The Court of Appeal has reinstated an appeal decision of a planning inspector dealing with open space policy following a successful appeal by the Welsh Ministers: Renew Land Developments Ltd v Welsh Ministers  EWCA Civ 143.
In her decision, the Welsh Ministers’ inspector had upheld the decision of Conwy County Borough Council to refuse planning permission for between 80 and 100 houses on land at Plas Gwilym Quarry, Old Colwyn. The inspector agreed with the Council that the proposal would result in an unacceptable loss of open space, contrary to policy CFS/12 of the Conwy Local Development Plan 2013. Before the inspector, the developer and the Council had agreed that the land proposed to be developed was open space and that policy CFS/12 was engaged. The inspector concluded that the conflict with policy CFS/12 was sufficient to render the proposal in breach of the development plan as a whole. She did not consider that this conflict was outweighed by the developer’s claim that it could, at any time, prevent the public from accessing the open space by erecting fencing using permitted development rights. The inspector did not consider that this ‘fallback’ position was determinative because a fenced area would still be of some value as open space (in a way that housing would not) by providing an area of visual amenity.
The developer challenged the inspector’s decision in the Planning Court. HHJ Keyser Q.C., sitting in Mold, upheld the developer’s challenge and quashed the inspector’s decision. Even though both parties had agreed before the inspector that the proposal would lead to a loss of open space, the judge accepted the developer’s case that “it makes no sense to suppose, and the Inspector did not adequately explain how it could be, that a development that was acceptable in principle under policies in favour of residential development on suitable suites within urban areas could be rendered unacceptable on account of a policy for the preservation of open spaces, in circumstances where the Inspector accepted that the landowner both could and would fence the relevant land, and thereby remove it from the stock of available open space, if the development were not permitted” .
The Welsh Ministers appealed against the judge’s order, contending that the judge had over-complicated a straightforward case. The Court of Appeal has now allowed the appeal and reinstated the inspector’s decision. Sir Stephen Richards (with whom David Richards LJ and Phillips LJ agreed) held that the inspector had been entitled to proceed on the basis of the parties’ agreement that the land was open space. The court also held that the judge had erred “in his detailed reasoning on the fall-back position” , the weight to be given to the fall-back being “a matter of planning judgment for the inspector” with which the court would not interfere .
Of potentially wider significance is the court’s rejection of the proposition that “as a matter of law, land cannot be treated as open space for planning purposes if the landowner has the power to exclude the public from it at will”. The developer had advanced “no authority” for that proposition which would “introduce an unwarranted rigidity into the area of planning policy”: .
Gwion Lewis acted for the Welsh Ministers.