Waterstone Estates Ltd v The Welsh Ministers
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Davis,Lord Justice Hickinbottom |
| Judgment Date | 06 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1571 |
| Docket Number | Case No: C1/2017/3322 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 July 2018 |
[2018] EWCA Civ 1571
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES
THE HON MR JUSTICE FRASER
Cardiff Civil and Family Justice Centre
2 Park Street, Cardiff, CF10 1ET
Lord Justice Davis
Lord Justice Hickinbottom
and
Lord Justice Singh
Case No: C1/2017/3322
and
Gwion Lewis (instructed by Berry Smith LLP) for the Appellant
Tim Buley (instructed by Government Legal Department) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 21 June 2018
Judgment Approved
Introduction
Planning in Wales is a devolved function. This appeal gives rise to a potentially important issue as to whether, in relation to the approach to need in the consideration of a planning application for retail development outside settlement areas, the substance of national planning policy in Wales is substantively different from that in England. The Welsh Ministers contend that it is; the Appellant (“the Developer”) that it is not. Whether it is or not depends upon the proper construction of the relevant Welsh policy as a matter of law.
The appeal concerns a site adjacent to the A465 at the Blaengwrach Roundabout, Glynneath (“the Site”), part of which is currently used as a petrol filling station and two fast-food restaurants, which the Developer wishes to develop as a roadside service area. The Site lies 45m outside the settlement limits of Glynneath.
On 12 February 2016, the Developer made applications for planning permission to the Interested Party local planning authority (“the Council”) for two parts of the Site, namely (i) for full permission for a roadside service area comprising a petrol filling station and kiosk, a “drive-thru” coffee shop, car parking and associated works, and (ii) for outline permission for a pub/restaurant, car parking and associated works. Although pursued through two separate applications, the Developer always intended the development to comprise in substance a single roadside service area. Unless the context requires, in this judgment I shall treat the development as such.
The Council refused both applications on 25 August 2016. The Developer appealed under section 78 of the Town and Country Planning Act 1990 (“the 1990 Act”). The Welsh Ministers transferred authority to determine both appeals to Janine Townsley LLB (Hons) (“the Inspector”). Following a site visit and hearing, the Inspector refused the appeals in a decision letter dated 7 April 2017.
The Appellant applied to the High Court under section 288 of the 1990 Act to quash those decisions. On 16 November 2017, Fraser J refused that application. With permission from Lewison LJ, the Appellant now appeals against that refusal.
The appeal was heard by this court in Cardiff, where Gwion Lewis of Counsel appeared for the Appellant and Tim Buley of Counsel for the Welsh Ministers. Both also appeared below, although neither before the Inspector. At the outset, I thank them both for their helpful submissions.
The Relevant Law
The applicable law is uncontroversial and, for the purposes of this appeal, can be shortly put.
Section 70(2) of the 1990 Act provides that, in dealing with an application for planning permission, a decision-maker must have regard to the provisions of “the development plan”, as well as “any other material consideration”. “The development plan” sets out the local planning policy for an area, and is defined by section 38 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) to include adopted local plans. Section 38(6) of the 2004 Act (to which I shall refer as simply “section 38(6)”) provides:
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
Therefore, the development plan is not merely a material consideration for planning purposes: section 38(6) raises a presumption that planning decisions will be taken in accordance with the development plan, but that presumption is rebuttable by other material considerations. At all material times, the development plan for the Site has been the Council's Local Development Plan 2011–16 adopted January 2016 (“the Local Plan”).
“Material considerations” in this context also include statements of central government policy which, for Wales, are largely set out in the Welsh Government's Planning Policy Wales, first published in 2002. The relevant and current edition is Version 9 (2016) (“PPW”). It was not suggested that reference to any earlier versions would assist with the issues raised in this appeal. Furthermore, although PPW is supported by a number of Technical Advice Notes (“TANs”), other than TAN 18: Transport to the limited extent referred below (paragraphs 29 and 44), it was not suggested that any of them assisted either.
The true interpretation of policy is a matter of law for the court to determine ( Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PTSR 983 (“ Tesco Stores v Dundee”) at [17]–[22] per Lord Reed JSC). However, such broad statements of policy as are found in the Local Plan and PPW are not to be construed as if they were statutory provisions. Furthermore, the application of relevant policy (including the weight to be given to policies that are material considerations) often requires the exercise of planning judgment and, subject to a challenge on conventional public law grounds, is exclusively a matter for the decision-maker ( Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G per Lord Hoffmann, Tesco Stores v Dundee at [19], and R (Bloor Homes East Midlands Limited) v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin); [2017] PTSR 1283 (“ Bloor Homes”) at [19(4)]) per Lindblom J as he then was).
Nor can an inspector's decision letter be subjected to the same exegesis that might be appropriate for a statute or a deed. The decision letter must be read as a whole, and must be construed in a practical, reasonably flexible and common sense way, in the knowledge that it is addressed to the parties who will be well aware of the issues and the arguments deployed at the inspector's inquiry, so that it is not necessary to rehearse every argument but only the “principal important controversial issues” (see Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28 per Forbes J, and Bloor Homes at [19(1)]). The decision letter must give intelligible and adequate reasons as to why those issues were determined as they were ( South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at [35]–[36] per Lord Brown of Eaton-under-Heywood, and Bloor Homes at [19(2)]).
Although an application under section 288 is a statutory procedure, it is determined on traditional judicial review grounds. It does not afford an opportunity to review the planning merits of an inspector's decision ( Newsmith v Secretary of State for the Environment [2001] EWHC 74 (Admin) at [6] per Sullivan J, and Bloor Homes at [19(3)]).
Relevant Policy: PPW and the Local Plan
PPW sets out the national policy in respect of Retail and Commercial Development in Chapter 10, an essential part of which is a “sequential approach” to retail development, i.e. a hierarchy of decreasingly preferable locations for such development, with city/town centre sites at the top (in the form of a “town centres first” policy, that “consideration should always be given in the first instance to locating new retail and commercial development within an existing centre): see paragraph 10.1.4); then “edge-of-centre”, “out-of-centre” and “out of settlement”. Whilst it is said that A1 retail uses should underpin retailing and commercial centres, other retail and commercial centre uses such as A3 food and drink in such centres are also encouraged (paragraph 10.1.5).
In the Local Plan, “retail centres” are defined as “identified town, district and local centres” (paragraph 5.2.49, quoted at paragraph 24 below). Glynneath is a “district centre” (paragraph 5.2.46 and table 5.4).
In PPW, under the heading “Principles of retail and commercial planning”, and the sub-heading, “Retail and commercial strategies and support for existing centres”, paragraph 10.2.2 states:
“If a need (see 10.2.9 – 10.2.12) for retail development has been established, the strategy will need to consider the most appropriate form and scale of provision which best matches the retail needs of the community. Planning applications, including out-of-centre developments, which do not accord with this approach should demonstrate why they have departed from it. Out-of-centre developments refer to developments outside designated retail and commercial centres and beyond edge-of-centre developments; they can be located both within and outside settlement limits.”
It was common ground before us that, here, “the strategy” is a reference to the local planning strategy as set out in the local development plan; and that the second sentence of paragraph 10.2.2 simply reflected the requirements of section 38(6) in the context of the policy-mandated sequential approach.
In connection with “need for retail development”, paragraph 10.2.2 refers to paragraphs 10.2.9 – 10.2.12. So far as relevant to this appeal, those deal with “Tests for retail need”, as follows:
“10.2.9 In deciding whether to identify sites for comparison, convenience or other forms of retail uses in development plans or approving planning applications for such uses, local...
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