In Renew Land Developments Ltd v Welsh Ministers [2020] EWCA Civ 143; [2020] PLSCS 23, the Court of Appeal overturned a High Court decision requiring redetermination of a planning application. In doing so, it restored the inspector’s decision to refuse an application for housing development on a privately owned site after concluding that the land was open space and protected from development, despite the landowner’s ability to restrict public access to it.
On the facts, a developer had applied for planning permission for a new housing development stretching over four hectares in a predominantly residential area of Conwy, Wales. The local planning authority refused the application on the grounds it would result in the loss of existing open space (making up 0.85 hectares of the site) under the local development plan policy. The applicant appealed to the planning inspector, appointed by the Welsh Ministers, and argued if permission was refused, it would fence off the area of open space to restrict public access and therefore the area would not be regarded as open space. The applicant appealed the inspector’s refusal to the High Court, and Judge Keyser QC ordered the application be redetermined by the Welsh Ministers.
In its judgment, the Court of Appeal held an area of open space can be in public or private ownership. Those open areas in private ownership are created under a formal agreement between the authority and landowner, allowing the space to be enjoyed by the public. The fact it could in theory be excluded to the public did not necessarily mean that it was anything other than public space. Moreover, a planning application is made on the existing status of land, which was open space.
The court supported the approach of the inspector in considering that, even if the land was fenced off, it would remain undeveloped and likely preserve a degree of visual amenity. Therefore the inspector’s decision should be based on whether there would be a loss of open space and if so, whether the fall back position could sufficiently justify the grant of planning permission. The High Court’s decision was overturned and the application was refused.
The decision is important in confirming the approach of local authorities and planning inspectors in reaching their decisions on applications, particularly where policies pull in different directions and a judgment must be made based on the importance of the policies and the extent of compliance.
Claire Petricca-Riding is a partner and national head of planning and environmental law at Irwin Mitchell LLP
