Renew Land Developments Limited sought to build 80-100 homes on land comprising of a former quarry currently in commercial use, an area of pasture land and a grassed area used as a play space. The Council refused the application which was then appealed with the Council’s decision upheld by a planning inspector dismissing the appeal in August 2018.
The Inspector dismissed the appeal on the ground that the development would result in the loss of open space in conflict with development plan policy. The policy provided that permission should not be granted for developments resulting in the loss of open space unless acceptable alternative provision was being made. The adopted policy provided that open space could be in either public or private ownership. The council’s open space assessment provided a quantitative assessment of open space. It explained that not all open space was owned by the council but noted that land in private ownership only counted if a “formal agreement’ existed to make it available for public or dual use. It described the play space on the site as “informal”.
Renew challenged the decision arguing that as the site was in private ownership the landowner could restrict access to the open space and prevent it from performing its function as a play space. The land would then remain undeveloped and only hold visual amenity value as open space. The High Court allowed the challenge and overturned the inspector’s decision holding that the Inspector should have accepted that “the landowner both could and would fence the relevant land” preventing it from being open space for public access.
The Court of Appeal overturned the decision on the ground that “the land was open space for the purposes of the policy” at the time of the decision and, therefore, the inspector was correct to proceed on that basis. The accepted fact that the landowner could exclude the public from his land did not mean that the land was anything other than open space. The Court held that the description of the play space as informal related to the nature of the use not to the arrangements for access.
Welsh Ministers v Renew Land Developments Limited raises issues for both developers and local authorities. It is essential for a developers and land owners to monitor both local plans and emerging background evidence based documents. In order to win an appeal where informal open space is being made available to the public it may be necessary to physically close off the open space before submitting an application. Conversely, local authorities will need to distinguish between public open space and open space in local plan policies and protect both the accessibility and visual benefits of the land. In some cases if there is a desire to secure permanent public access or visual amenity then the best way to do so may be by acquisition, perhaps using compulsory powers.