerging policies only the weight justified by their procedural stage. A policy requiring open spaces within housing development does not ordinarily protect existing open spaces; policies specifically directed to recreational or environmental open space must be considered instead. Private ownership and the absence of a public right of access are relevant factors, but do not by themselves remove land from the concept of open space. If an inspector relies substantially on a material issue raised through the inspector’s own questioning, fairness may require the parties to be alerted to its significance.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of its appeal against Kerrier District Council’s failure to determine an outline application for residential development at Fairfield, Redruth.

The inspector treated the site as outside the definition of previously-developed land, considered that the proposal conflicted with housing policy H2 because it would reduce existing open space, and gave significant weight to an emerging local-plan proposal favouring retention of most of the site as open space. The claimant alleged procedural unfairness, misconstruction of development-plan policies and error in the weight given to the emerging plan.

1. Claim allowed and decision quashed. The matter was remitted for fresh consideration. The claimant was awarded its full costs, subject to detailed determination if not agreed.
2. The inspector had relied substantially on an answer obtained through her own questioning about the possible acquisition of the site at residential value. The issue had not been properly presented as a live issue by the parties. Where an inspector intends to place substantial reliance on such a point, fairness requires its importance to be made clear, particularly where the evidence on it is flimsy and further evidence might materially affect the conclusion.
3. Policy H2 of the Structure Plan concerned the provision of open space within housing development. It did not require the retention of existing open spaces. The inspector’s contrary construction was an error of law. Existing recreational or environmental open space was addressed by policy SR4, whose application required consideration of the site’s recreational and environmental contribution.
4. Private ownership and the absence of a public right of access were relevant but not determinative factors. Land could fall within the broader open-space concept in PPG17 where it was in fact used for public recreation or provided amenity. The likelihood and cost of acquisition were material to the assessment of whether the proposed open-space strategy could realistically be implemented.
5. The inspector also misapplied PPG1. Although the weight given to an emerging plan is generally for the inspector, a plan at the consultation stage would ordinarily provide an insufficient basis for refusing development which accords with the adopted plan. The inspector’s conclusion that the emerging proposal deserved significant weight failed to give proper effect to that guidance.

The judgment describes an inspector’s decision dated 18 November 2002 dismissing the claimant’s planning appeal against the local authority’s failure to determine the application. No earlier court decision is stated.