Waterstone Estates Ltd v The Welsh Ministers

In Wales, Planning Policy Wales imposes a discrete requirement to establish need for retail development outside defined centres. If need is absent, the policy does not require a sequential-site inquiry. Failure to meet the policy is not legally fatal, since other material considerations may outweigh the resulting planning harm. The term suitable refers to suitability for general retail use where the policy applies to both plan-making and decision-taking. Authorities concerning different English or Scottish policy wording cannot control its construction. An inspector need not raise an unargued point unless it is Robinson-obvious and has a strong prospect of success. Section 38(6) of the Planning and Compulsory Purchase Act 2004 creates a rebuttable presumption in favour of the development plan.

The Developer sought permission for a roadside service area on land 45 metres outside the settlement limits of Glynneath. Neath Port Talbot County Borough Council refused two applications, and the Welsh Ministers’ Inspector dismissed the Developer’s appeals on 7 April 2017.

The Developer challenged the decisions under section 288 of the Town and Country Planning Act 1990. Fraser J refused the challenge on 16 November 2017: [2017] EWHC 2922 (Admin). The appeal concerned whether the proposal was associated with the provision of infrastructure under criterion 9 of Local Plan policy SC1, and whether Planning Policy Wales treated need as a gateway to the sequential approach, including the relevance of the Park Avenue site.

1. Appeal dismissed. Lord Justice Hickinbottom gave the judgment, with Lord Justice Singh and Lord Justice Davis agreeing.
2. Ground A failed. An inspector generally has to address the principal important controversial issues, but is not required to raise an unargued point unless it is Robinson-obvious, meaning that it has a strong prospect of success. The argument that the proposal was associated with infrastructure had not been advanced before the Inspector and fell well short of that threshold. The challenge was also raised too late.
3. In any event, criterion 9 of policy SC1 refers to development associated with the provision of prospective or new infrastructure that cannot reasonably be located elsewhere. The words provision and located elsewhere are material. They do not naturally encompass development associated only with an existing road such as the A465.
4. Ground B failed. On a broad reading of Planning Policy Wales, paragraphs 10.2.9 to 10.2.12 impose a discrete requirement to establish need for additional retail provision outside defined centres. If need is not established, there is no policy requirement to identify sequentially preferable sites. That requirement does not make refusal legally inevitable: national policy remains a material consideration, and other material considerations may outweigh the planning harm arising from non-compliance. The presumption under section 38(6) of the Planning and Compulsory Purchase Act 2004 therefore remained rebuttable.
5. The word suitable in paragraph 10.2.14 means suitable for general retail use, because the paragraph applies to both plan-making and decision-taking. The English and Scottish authorities relied on by the Developer concerned different policy wording. The Inspector had read her decision letter as a whole and treated Park Avenue as capable of meeting identified general retail need, not as a suitable site for a roadside service area. She therefore made no error of law.

• Court of Appeal (Civil Division) dismissed the appeal.
• High Court, Queen’s Bench Division, Planning Court Fraser J refused the section 288 applications under the Town and Country Planning Act 1990 on 16 November 2017: [2017] EWHC 2922 (Admin).
• Welsh Ministers and Inspector The Council refused the planning applications on 25 August 2016. The Inspector dismissed the Developer’s appeals on 7 April 2017.