Welsh Ministers win Court of Appeal battle over open space policy

The Court Of Appeal has overturned a High Court ruling which Sir Stephen Richards said would have introduced “an unwarranted rigidity” into planning policy.

In Renew Land Developments Ltd v Welsh Ministers [2020] EWCA Civ 143 Renew Land Developments and Cartrefi Conwy Cyf had applied to Conwy County Borough Council to build between 80-100 homes on Plas Gwilym Quarry.

The council refused the application and the applicants unsuccessfully appealed.

Renew and Cartrefi Conwy then challenged the inspector's decision and this was upheld by HHJ Keyser QC, sitting as a judge of the High Court.

He remitted the matter to Welsh Ministers who in turn appealed against his ruling.

The site of some 4.41 hectares comprises a former quarry, pasture and a grassed area of 0.85 hectares used as informal open space.

An officer’s report to Conwy’s planning committee concluded that the development would help with housing supply but should be refused for loss of open space.

At appeal, the inspector concluded: “The development would result in the loss of informal open space in a community where there is already an overall deficit in open space provision. This carries significant weight against the appeal.”

But when the case reached the High Court HHJ Keyser said the heart of Renew's case was 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 sites 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”.

Giving judgment, Sir Stephen said: “If the judge is to be understood as going so far as to hold 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, such a proposition cannot in my view be correct.

“No authority has been advanced in support of it and it would introduce an unwarranted rigidity into the area of planning policy.”

Mark Smulian