Renew Land Developments Ltd v Welsh Ministers
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 26 March 2019 |
| Neutral Citation | [2019] EWHC 742 (Admin) |
| Docket Number | Case No: CO/3912/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2019 |
[2019] EWHC 742 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES
The Law Courts
Civic Centre, Mold, CH7 1AE
HIS HONOUR JUDGE Keyser Q.C.
sitting as a Judge of the High Court
Case No: CO/3912/2018
and
Thea Osmund-Smith (instructed by Aaron & Partners) for the Claimant
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
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Keyser Q.C.
JUDGE Keyser QC:
Introduction
This claim, commenced on 5 October 2018 and continued pursuant to permission granted by HHJ Jarman QC, sitting as a Judge of the High Court, on 20 November 2018, is a challenge by Renew Land Developments Ltd (“Renew”) under section 288 of the Town and Country Planning Act 1990 (“the Act”) to the decision dated 28 August 2018 of Kay Sheffield, a Planning Inspector appointed by the defendant, the Welsh Ministers, dismissing an appeal by Renew and the second interested party, Cartrefi Conwy Cyf (“Cartrefi”), against a refusal of planning permission by the first interested party, Conwy County Borough Council (“the Council”).
At the hearing, Renew was represented by Miss Osmund-Smith and the Welsh Ministers by Mr Gwion Lewis. I am grateful to both counsel for their helpful written and oral submissions.
Background
The application for planning permission was made jointly by Renew and Cartrefi. It sought outline planning permission for residential development (of the order of 80 to 100 units; the amount remained to be determined) and alterations to the road layout at a site off Llysfaen Road, Old Colwyn. Details of the access formed part of the application, but all other matters were to be reserved for further approval.
The application site, though in a predominantly residential area, comprised the former Plas Gwilym Quarry and covered an area of approximately 4.41 hectares. As well as the quarry bowl, the site included two additional areas on higher ground: pasture land to the south, and a grassed amenity area to the north- east. Both at the time of the Council's refusal of planning permission and at the time of the Inspector's decision on appeal, the application site was in commercial use.
The application for planning permission was subject of a report dated 11 October 2017 to the Council's planning committee. Much of the report was in terms favourable to the application. Thus, in the section dealing with Planning Considerations and the policies in the local development plan, paragraph 60 observed: “Policy DP/1 sets out the sustainable development principles and DP/2 and HOU/1 set a presumption in favour of residential development on suitable sites within urban areas. The development is considered to be acceptable in principle …” Paragraph 61 identified a shortfall in supply of housing: a 3.1-year supply as against a requirement in Technical Advisory Note (TAN) 1 of a 5-year supply. Paragraph 62 considered the potential loss of employment on the land but concluded: “there is a clearly identified need for housing within Conwy and the housing land supply falls below the five year supply required. Consequently, housing demand outweighs the retention of the existing employment use in this instance.” Among other matters, paragraph 69 mentioned amenity concerns that had been raised and concluded: “In overall terms, the amenity benefits are therefore positive.” And paragraph 82 said: “given the site's context, surrounding uses, topography and its historic use as a quarry, it is not considered that the visual impact would be unacceptable.”
However, the report highlighted two areas of concern: the lack of provision of play space for children on the site, and the loss of informal amenity land that would be entailed by developing the site. Thus, paragraph 15 said:
“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 northeast 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.”
The concluding part of the report was in the following terms:
“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 Council's Refusal of Outline Planning Permission was issued on 18 October 2017. The reason for refusal was:
“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.
It is necessary to refer in more detail to some of the policies in the Council's local development plan and to two other associated documents.
Policy DP/3, headed “Promoting Design Quality and Reducing Crime” states in paragraph 1(b) that new development will be required to meet the council's approved standards of open space provision.
Policy CFS/11, headed “Development and Open Space”, was mentioned both in the Council's officers' report and in the reason for refusing planning permission. Paragraph 1 states that new housing development of 30 or more dwellings shall make on site provision for the recreational needs of its residents in line with the council's standards for open space. (It sets out those standards but I do not need to repeat them here.) Paragraph 2 states that in exceptional and justified circumstances consideration will be given to the provision of a commuted sum as an alternative to on-site provision.
Policy CFS/12, headed “Safeguarding Existing Open Space”, was mentioned in the reason for refusing planning permission but not in the officers' report. It reads:
“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...
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Renew Land Developments Ltd v Welsh Ministers
...(CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION, PLANNING COURT IN WALES His Honour Judge Keyser QC [2019] EWHC 742 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Before: Lord Justice David Richards Lord Justice Phillips and Sir Stephen Richards Ca......