Renew Land Developments Ltd v Welsh Ministers & Ors

In a planning challenge, a policy protecting public open space cannot rationally be applied to land which the owner may lawfully exclude the public from and intends to enclose. Acceptance of that fall-back may demonstrate that the supposed policy conflict is illusory. A decision-maker must address the status of the land coherently and make further enquiry where the material raises a substantial question. If a refusal is also supported by a free-standing visual-amenity objection not advanced by the parties, procedural fairness requires an opportunity to respond. The court may quash the decision for irrationality, inadequate enquiry and material unfairness.

Renew Land Developments Ltd and Cartrefi Conwy Cyf appealed against refusal of outline planning permission for residential development at a former quarry in Old Colwyn. The Council relied on the loss of informal open space and inadequate play-space provision. The Inspector accepted a unilateral undertaking addressing play space but dismissed the appeal because development would lose 0.85 hectares of informal open space in a community with an overall deficit.

On a claim under section 288 of the Town and Country Planning Act 1990, Renew challenged the Inspector’s treatment of the land and of the proposed fall-back that the owner could fence it under permitted development rights. It also alleged failure to apply the statutory planning balance and procedural unfairness.

1. Outcome. The claim succeeded on Ground 1. The Inspector’s decision was quashed and the matter was remitted to the Welsh Ministers for redetermination. Ground 2 would have been dismissed.
2. The objection under Policy CFS/12 depended on the land being part of the public open-space stock. The relevant land was privately owned and could be enclosed by the owner at will. The Inspector accepted that the appellants intended to fence it and that fencing would prevent public use. In those circumstances, it was irrational and an error of law to treat Policy CFS/12 as engaged merely because the parties had proceeded on that assumption (paras [47]-[50]).
3. The fall-back did not mean that the proposed development automatically avoided a policy conflict. Rather, its availability showed that the supposed conflict was illusory: both the development and the fall-back would remove the informal public use relied on by the Inspector. It was irrational to accept the fall-back while also treating the development as causing an unacceptable loss of public open space (paras [50]-[54]).
4. If visual amenity was to operate as an independent objection, the appellants had to be told of it and given an opportunity to respond. The failure to do so constituted material unfairness (para [55]).
5. Even assuming a conflict with Policy CFS/12, the Inspector’s reasons sufficiently disclosed the building blocks of her decision. It was implicit that she had considered the development plan as a whole and given appropriate weight to competing material considerations (paras [56]-[61]).
6. The claimant received all its costs (para [63]).

This was a first-instance claim under section 288 of the Town and Country Planning Act 1990, challenging the Welsh Ministers’ Inspector’s decision dismissing the planning appeal.