Leading barrister calls for better protection of Welsh language in planning decisions
The barrister who put a stop to the development of 401 homes in Aberdyfi calls for better protection of the Welsh language.
The same strict rules that are afforded to environmental assessments should be applied to the Welsh language when deciding on planning applications, according to one of Wales’s top barristers.
Gwion Lewis KC successfully represented Eryri National Park Authority against Hampshire-based Hillside Parks Ltd. in the Supreme Court in London.
In a planning dispute dating back more than 50 years, this was Hillside Parks’ final attempt to cover the Balkan Hill area of Aberdyfi with 401 luxury homes.
The case dates back to 1967, when the former Meirionnydd County Council granted planning permission for the construction of 401 houses. Between that year and 1973, seven additional planning applications were granted on the Aberdyfi site. By 1996, the planning issue had become the responsibility of the national park.
Nation.Cymru asked Anglesey born Lewis: What can Welsh Government, Local Authorities and National Parks do to safeguard Welsh communities from developers from outside?
He said: “The most important thing that needs to be done now, that hasn’t already been done, is to significantly tighten the rules in how to assess what effect a planning application has on the Welsh language.”
In comparison, Lewis explains, “We have very strict rules on how to assess what environmental effect a housing estate has, which is appropriate. Many documents will be put together so that the community will understand what effect the planning permission may have on the environment and ecology.”
For some reason, Lewis states, “We don’t afford the same respect to the Welsh language. The rules and policies are very thin on the ground when it comes to how you assess the effect on the Welsh language. In my opinion, this results in planning permission given to large housing estates on the basis of very weak Welsh language impact assessments.”
This often results in assessments that don’t provide a true picture according to Lewis: “As well as claims that imply how easy it would be to mitigate the effects on the Welsh language, and especially the use of Welsh in the community. I do believe that much more needs to be done, to tighten, and add to the rules. There is no reason or principle why someone would treat the Welsh language as less important than environmental matters when it comes to planning applications.”
He says the judgement given by The Supreme Court on November 2 is an important one because: “It makes it more difficult for developers to try and change planning permissions for large housing estates.”
Hillside Parks was first given planning permission in 1960’s.
“But!” explains Lewis, “The developer then tried to change that permission over the years. Indeed, they were granted several further small-scale planning permissions for parts of the site. They then tried to change what they wanted to do and attempted to return to the original planning permission.”
According to Lewis, this is something developers often do, “They try to have it both ways … then try to argue that they can then revert back to the original planning permission.”
But the courts disagreed with Hillside Parks and said: “No – the acceptable way to get around it is to apply for a new planning permission for the whole site. This is significant because it strongly implies that developers will have less flexibility in the future to try and change what they want to do in large housing estate developments.”
This case withing the Eryri National Park is a prime example of one of many historical planning permissions given, before environmental protection was put in place to defend parts of rural Wales.
“This particular planning permission was given prior to the land becoming part of the (Eryri) national park. In Wales, not only do you sometimes have planning permission given before the parks were established, but also before Areas of Outstanding Natural Beauty (AONB) were established.”
It is important to point out, says Lewis, that the Eryri judgement is really only significant for planning permissions dating back, probably 15 to 20 years.
“Because it was then that major changes were introduced to the planning system in order to better defend the land. In Wales and England, much more is being done now to defend sensitive land, especially in rural areas. The land afforded the most protection is that which is in national parks or are AONB’s.”
Lewis concludes that is it therefore unlikely that this decision is significant for sites that don’t have historical planning permission in place.
“What makes the Eryri and Aberdyfi case unusual is that you had a developer that was willing to go so far as The Supreme Court in order to try and establish that historical right once again.”
Lewis confirms that the driving factor behind the developer’s reluctance to give up is because the Hillside Parks development consisted of very large and expensive homes.
41 of the planned 401 houses have already been built on the Balkan Hill site overlooking Aberdyfi. According to paperwork filed with the courts “… lanes were built in areas designated for housing, and houses were built in areas designated for lanes …”
However, Lewis explains, there are two reasons why this will not have to be put right.
“Since these 41 houses were built on the basis of several planning permissions given more recently, those houses are safe. In essence, that was what the whole case was about. There was conflict between this and the original planning permission.”
The second reason being he explains: “It appears that there are a small number of houses on site that have been built without any planning permission whatsoever. But – the rule of law states that if you build a house without planning permission, the planning authority has four years to try and bring a case to change, or demolish, the house. In this case, more than four years have passed since these small number of houses were built. Those houses therefore are safe, but it won’t be possible at this point in time to do (develop) the site further.”
Gwion Lewis KC works for Landmark Chambers. The London based firm were awarded the Planning/Environment Set of the year at the 2021 Chambers Bar Awards.
The wider implications of The Supreme Court judgement should not be underestimated. Websites popular with barristers and other legal experts, as well as sites favoured by planning professionals, are all covering the news.
So how does it feel for an Anglesey born man to have had such an effect on planning law in Wales?
Lewis laughs and then says: “One thing that makes me proud is that it’s one of the most important planning cases to be the subject of a court judgement in about 10 – 15 years. It’s probably the most important planning case to go through the courts perhaps this century, I would say – up to now. What makes me very proud is that it is a case that involves Wales, and a site in Wales.”
Hampshire-based developer Hillside Parks appealed against the original High Court judgement as well as the subsequent Court of Appeal judgement to reach The Supreme Court.
“It was challenging having to defend the national park in three courts. This was because the developer had, more or less, the support of the whole sector in The Supreme Court. Many developers and solicitors working for developers were in The Supreme Court to give their support. There was an element of a David v Goliath battle about it. Obviously, we were a public authority, doing the best we can with the resources we had. The fact that we were successful is something to be proud of.”
Eryri National Park Authority first approached Lewis in 2015, asking for advice. The case had already been to court in 1987 when Gwynedd Council was responsible for the site. The council had lost.
“The history was a difficult one but I advised Eryri to take a different approach and a different legal strategy. This meant we used different legal arguments that Gwynedd Council had used in 1987. And that was a very brave thing for Eryri to do, because one of the many arguments we had to win was that we had the right to submit different arguments to those of Gwynedd Council in 1987.”
The judgement given on November 2 in the Hillside Parks Ltd (Appellant) v Snowdonia National Park Authority (Respondent) runs to 34 pages. It can be seen on The Supreme Court website.
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