Waterstone Estates Ltd v Welsh Ministers

On a statutory review of a planning inspector’s decision, the court must read the decision fairly, flexibly and as a whole. It must not subject individual words or sentences to minute textual analysis. The interpretation of planning policy is a question of law, but applying policy and weighing competing considerations are matters of planning judgment for the inspector, reviewable only for legal error, irrationality or perversity. Under the Welsh planning framework, an identified retail need may be met by an allocated and sequentially preferable site without establishing that the site is suitable for the particular specialist development proposed. A development outside settlement limits falls within an exception to the relevant policy only if all elements of that exception are satisfied. The application was dismissed.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, two decisions by an inspector dismissing appeals against refusal of planning permission by Neath Port Talbot County Borough Council. The proposals were a roadside service area, including a petrol filling station and drive-through coffee shop, and an outline pub or restaurant scheme at land outside Glynneath’s settlement limits.

The challenge alleged irrationality, procedural unfairness, misinterpretation of retail policy, and misdirection concerning the infrastructure exception in Policy SC1 of the Local Development Plan. The central questions were whether the inspector had misunderstood the retail need and sequential approach, whether the parties had been denied a fair opportunity to address her reasoning, and whether the proposals fell within the policy exception for development associated with infrastructure.

1. Approach to review. Planning decision letters must be read in a straightforward and reasonably flexible way, as a whole and in context. They are not to be analysed as statutes, legal precedents or examination papers. The court should identify what the inspector decided before considering whether the decision was irrational, procedurally unfair or legally erroneous.
2. Planning judgment. The interpretation of planning policy is for the court, but the application of policy to particular facts and the weight given to competing considerations are matters for the decision-maker. Those matters are not for the court unless the decision is irrational or perverse. Policies may pull in different directions, and more than one planning answer may be reasonably available.
3. Retail need and sequential preference. The inspector had found that an identified retail need for Glynneath was addressed by the Park Avenue allocation. Her reference to that site as sequentially preferable concerned the location for meeting the identified retail need, not the suitability of Park Avenue for a roadside service area. The challenge therefore misunderstood the decision. Tesco Stores Ltd v Dundee City Council [2012] PTSR 983 did not assist because it concerned different Scottish policy and the inspector had not applied the sequential test in the manner alleged.
4. Procedural fairness. Procedural fairness requires a party to know the case it has to meet and to have a reasonable opportunity to adduce evidence and make submissions. No unfairness arose because the inspector had not reached the conclusion said to have been withheld from the claimant.
5. Retail policy. The inspector was entitled to conclude that the proposals conflicted with, or failed to accord with, the LDP retail policies. The use of the word “conflict” could not be isolated from the policy context, which imposed strict control on out-of-centre retail development and contained no supportive policy for retail development outside settlement limits.
6. Infrastructure exception. Whether a proposal is “infrastructure” under Policy SC1 was a definitional question, not an exercise of planning judgment. A roadside service area was not infrastructure merely because the LDP definition referred to matters such as roads, water supply, sewers, electricity, education, recreation and health facilities.
7. New argument. Whether the proposal was “associated with infrastructure”, and whether it could reasonably be located elsewhere, involved planning judgment. The argument had not been advanced before the inspector and there were no relevant findings. The court could not quash the decision on that basis. All grounds failed and the section 288 application was dismissed.

This was a first-instance statutory review. Permission was initially refused on the papers by Lewis J on 15 June 2017, but was granted after oral renewal by HHJ Jarman QC on 28 July 2017. The High Court dismissed the substantive application under section 288 of the Town and Country Planning Act 1990.