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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Renew Land Developments Ltd v Welsh Ministers & Ors [2019] EWHC 742 (Admin) (26 March 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/742.html Cite as: [2019] EWHC 742 (Admin) |
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QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES
Civic Centre, Mold, CH7 1AE |
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B e f o r e :
sitting as a Judge of the High Court
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RENEW LAND DEVELOPMENTS LIMITED |
Claimant |
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- and - |
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WELSH MINISTERS -and- (1) CONWAY COUNTY BOROUGH COUNCIL (2) CARTREFI CONWY CYF |
Defendant Interested Parties |
____________________
Gwion Lewis (instructed by Government Legal Department) for the Defendant
The Interested Parties did not appear and were not represented.
Hearing dates: 15 March 2019
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Crown Copyright ©
JUDGE KEYSER QC:
Introduction
Background
"The SPS [Supporting Planning Statement] advises that it is not possible to provide the necessary level of open space on site due to the limited developable area due to topography and the need to ensure that each property benefits from sufficient sunlight. The applicant also acknowledges that the development would result in a loss of existing designated informal play space. The applicant suggests that both could be provided off-site through payment/planning obligation."
In paragraph 56, which summarised the responses to consultations, the concerns of the Council's Open Spaces Manager were recorded: "The site includes a 0.85ha grassed area which is widely used for ball games and informal play. The nearest equipped play area is at Peulwys Lane, which is over half a kilometre away, and along a fairly busy estate road. Objects to the proposal as it stands." The area of 0.85 hectares is the north-east of the application site and is owned by Cartrefi. (It is shown coloured red on the plan exhibited to a witness statement dated 4 October 2018 of David Kelsall, the development and new business manager of Cartrefi.) The following text appeared under the heading "Open Space":
"78. Policy CFS/11 states that housing developments of 30 or more dwellings must include provision for open space. The supporting text states that the Council will seek children's play space in the form of on-site provision, and sports space through a financial contribution.
79. The applicant's Planning Statement refers to some communal amenity open space and landscaping within the development, but makes no reference to play areas. SPCS [i.e. the Council's Strategic Planning and Communities] advises that there is a deficiency of play space in the community, and that the development would result in the loss of c. 0.85a of existing open space."
80. The Open Space Manager advises that the nearest equipped play area is at Peulwys Lane, which is over half a kilometre away, and long a fairly busy estate road. The agent advises that enquiries have been made regarding the provision of a suitable alternative play area. However, to date, no such suitable sites have been identified. The application is therefore contrary to Policy CFS/11."
"92. The development would provide benefits in terms of helping to address the shortfall in the housing land supply, as well as providing a beneficial use for under-used previously developed land. The proposal would also remove concerns over the future stability/maintenance of the rock arch and of the parapets above it. In the longer term, the proposal would provide an alternative access to the existing sub-standard Craig Road / Llysfaen Road junction."
93. However, as the application currently stands, there are a number of critical questions and issues which remain unresolved. These include:
(i) Ensuring adequate provision of open space;
(ii) Ensuring that sustainable drainage can be provided as far as possible;
(iii) Clarification of highway authority requirements and delivery mechanisms.
94. Given the number and nature of these concerns, Officers are unable to support the application in its current form. The recommendation is therefore to refuse planning permission."
"The proposed development would result in the loss of existing open space identified as play space within Conwy County Borough Council's Open Space Assessment, of which there is a shortfall within the settlement of Old Colwyn. The application makes no provision for the replacement of this lost open space nor does it make adequate on-site provision for play space as part of the development. The proposal is therefore contrary to Policy DP/3, CFS/11 and CFS/12 of the adopted Conwy Local Development Plan 2013, Technical Advice Note 16: Sport, Recreation and Open Space and Planning Policy Wales, Edition 9."
Accordingly, there were two limbs of the reason for refusal: first, the loss of existing open space; second, the inadequate provision for play space. As I shall explain below, only the former limb is of continuing relevance.
Relevant policies etc.
"Planning Permission will not be granted for development which results in the loss of open space except where there is an over-provision of open space in the particular community, and the proposal demonstrates significant community benefits arising from the development, or where it will be replaced by acceptable alternative provision within the vicinity of the development or within the same community."
The text accompanying Policy CFS/12 included the following:
"4.5.10.10 The term 'open space' as referred to in Policy CFS/12 includes the following types as described in TAN 16: public parks and gardens, outdoor sports facilities, amenity green space and provision for children and young people. Such areas are of great significance to the local communities in the Plan Area. This is not only for the sports and recreational opportunities they offer, but the impact open space has on the attractiveness of the built and natural environment. Therefore, existing open space should not be lost unless the open space assessment clearly demonstrates an over-provision of open space necessary for the community's requirements. In such cases, developers will also need to demonstrate how their proposals will bring about significant benefits for those communities which will be losing the open space, such as provision of a satisfactory level of affordable housing, neighbourhood shops or other leisure facilities as and where appropriate.
4.5.10.11 If there is an under provision of open space in the community, the developer will need to provide an acceptable alternative site within the vicinity of the development, or within the same town or community council area. Any alternative site should be equivalent to, or better than, that taken by development and be easily accessible to the local community by sustainable transport modes."
"Categorisation of the types of public open space are currently recorded as:
• Playing pitches—outdoor marked playing pitches
• Outdoor sports facilities—natural or artificial surfaces including tennis courts, bowling greens, athletics tracks and other outdoor sports facilities
• Children's playing space—equipped play areas, areas for wheeled play and less formal areas."
Section 3.1 stated:
"Not all the areas of public open space are owned by the Council. If a formal agreement exists to state they are available for public/dual use they are considered as contributing to public open space provision."
The appeal
"It is the Council's case that the proposed development will result in the loss of existing open space, 'play space' as identified in the Council's Open Space Assessment, of which there is a shortfall within the settlement of Old Colwyn, and that the appeal proposal makes no provision for the replacement of this lost open space."
Paragraph 3.6 stated in terms:
"A portion of the application site, 0.85ha is identified within the Council's Open Space Assessment as play space."
The Statement of Case observed that the OSA had been written in 2012 and had not been updated and that it did not include a qualitative assessment or an assessment of accessibility.
"3.18 The portion of the appeal site in question is not formally allocated and safeguarded specifically within the Local Plan; it is only by way of the landowner leaving it unfenced and in allowing people to use it that it has value as 'play space', albeit informal as no formal play provision is made.
3.19 This being the case, as previously discussed, the use of the land as open space can be lost without the need for any formal planning permission as the land could be fenced under permitted development rights."
On the other hand, the provision of formal play facilities under the Unilateral Undertaking would both guarantee the future retention of public space, which was an advantage in comparison with the uncertain availability of the 0.85ha in perpetuity, and provide improved facility as compared with the merely open space already existing.
"3.14 Phase 1B of the appeal proposal would be situated on a gently-sloping grassed area, which is maintained by Cartrefi Conwy and identified in the 2012 OSA as a Play Area. A footway/cycleway with street lighting runs along the northern boundary of Phase 1B, and there is a small car park at the western end.
3.15 The proposal would result in the loss of this provision, which amounts to approximately 0.85ha, in an area where there is a significant shortfall, without any replacement provision that is equivalent either in terms of size or suitability. The area shaded green on the site sketch layout submitted with the application comprises the rock face and its immediate surroundings, whose suitability to provide usable recreational space would be severely constrained by topographic and safety constraints. The proposal is therefore contrary to Policy CFS/12."
"The appellants have not provided evidence of any intention to fence off the open space, and the indication given in their Statement of Case is based on no more than speculation. … The Council therefore considers that the prospect of it being fenced off in advance of development is unlikely, and as such, the weight to be afforded to it as a material consideration is low."
The Decision
"13. It is accepted that the obligation in the UU [Unilateral Undertaking] to provide an equipped play area would give the facility formal status. However, the equipped play area would constitute an up-grade of an existing area of informal open space and would not provide additional land for use as open space. It is acknowledged that the equipped play area would provide a facility not currently available in the vicinity of the site, to the benefit of residents of the wider area as well as future occupants of the development. Nevertheless, it would constitute a loss of informal open space additional to that which would be lost within the appeal site itself. I am not persuaded that the provision of an equipped play area would adequately compensate for the loss of a significant area of informal open space in a community where there is an overall deficit in open space provision.
14. I therefore find the development would result in an unacceptable loss of public open space, contrary to policy CFS/12 of the LDP and the guidance in Planning Policy Wales (PPW9) and Technical Advice Note (TAN) 16: Sport, Recreation and Open Space which seek to protect formal and informal public space from development except where it will be replaced by acceptable alternative provision within the vicinity of the development or within the same community.
15. I have noted he Appellants' intention to fence off the area of open space which falls within the appeal site thus preventing public access to it. These works would be allowed under permitted development rights. Although the Council is of the view that the prospect of these actions being carried out in advance of the development is unlikely, I am satisfied by the evidence that it is the intention of the Appellants to do so and as a fall-back position it is a material consideration in the determination of the appeal. It is accepted that such actions would prevent public use of the land. Nevertheless the land would be devoid of built development and depending on the type of fence erected it would continue to make a contribution to visual amenity."
"Conclusions
"19. The development would result in the loss of informal open space in a community where there is already an overall deficit in open space provision. This carries significant weight against the appeal.
20. It is acknowledged that the land could be fenced off preventing its use as informal open space. In addition the development would contribute to housing land supply including an element of affordable housing. The provision of an equipped play area which would be of benefit to the local community as well as future occupants of the proposed dwellings also adds weight in support of the appeal. However I do not consider these factors to be sufficient to outweigh the loss of open space.
21. For the reasons given above, and having had regard to all other matters raised, the appeal is dismissed."
This challenge: grounds and law
1) The Inspector's treatment of the open space issue was unlawful. The decision letter lacks adequate reasons for finding a conflict with policy CFS/12, demonstrates a misunderstanding of the nature of open space on site, and is irrational in its treatment of the fall-back position. The Inspector's reasons for identifying harm are entirely unclear and unsupported by the evidence before the Inspector, and inconsistent with the Inspector's own findings of fact. Matters of visual amenity as a distinct point were not raised with the claimant, as they should have been.
2) The Inspector failed to accord statutory priority to the development plan or carry out a planning balance in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") and failed to have regard to material consideration in terms of the undisputed benefits of the scheme.
"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to 'rehearse every argument relating to each matter in every paragraph' (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the 'principal important controversial issues'. An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, 'provided that it does not lapse into Wednesbury irrationality' to give material considerations 'whatever weight [it] thinks fit or no weight at all' (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for areview
of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145)."
"46. Since development plans contain numerous policies, the local planning authority must have regard to those policies (or 'provisions') which are relevant to the application under consideration. The initial judgment as to which policies are relevant is for the local planning authority to make. Inevitably some policies will be more relevant than others, but section 70 envisages that the Council will have regard to all, and not merely to some of the relevant provisions of the development plan.
47. In my judgment, a similar approach should be applied under section 54A. The local planning authority should have regard to the provisions of the development plan as a whole, that is to say, to all of the provisions which are relevant to the application under consideration for the purpose of deciding whether a permission or refusal would be 'in accordance with the plan'.
48. It is not at all unusual for development plan policies to pull in different directions. A proposed development may be in accord with development plan policies which, for example, encourage development for employment purposes, and yet be contrary to policies which seek to protect open countryside. In such cases there may be no clear cut answer to the question: 'is this proposal in accordance with the plan?' The local planning authority has to make a judgment bearing in mind such factors as the importance of the policies which are complied with or infringed, and the extent of compliance or breach. In City of Edinburgh Council v. the Secretary of State for Scotland [1997] 1 W.L.R. page 1447, Lord Clyde (with whom the remainder of their Lordships agreed) said this as to the approach to be adopted under section 18A of the Town and Country Planning (Scotland) Act 1972 (to which section 54A is the English equivalent):
'In the practical application of section 18A, it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in the light of the whole plan the proposal does or does not accord with it.'
49. In the light of that decision, I regard as untenable the proposition that if there is a breach of any one policy in a development plan, a proposed development cannot be said to be 'in accordance with the plan'. Given the numerous conflicting interests that development plans seek to reconcile: the needs for more housing, more employment, more leisure and recreational facilities, for improved transport facilities, the protection of listed buildings and attractive land escapes et cetera, it would be difficult to find any project of any significance that was wholly in accord with every relevant policy in the development plan. Numerous applications would have to be referred to the Secretary of State as departures from the development plan because one or a few minor policies were infringed, even though the proposal was in accordance with the overall thrust of development plan policies.
50. For the purposes of section 54A it is enough that the proposal accords with the development plan considered as a whole. It does not have to accord with each and every policy therein."
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. ... Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."
Discussion
Ground 1
"The land the subject of the allocation has been identified by the Council as informal play space and could only ever be considered informal because that land is in private ownership. It is within the gift of the landowner to choose to fence off the land at any point in time and restrict access to that space. If the landowner were to do this the land could no longer perform the function of play space; it would remain undeveloped and thus only have a visual amenity value as open space, albeit this would be affected by the erection of said fence."
At the least, Miss Osmund-Smith submits, the Inspector ought to have made an enquiry on the point to ascertain the true position. She referred me to Save Our Greenhills Community Group v Secretary of State for Communities and Local Government [2016] EWHC 1929 (Admin), where Dove J said at [39]:
"When it is alleged that an Inspector has failed in his or her duty to make sufficient enquiries into the planning merits, the question which the court has to answer it whether the enquiry which was made was so inadequate that no reasonable Inspector could suppose that he or she had sufficient material available upon which to decide whether or not to grant planning permission."
"The status of a fall-back development as a material consideration in a planning decision is not a novel concept. It is very familiar. Three things can be said about it:
(1) Here, as in other aspects of the law of planning, the court must resist a prescriptive or formulaic approach, and must keep in mind the scope for a lawful exercise of planning judgment by a decision-maker.
(2) The relevant law as to a 'real prospect' of a fall-back development being implemented was applied by this court in Samuel Smith Old Brewery (see, in particular, paragraphs 17 to 30 of Sullivan L.J.'s judgment, with which the Master of the Rolls and Toulson L.J. agreed; and the judgment of Supperstone J. in R. (on the application of Kverndal) v London Borough of Hounslow Council [2015] EWHC 3084 (Admin), at paragraphs 17 and 42 to 53). As Sullivan L.J. said in his judgment in Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities and Local Government [2009] JPL 1326, in this context a 'real' prospect is the antithesis of one that is 'merely theoretical' (paragraph 20). The basic principle is that '… for a prospect to be a real prospect, it does not have to be probable or likely: a possibility will suffice' (paragraph 21). Previous decisions at first instance, including Ahern and Brentwood Borough Council v Secretary of State for the Environment [1996] 72 P. & C.R. 61 must be read with care in the light of that statement of the law, and bearing in mind, as Sullivan L.J. emphasized, '… "fall back" cases tend to be very fact-specific' (ibid.). The role of planning judgment is vital. And '[it] is important … not to constrain what is, or should be, in each case the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions withinjudicial
formulations that are not enactments of general application but are themselves simply the judge's response to the facts of the case before the court' (paragraph 22).
(3) Therefore, when the court is considering whether a decision-maker has properly identified a 'real prospect' of a fall-back development being carried out should planning permission for the proposed development be refused, there is no rule of law that, in every case, the 'real prospect' will depend, for example, on the site having been allocated for the alternative development in the development plan or planning permission having been granted for that development, or on there being a firm design for the alternative scheme, or on the landowner or developer having said precisely how he would make use of any permitted development rights available to him under the GPDO. In some cases that degree of clarity and commitment may be necessary; in others, not. This will always be a matter for the decision-maker's planning judgment in the particular circumstances of the case in hand."
1) The Inspector mentioned visual amenity in connection with the fall-back position in paragraph 15 of the Decision. It is unclear whether she considered the loss of visual amenity a sufficient reason for refusing permission or merely a disadvantage of development as compared to non-development; she did not say.
2) Mr Lewis submitted that visual amenity was not entirely separable from policy considerations concerning public open space, because as the text accompanying policy CFS/12 makes clear open space has an impact "on the attractiveness of the built and natural environment" (see paragraph 12 above). I do not think that this submission assisted him. The Inspector accepted the fall-back position, which involved fencing the land. If the land were fenced, it would cease to be public open space within the OSA. Therefore, residual visual amenity would be relevant only as a substantive matter in its own right, not as an aspect of the benefit of preserving public open space in accordance with a policy in the local development plan. It was not disputed that the refusal of permission for development would preserve the visual amenity of undeveloped land. The question was what, if anything, was the relevance of that fact. No objection to the development on the ground of visual amenity had been advanced by the Council. Mr Lewis submitted that the Inspector was not required to and did not make any determination on that point: she was entitled simply to consider that, having regard to the residual visual amenity that would be preserved, the fall-back was not a sufficiently weighty consideration to outweigh the policy contravention involved in the proposed development. However, once it is acknowledged that the open space will be lost both under the development and under the fall-back, the preservation of the visual amenity of undeveloped land can only militate against the grant of permission on the appeal if it is considered to be a sufficient free-standing objection to development.
3) The root of the problem, as before, is the illogicality of combining acceptance of the fall-back and the conclusion that the development would result in the loss of a public open space. However, in the circumstances, if the Inspector was going to rely on a visual amenity argument as a reason for refusing permission, she ought, for the reasons mentioned in this paragraph, to have raised this with the appellants and given them an opportunity to address it, and her failure to do so constitutes material unfairness.
Ground 2
Conclusion