Renew Land Developments Ltd v Welsh Ministers

Privately owned land may constitute open space for planning-policy purposes where an agreement makes it available for public or dual use. A power or intention to exclude the public in future does not alter the land’s status at the date of decision. It is instead relevant to the weight of any fallback position. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the decision-maker must first assess conformity with the development plan and then decide whether material considerations justify permission. Residual visual amenity may be considered when assessing a fallback, even without a freestanding objection based on visual amenity.

Renew Land Developments Limited and Cartrefi Conwy Cyf sought outline planning permission for housing at Plas Gwilym Quarry, Old Colwyn. The local planning authority refused permission because the proposal would remove open space in an area with an existing shortfall. A Welsh Ministers’ inspector dismissed the applicants’ appeal. Renew challenged the decision under the Town and Country Planning Act 1990. The High Court upheld the challenge, quashed the inspector’s decision and remitted the matter for redetermination: [2019] EWHC 742 (Admin). The Welsh Ministers appealed. The central issues were whether the privately owned grassed area was open space under policy CFS/12, how the proposed fencing fallback affected the assessment, and whether the inspector had adequately considered the development plan and procedural fairness.

Disposition

The appeal was allowed and the inspector’s decision dismissing the planning appeal was reinstated.

1. Open-space status. The inspector was entitled to proceed on the parties’ common ground that the 0.85-hectare grassed area was open space for the purposes of policy CFS/12 and that the development would result in its loss. There was no evidential basis requiring further inquiry into the existence or form of any agreement with the landowner.
2. Privately owned land may fall within the policy where an agreement states that it is available for public or dual use. The agreement may be terminable at will. The land’s possible future exclusion from public use does not alter its status when the planning application is decided. If exclusion later occurs, that may affect the future application of the policy, but not its present application.
3. Fallback and planning balance. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the inspector correctly separated the question whether the proposal conflicted with the development plan from the question of the weight to give the fencing fallback as a material consideration. Whether the fallback outweighed the policy conflict was a matter of planning judgment. The inspector was entitled to conclude that it did not, taking account of the loss of informal open space, the proposed equipped play area under policy CFS/11 and the remaining visual amenity.
4. Visual amenity and fairness. Residual visual amenity could lawfully be considered in assessing the weight of the fallback, although visual amenity was not advanced as a freestanding objection. There was no procedural unfairness because the applicants themselves had raised the visual amenity consequence of fencing.
5. Development plan as a whole. The correct approach requires consideration of all relevant development-plan provisions. Where policies pull in different directions, the decision-maker must make a planning judgment having regard to the importance of the policies and the extent of compliance or breach. The inspector’s reasoning sufficiently showed that the conflict with CFS/12 meant that the proposal failed to accord with the development plan as a whole.

• Court of Appeal (Civil Division): allowed the Welsh Ministers’ appeal and reinstated the inspector’s dismissal of the planning appeal: [2020] EWCA Civ 143.
• High Court of Justice, Queen’s Bench Division, Planning Court: upheld Renew’s statutory challenge, quashed the inspector’s decision and remitted the matter for redetermination: [2019] EWHC 742 (Admin).