Town and country planning – Planning permission – Open space – Local authority refusing planning permission for housing development – Inspector dismissing appeal – Judge quashing decision and remitting matter for redetermination – Appellant appealing – Whether judge adopting erroneous approach to open space policy – Whether procedural unfairness on visual amenity – Appeal allowed
The respondent developer applied for outline planning permission for a housing development at Plas Gwilym Quarry, Old Colwyn, Conwy in a predominantly residential area. It covered approximately 4.41 hectares and included a grassed area of approximately 0.85 hectares. If permission was refused, the respondent said it intended to fence off the area of open space within the appeal site, thus preventing public access to it.
The application was refused on the ground that the proposed development would result in the loss of existing open space identified within the Borough Council’s Open Space Assessment (OSA), of which there was a shortfall within the area; and would breach the council’s open space policy CFS/12.
The respondent appealed under section 78 of the Town and Country Planning Act 1990 against that refusal. Its fall-back position was that if the respondent carried out its intention to fence off the land, it would be removed from the stock of available open space and have only a visual amenity value. An inspector appointed by the appellant Welsh Ministers dismissed the appeal. The respondent’s challenge to that decision under section 288 of the 1990 Act was upheld by the High Court. The judge quashed the decision and remitted the matter for redetermination: [2019] EWHC 742 (Admin).
The appellants appealed contending that: (i) it was not irrational for the inspector to conclude that the proposed development breached policy CFS/12, because the parties agreed that the proposal would lead to a loss of open space; (ii) the judge adopted an erroneous approach to the fall-back position; and (iii) there was no procedural unfairness in relation to the issue of visual amenity as it related to the fall-back position.
Held: The appeal was allowed.
(1) The correct starting point when considering the lawfulness of the inspector’s decision was the common ground between the parties that the grassed area on the application site was open space for the purposes of policy CFS/12 and that the development would result in the loss of that open space. The inspector was plainly entitled to find that the development would result in an unacceptable loss of open space. There was no justification for holding that the inspector ought to have departed from or made further enquiry about the parties’ agreed position. To impose on the inspector the legal obligation of making further inquiry would quite unreasonably expect too much of her. It was neither an error of law nor irrational for her to proceed as she had without further enquiry of the parties or for her to find that policy CFS/12 was engaged: Waterstone Estates Ltd v Welsh Ministers [2018] EWCA Civ 1571; [2018] PLSCS 124 followed.
(2) An area of open space for the purposes of policy CFS/12 could be in public or private ownership. Areas in private ownership would count if a formal agreement existed to state they were available for public/dual use. There was no inconsistency between the existence of a formal agreement and the respondent’s stated fall-back position that the land could or would be fenced under permitted development rights. There was nothing in the OSA about the form an agreement had to take or the degree of formality required, and there was no reason in principle why a formal agreement stating that an area of land was available for public use should not be entered into on the basis that it is terminable at will so as to exclude the public thereafter.
(3) Under section 38(6) of the Planning and Compulsory Purchase Act 2004, planning applications were to be determined in accordance with the development plan unless material considerations indicated otherwise. Policy CFS/12 fell to be considered as part of the development plan, whereas the fall-back position fell to be considered as a material consideration. The inspector therefore had to decide first whether there would be a loss of open space in breach of policy CFS/12 and, if so, whether the fall-back position was to be given such weight as to justify the grant of planning permission notwithstanding the conflict with the development plan. The inspector had the correct approach clearly in mind. The judge had fallen into error in his detailed reasoning on the fall-back position.
The weight to be given to the fall-back was a matter of planning judgment for the inspector. In making that assessment, the inspector took into account that, although fencing the land would prevent public use of it, the land would still be devoid of built development and depending on the type of fence erected it would continue to make a contribution to visual amenity. It could not be said that the inspector failed to have regard to relevant considerations or that it was irrational for her to conclude that the fall-back did not outweigh the breach of the development plan.
(4) The judge was wrong to find that the inspector had erred in relation to the issue of visual amenity. The inspector had taken into account the preservation of visual amenity if the fall-back materialised simply as a factor affecting the weight to be given to the fall-back. Visual amenity was a legally relevant consideration. Procedural fairness did not require the inspector to raise it with the parties before she could rely on it in the decision.
(5) The correct approach to determining whether a proposed development was in accordance with the development plan was that the decision-maker should have regard to all the provisions of the development plan that were relevant to the application under consideration; and where policies pulled in different directions, in determining whether a proposal was in accordance with the plan, the decision-maker had to make a judgment bearing in mind such factors as the importance of the policies complied with or infringed and the extent of such compliance or breach. It was implicit in the inspector’s conclusions that she regarded the conflict with policy CFS/12 as sufficient to constitute a failure to accord with the development plan as a whole. It was not necessary for her to spell that out or elaborate it so as to address an issue that had not been raised.
Gwion Lewis (instructed by the Government Legal Department) appeared for the appellant; Thea Osmund-Smith (instructed by Aaron & Partners LLP) appeared for the respondent.
Eileen O’Grady, barrister
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