Important Court of Appeal judgment on retail planning policy in Wales

Waterstone Estates Ltd v Welsh Ministers [2018] EWCA Civ 1571 The Court of Appeal has given an important judgment on retail planning policy in Wales, confirming that, unlike English and Scottish retail planning policy, the policy in Chapter 10 of Planning Policy Wales (PPW) requires a developer to show that a proposed development will meet a “need” for retail development of that kind before one progresses to the sequential approach to site selection. That contrasts with the position in Scotland (see Tesco Stores Ltd v Dundee City Council [2012] PTSR 983) and England (see Warners Retail (Moreton) Limited v Cotswold District Council [2016] EWCA Civ 606). In upholding the argument of the Welsh Ministers that a different approach is required under PPW, Hickinbottom LJ observed:

84. … Mr Buley powerfully submitted, "suitable" in paragraph 10.2.14 must mean suitable for general retail use because, in that paragraph, it is applied to plan-making as well as decision-taking on an application, and Mr Lewis accepts that, for in the context of plan-making, that is the accepted (and only sensible) meaning. It must have the same meaning in respect of each of those functions. That meaning is clearly not the same as that used in the three English and Scottish authorities relied upon by Mr Lewis. I do not consider that those cases assist on the issue of construction of PPW: they concern the construction of different national policies that apply in England and Scotland.

He went on to say that:

89. As a result of the construction of the PPW which I consider to be true, it may well be that policy relevant to need on an application for planning permission for retail use in Wales is significantly different from that in England. That is not surprising, given the devolved nature of town and country planning. It is to be expected that, over time, planning policy and substantive law will increasingly diverge. …

90. I emphasise that Mr Lewis, who is highly experienced in planning matters in Wales, did not for a moment suggest that there should be an assumption that planning policy in Wales is the same as in England. This case is a further reminder as to how dangerous such an assumption might be.

Gwion Lewis acted for the Appellant developer. Tim Buley acted for the Welsh Ministers.