Jenkins v Welsh Assembly Government

On a renewed application for permission to appeal, a point of law is realistically arguable where an inspector identifies a material planning conflict but does not explain why it may be left to compensation or later management. Compensation may address measurable loss to a holding, but it does not necessarily answer the wider planning issue of managing competing users. Permission should be confined to that arguable issue where the other grounds disclose no error of law. Granting permission does not indicate that the appeal will ultimately succeed.

Mr Jenkins challenged the confirmation of a public footpath forming part of the Ceredigion Coastal Path. Following a three-day inquiry, an inspector appointed by the Welsh Office recommended confirmation in March 2007. His decision was upheld by HHJ Curran QC, sitting as a Deputy Judge of the High Court. Dyson LJ refused permission to appeal on the papers. On renewal, the Court of Appeal considered alleged errors concerning cliff safety, the effect on the business, and parking and access. The central issue was whether the inspector had adequately addressed the wider planning consequences of parking problems, rather than treating them solely as a matter of compensation.

Application granted in part. Permission to appeal was granted out of time on the parking issue only. The court did not determine the eventual merits.

1. The safety ground disclosed no error of law. The inspector had addressed the potential risks from cliff erosion and was entitled to take account of the council’s experience of similar parts of the path.
2. The business ground also disclosed no error of law. The inspector had considered the importance of the coastal views and was entitled to give weight to the absence of independent supporting evidence and to the applicant’s refusal of a free market analysis.
3. The parking ground was realistically arguable. The inspector had accepted a serious risk that visitors would park on narrow roads and obstruct access. He had also recognised that the absence of parking facilities might jeopardise the integrity of the Farm Park and adversely affect its operation. Those matters raised a wider planning issue concerning the practical management of path users and paying visitors.
4. The inspector’s reasoning did not adequately explain why that conflict could be left to compensation. Compensation was a relevant consideration for measurable loss to the holding, but it did not necessarily address a threat to the Farm Park’s future or the need to manage the conflict before the path was approved.
5. The permission-stage question was whether there was a realistically arguable point of law. The court expressed no view on whether the applicant would succeed in the appeal or ultimately prevent creation of the footpath.

Permission was therefore granted on the parking issue only, with the order recording that the application was granted in part.

Procedural history

1. Inspector: After a three-day inquiry, an inspector appointed by the Welsh Office recommended confirmation of the public footpath in March 2007.
2. High Court: HHJ Curran QC, sitting as a Deputy Judge of the Queen’s Bench Division, upheld the inspector’s decision.
3. Court of Appeal: Dyson LJ refused permission on the papers. On renewal, Lord Justice Carnwath granted permission out of time on the parking issue only in [2009] EWCA Civ 1281.