Berry Smith’s Property Litigation Team has recently represented a national property developer in the Court of Appeal, in a case which provides significant clarification on the nature of planning law for proposed retail developments in Wales.
Our client proposed to develop a local motorway petrol station into a full roadside service area. However, in August 2016, the Planning Inspector refused the application for planning permission.
Berry Smith was instructed by the developer to judicially review the decision of the Inspector. On the failure of this application, Berry Smith was then instructed to appeal the decision of the High Court to the Court of Appeal.
National planning policy is contained in the Government document “Planning Policy Wales” (currently in its ninth edition from 2016) and is supplemented by planning strategies issued by local Councils.
These policies establish a hierarchy of preferable locations for proposed retail developments i.e. city centres first, then edge of centres, followed by out of centre proposals and finally out of settlement proposals.
The proposal in question was an ‘out of settlement’ proposal, meaning that the development would not be permitted unless “it is associated with the provision of… infrastructure… that cannot reasonably be located elsewhere”.
The Inspector had rejected our Client’s proposal on the basis that (1) a need for the development was not established in the application and (2) even if there was a need, there was a suitable, preferable site for the development nearby.
Our Client argued that the Inspector had applied the relevant tests incorrectly.
Our Client submitted that the correct test required by PPW was a balancing of considerations for the purposes of a planning assessment. The issue of ‘need’ should simply be a material consideration for the purposes of the planning assessment, and its absence should not be fatal to a proposal. Therefore, where there is no need for a development, then the test of whether the site is preferential to other alternatives should not be discarded.
However, the Court concluded that, for retail developments outside of retail / commercial centres, there is an initial, discrete requirement for a need to be established which, if it is not satisfied, the proposal will be in breach of PPW. Only if need is established will other preferable sites and material factors (such as retail impact) be considered.
The Court ruled that this is the approach taken in the development of overall planning policy and should be applied when deciding individual planning applications, and that, when considered as a whole, the wording of PPW supported this test. It was decided that need was more than just a material consideration and there was nothing in PPW which “positively indicates that need is not a discrete requirement”.
Our Client’s argument was made more difficult by the fact that previous planning policy in England also adopted this approach. However, in 2009, the English test changed so that need is no longer a distinct requirement.
The Court confirmed that it did not consider English and Scottish case law to be useful in interpreting PPW because those cases concerned different national policies. Indeed, Lord Justice Hickinbottom commented that “the policy relevant to need on an application for planning permission for retail use in Wales is significantly different from that in England”. This is a result of the devolved nature of planning law in the UK.
Interestingly, this divergence appears likely to grow wider, with the Welsh Government required by the Planning (Wales) Act 2015 to prepare a National Development Framework for Wales. Hickinbottom LJ went as far as to say that it would be “dangerous” to assume that Welsh and English planning policy are the same. Following this decision, it is likely that this divergence will only accelerate in years to come.
The Property Litigation Team instructed Mr Gwion Lewis of Landmark Chambers and was lead in the case by Iwan Doull.
If you would like more information about the issues raised in this article or any aspect of dispute resolution, please do not hesitate to contact us at 029 2034 5511 or idoull@berrysmith.com.
