Town and country planning – Infrastructure – Retail development – Wales – Appellant developer appealing against decision of High Court refusing to quash decision of defendant ministers upholding refusal of planning permission for roadside service area in Wales – Whether inspector erring in not considering development “associated with infrastructure” – Whether inspector erring in approach to need and sequential preference test – Appeal dismissed
The appellant developer applied to the interested party local planning authority for planning permission for a site adjacent to the A465 at the Blaengwrach Roundabout, Glynneath, part of which was used as a petrol filling station and two fast-food restaurants, which the appellant wished to develop as a roadside service area. The applications were for full permission for a petrol filling station and kiosk, a “drive-thru” coffee shop, car parking and associated works; and outline permission for a pub/restaurant, car parking and associated works. Planning Policy Wales (PPW) set out the national policy in respect of retail and commercial development, which required a “sequential approach” to retail development, involving a hierarchy of decreasingly preferable locations for such development, with city/town sites at the top.
The interested party refused both applications and the appellant appealed under section 78 of the Town and Country Planning Act 1990. An inspector appointed by the defendant ministers dismissed that appeal on the ground that the proposed developments did not comply with the planning policy to restrict retail development outside defined settlement limits. The inspector found, amongst other things, that the identified retail need could be met by a sequentially preferable site and that the development did not amount to “infrastructure”, which was a criterion listed in the local plan as permissible development. The High Court refused its application under section 288 of the 1990 Act to quash that decision: [2017] EWHC 2922 (Admin).
The appellant appealed contending that the inspector had erred in: (i) not considering that the development was associated with the provision of infrastructure, namely the A465 road; and (ii) her approach to the PPW test for need and sequential preference.
Held: The appeal was dismissed.
(1) In general, an inspector was only required to deal with (and give reasons in relation to) the “principal important controversial issues”. The issue whether the development was “associated with infrastructure” was not an argument that had been raised before the inspector. The point was not so obvious that the inspector erred in not taking it of her own motion. Before the inspector, the appellant was represented by a planning agent. The statement of facts and grounds for the section 288 application was drafted by counsel. At the hearing of the application for permission to proceed, the appellant was represented by counsel. The inspector had not erred in not taking the point herself. It was important that the burdens placed on planning decision makers were not inappropriately heavy. To impose on the inspector the legal obligation of taking the point herself would quite unreasonably expect too much of her. In any event, the ground was not arguable since the reference to infrastructure in the local plan was to prospective development and did not include infrastructure already in existence.
(2) It was not fatal to the application if an applicant for planning permission for new retail development could not establish need. National planning policy was a material consideration; but if a particular policy requirement was not met, it had to be open to a decision-maker to grant planning permission if other material considerations outweighed identified planning harm including the harm that resulted from the failure to comply with that requirement. Even proposed development that was contrary to the local development plan, which had the entrenched importance given to it by section 38(6) of the Planning and Compulsory Purchase Act 2004, might be granted permission if other material considerations outweighed that inconsistency. By virtue of section 38(6), there was a presumption that permission would be refused. That presumption was rebuttable by other material considerations. However, in performing that assessment, the planning decision-maker had to take into account, not only the planning harm caused by the failure of the proposal to comply with the local plan, but also the planning harm inherent in the proposal as a result of it being contrary to any other material policy, including PPW. The inspector found that PPW did not require the establishment of need for a proposal such as this and put the fact that the proposal was contrary to PPW in that respect into the balance against grant. The proper construction of PPW depended upon a fair and broad reading of the policy document as a whole. In the context of planning applications, there was a discrete requirement for need to be established which, if not satisfied, was a breach of PPW policy.
Read broadly, and in its proper context, para 10.2.12 of PPW firmly indicated that, outside centres, need was a discrete requirement for planning applications; if it was not satisfied, there was no requirement to proceed to consider whether there was any sequentially preferable site. The inspector had proceeded on the basis that there was no need for roadside services. Need not having been established, there was no requirement to consider sequential preferable sites. However, she recognised that the local plan had identified a need for general retail use; and she therefore considered whether that identified need, which the proposal might go some way to satisfying, could or could not be met by a sequentially preferable site, concluding that it could. That ruled out any planning benefit to which the site might be entitled on that score in the planning balance exercise under section 38(6). The inspector did not suggest that an alternative site was sequentially preferable for use as a road services area: in any event, she considered preferable sites for that use when she considered other material considerations. The inspector did not err in law in the way she dealt with sequential preference.
Per curiam: There was no assumption that planning policy in Wales was the same as in England. On the true construction of PPW, policy relevant to need on an application for planning permission for retail use in Wales might well be significantly different from England. It was to be expected that, over time, planning policy and substantive law would increasingly diverge.
Gwion Lewis (Berry Smith LLP) appeared for the appellant; Tim Buley (instructed by the Government Legal Department) appeared for the respondent; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Waterstone Estates Ltd v Welsh Ministers
