Planning inspector’s refusal flawed in considering loss of existing open space

19 Apr 2016

A Planning Inspector’s decision to refuse the grant of planning permission for 80-100 homes was quashed by the High Court in the case of Renew Land v Welsh Ministers [2019] EWHC 742 (Admin).

Planning permission was refused by the Council in the first instance on a number of grounds, including a failure to provide adequate open space.  A local planning policy sought to prevent the loss of existing open space in new developments.  The application site was large (approx. 4.41ha) and the proposal would have built over an existing 0.85ha area of informal amenity land used for ball games and play.

The developer appealed to the Planning Inspectorate.  As part of that appeal, the developer:

  1. argued that the existing 0.85ha open space was not caught by the re-provision policy.They referred to the local policy’s definition of open space which included areas not owned by the Council but subject to a formal agreement for their public use: the existing open space was in private ownership and could be fenced off at any time since there was no agreement in place.

  2. put forward a s106 unilateral undertaking to provide 0.85ha play space on the site.

The Inspector still refused the appeal.  One reason was that there would be an unacceptable loss of public open space, although the Inspector had also accepted the “fall-back” position that the open space land could be fenced off.  The High Court found this to be both irrational and an error of law; since there was no agreement for public use and the landowner could fence it off at any time, the relevant local policy was not engaged.

The High Court said that it was irrational to conclude that there would be an unacceptable loss of public open space where there would be an entire loss of informal open space and provision of formal open space through s106.

This decision will be of interest to developers of sites in areas where open space provision or retention is a policy requirement.  Although the situation in each case will be site and policy specific, this case highlights the principles of properly considering whether the relevant policies are engaged as a matter of fact and the rationality of decision-making on the facts of the case.

DMH Stallard’s Planning team is a multi-disciplinary group of specialist lawyers and consultants who are able to advise on all aspects of planning from applications to appeals as well as environmental issues.
For more information and advice on any planning matter, please contact Chloe Karamian or any member of the team.

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