Preservation of Public Open Space in Urban Development: Renew Land Developments Ltd v. Welsh Ministers [2020] EWCA Civ 143

Introduction

The case of Renew Land Developments Ltd v. Welsh Ministers ([2020] EWCA Civ 143) addresses the delicate balance between urban development and the preservation of public open spaces. Renew Land Developments Limited (“Renew”) and Cartrefi Conwy Cyf sought outline planning permission for a substantial housing development at Plas Gwilym Quarry in Old Colwyn, Conwy. The local planning authority, Conwy County Council (“the Council”), refused the application primarily due to concerns over the loss of existing open space, a key consideration under the Council's Local Development Plan policies.

The matter escalated through various legal channels, culminating in the Court of Appeal, which reinstated the original refusal, thereby upholding the Council’s stance on maintaining open spaces within urban planning.

Summary of the Judgment

The England and Wales Court of Appeal (Civil Division) dismissed the appeal brought by the Welsh Ministers against the judge’s decision to quash the inspector’s refusal of the planning application. The Court upheld the original refusal made by the inspector, affirming that the proposed development would result in an unacceptable loss of public open space as per Policy CFS/12 of the Conwy Local Development Plan 2013.

The Court of Appeal scrutinized the High Court’s approach, ultimately deciding that the inspector's decision was lawful and rational, particularly in relation to the assessment of open space and the fall-back position presented by Renew. The appellate court rejected arguments that the inspector had erred in her evaluation of open space status due to the potential fencing of the land, emphasizing the importance of maintaining public open spaces in urban areas.

Analysis

Precedents Cited

The judgment makes reference to several key precedents that influence the interpretation and application of planning policies concerning open space:

Waterstone Estates Limited v. Welsh Ministers [2018] EWCA Civ 1571: Emphasizes the necessity for inspectors to adhere strictly to the development plan unless material considerations dictate otherwise.
City of Edinburgh Council v. Secretary of State for Scotland [1997] 1 WLR 1447: Highlights the importance of considering all relevant provisions of the development plan and balancing conflicting policies.
R v Rochdale MBC, ex parte Milne (2001) 81 P&CR 27: Reinforces that decision-makers must make judgments based on the importance of policies and the extent of compliance or breach.

These precedents collectively underscore the judiciary’s commitment to upholding planning policies that safeguard public interests, such as open spaces, against conflicting development pressures.

Legal Reasoning

The core legal reasoning in this case revolves around the interpretation and application of Policy CFS/12 from the Conwy Local Development Plan 2013, which governs the preservation of open spaces in the face of new development projects.

Policy CFS/12 stipulates that planning permission will not be granted for developments resulting in the loss of open space unless there is an over-provision of such space within the community or if the loss is compensated by an acceptable alternative provision within the vicinity.

The inspector initially refused the planning permission on the grounds that the proposed development would lead to the loss of 0.85 hectares of informal open space in Old Colwyn, exacerbating the existing deficit in public open spaces. Renew contested this decision, arguing that the failure to provide a like-for-like replacement was a misapplication of Policy CFS/12. However, the High Court quashed the inspector’s decision, prompting the Welsh Ministers to appeal.

Upon review, the Court of Appeal determined that the inspector was within her rights to classify the 0.85 hectares as public open space under the policy, especially given the common ground between the parties regarding the land's current use. The Court criticized the High Court judge for improperly conflating the fall-back position (the potential fencing off of the land) with the existing obligations under Policy CFS/12. It reaffirmed that the ability to fence the land in the future does not negate its current status as open space under the policy.

Impact

This judgment reinforces the stringent application of open space preservation policies within urban development planning. By upholding the inspector’s decision, the Court of Appeal sends a clear message that policies like CFS/12 hold significant weight and that potential future actions by landowners (such as fencing) do not diminish the current obligations to preserve open spaces.

For developers, this emphasizes the necessity of thoroughly addressing open space requirements and ensuring that any loss is adequately compensated with equivalent or superior alternatives. For local authorities, it underscores the importance of meticulous open space assessments and adherence to established policies to maintain community standards and environmental considerations.

Future cases involving similar disputes will likely reference this judgment, further entrenching the legal standards for open space preservation in urban planning.

Complex Concepts Simplified

Outline Planning Permission

Outline planning permission is an initial approval granted by local authorities that outlines the general parameters of a proposed development, such as the number of dwellings and general layout, without detailed specifications. This allows developers to secure a commitment before committing resources to detailed planning.

Policy CFS/12

Policy CFS/12 is a specific guideline within the Conwy Local Development Plan that regulates which developments can encroach upon public open spaces. It requires that any loss of open space must be justified by over-provision in the community or by providing an acceptable alternative nearby.

Open Space Assessment (OSA)

An Open Space Assessment is a document that evaluates the current state of public open spaces within a community, identifying existing spaces, usage, deficits, and informing development plans to ensure sustainable preservation and provision of recreational areas.

Unilateral Undertaking under s.106 of the 1990 Act

This refers to a commitment made by a developer to provide certain facilities or contributions (such as public open space) as part of their development project, ensuring that community needs are met even as development proceeds.

Fall-back Position

A fall-back position is an alternative plan that a developer might implement if certain conditions are not met or if part of the development plan faces obstacles. In this case, Renew proposed fencing the land to negate its use as public open space if necessary.

Conclusion

The Court of Appeal's decision in Renew Land Developments Ltd v. Welsh Ministers reaffirms the judiciary’s role in upholding stringent planning policies aimed at preserving public open spaces amidst urban development pressures. By validating the inspector’s refusal based on Policy CFS/12, the court emphasizes the necessity of maintaining community open spaces unless compelling alternatives are provided.

This judgment serves as a pivotal reference for future urban planning cases, ensuring that the preservation of public amenities remains a priority. It delineates the boundaries within which developers must operate and reinforces the accountability of planning inspectors in enforcing local development plans.

Ultimately, the case underlines the importance of balanced urban development that respects and preserves essential public spaces, thereby maintaining the quality of life and environmental standards within communities.