Renew Land Developments Ltd v Welsh Ministers
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Richards,Lord Justice Phillips,Lord Justice David Richards |
| Judgment Date | 13 February 2020 |
| Neutral Citation | [2020] EWCA Civ 143 |
| Date | 13 February 2020 |
| Docket Number | Case No: 2019/0898 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 143
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, PLANNING COURT IN WALES
His Honour Judge Keyser QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice David Richards
Lord Justice Phillips
and
Sir Stephen Richards
Case No: 2019/0898
and
Gwion Lewis (instructed by the Government Legal Department) for the Appellant
Thea Osmund-Smith (instructed by Aaron & Partners LLP) for the Respondent
Hearing date: 30 January 2020
Approved Judgment
This appeal arises out of an application by Renew Land Developments Limited (“Renew”) and Cartrefi Conwy Cyf for outline planning permission for a housing development on land at Plas Gwilym Quarry, Old Colwyn, Conwy. The local planning authority, Conwy County Council (“the Council”), refused the application. The applicants appealed under s.78 of the Town and Country Planning Act 1990 (“the 1990 Act”) against that refusal. By a decision dated 28 August 2018 Ms Kay Sheffield, an inspector appointed by the Welsh Ministers, dismissed the appeal. A challenge to the inspector's decision was brought by Renew under s.288 of the 1990 Act and was upheld by His Honour Judge Keyser QC, sitting as a judge of the High Court. The judge quashed the decision and remitted the matter for redetermination by the Welsh Ministers. The Welsh Ministers now appeal to this court against the judge's order. The issues on the appeal are relatively narrow and relate primarily to the inspector's finding that the development would result in an unacceptable loss of open space. There is no dispute about the applicable legal principles.
The background
The application site is in a predominantly residential area. It covers an area of approximately 4.41 hectares and comprises a former quarry currently in commercial use, an area of pasture land to the south, and a grassed area of approximately 0.85 hectares to the north-east which is the focus of the case.
The application for outline planning permission was considered by the Council on the basis that the precise number of dwellings on the site could not be established until approval of the detailed layout after the grant of outline permission, but the likely number of dwellings was estimated at between 80 and 100.
The officers' report to the Council's planning committee concluded that the development would provide benefits in terms of helping to address the shortfall in housing land supply, as well as providing a beneficial use for under-used previously developed land. It also referred to a number of other benefits. As the application stood, however, the report considered there to be a number of critical questions that were unresolved, including the question of adequate provision of open space. The recommendation was that planning permission be refused.
The Council's refusal of the application 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.”
Policy DP/3 of the Local Development Plan states in general terms that the Council will require development to meet the Council's approved standards of open space provision (paragraph 1(b)).
Policy CFS/11 states that new housing development of 30 or more dwellings must make on-site provision for the recreational needs of its residents, in line with the Council's standards for open space.
Policy CFS/12, headed “Safeguarding Existing Open Space”, is the central policy for the purposes of this case. 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 provision within the vicinity of the development or within the same community.”
The explanatory text states:
“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 ….
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.”
Technical Advice Note 16 (TAN 16) is national guidance for Wales which requires local planning authorities to carry out open space assessments to inform their local development plans. It advises that locally generated standards should be based on robust evidence derived from the open space assessment and should include quantitative elements, a qualitative component and an accessibility component. It refers in Annex B to the definition of “open space” in s.336 of the 1990 Act, which includes “land … used for the purposes of public recreation”, and it states that for the purposes of the guidance open space should be regarded as all open space of public value.
The Council's Open Space Assessment (“OSA”), to which reference is also made in the reason for refusal, is a document dated August 2012. It was due to be updated in the light of an assessment exercise complying with TAN 16 but no such exercise had been carried out by the time of these proceedings. It is not itself part of the Local Development Plan but is material to the application of policy CFS/12. Paragraph 2.1 sets out the categories of public open space currently recorded: they include playing pitches, outdoor sports facilities and “Children's playing space — equipped play areas, areas for wheeled play and less formal areas”. Reference is also made in paragraph 2.3 to major formal amenity areas such as public parks and gardens. Paragraph 3.1 states:
“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.”
Paragraphs 6.1 and 6.2 contain tables relating to amounts of open space by locality and category. There was some doubt before us as to how the tables were to be read. It appears to me, however, that Table 1 sets out the amounts of existing open space and includes 3.43 hectares of existing “play space” in Old Colwyn; whilst Table 2 sets out the deficits of open space against relevant standards and shows a deficit of 2.81 hectares of play space in Old Colwyn. The detail is ultimately unimportant since, as considered below, it was common ground before the inspector that the grassed area of 0.85 hectares on the application site was included in the assessment of play space in Old Colwyn and that there was a substantial deficit of play space in the locality.
The appeal to the inspector
The appeal to the inspector was brought by both of the applicants for planning permission (Renew and Cartrefi Conwy Cyf). It proceeded on the basis of written representations by the parties and a site visit by the inspector.
The applicants' statement of case for the appeal recorded that, as set out in a statement of common ground, “it is only the matters of Open Space and Play Provision that are in dispute between the parties” (paragraph 3.1). It stated that “[a] portion of the application site, 0.85ha, is identified within the Council's Open Space Assessment as play space” and that the assessment also identified that there was an under-provision of play space in Old Colwyn (paragraph 3.6). It argued that the OSA provided only a quantitative assessment of open space across the borough; that policy CFS/12 did not require a like-for-like replacement of the play space being lost on the application site but required a value judgment, i.e. a qualitative assessment, not simply a quantitative one; and that the Council had failed to make the appropriate assessment (paragraphs 3.8–3.12). It continued (with emphasis in the original):
“3.13 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...
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