Countryside agency — National parks — Area of natural beauty — Opportunities for open air recreation — Whether inspector and landscape assessor applying correct statutory tests — Claim allowed
Under section 6 of the National Parks and Access to the Countryside Act 1949, the Countryside Agency had a duty to consider whether extensive tracts of the countryside met the criteria for national park status as set out in section 5(2) of the Act. These were to be assessed on the basis of: (a) the natural beauty of the areas; and (b) the opportunities that they afforded for open air recreation, having regard to their character and to their position in relation to centres of population.
The claimants managed an estate in the New Forest that included an area of land that had been designated as part of the New Forest National Park (NFNP) by the New Forest National Park (Designation) Order 2002. Following a public inquiry, an inspector appointed by the defendant secretary of state, having considered the landscape assessor’s report, recommended, contrary to the claimants’ objections, that the land in question should remain within the NFNP boundary. The defendant accepted the inspector’s conclusions and confirmed the order on 1 March 2005.
The claimants sought to quash the order, contending, inter alia, that the defendant had erred in law: (i) in not applying the test set out in section 5(2)(b) to determine whether there were “opportunities for open air recreation”, but instead employing a different test to ascertain “potential opportunities for open air recreation”; and (ii) in applying not the section 5(2)(a) test for the designation of “natural beauty” but the extended definition, applicable, under section 114(2), only to the management of national parks under section 5(1) once designated under section 5(2).
Held: The claim was allowed.
The inspector had erred in failing to consider whether there were “opportunities for open air recreation” but instead applying the vaguer test of “potential” opportunities for such recreation. Although it was true that circumstances might change and that, given the quality, scale and tranquillity of the landscape, future opportunities could arise for open air recreation, that was not what section 5 provided. The introduction of the word “potential” lowered the statutory threshold and was not a proper use of the statutory language. Moreover, the inspector failed to take account of the relevant consideration of parliament’s determination that land such as the appeal site was unsuitable for open air recreation under section 2(1) of the Countryside and Rights of Way Act 2000.
In deciding whether the land was an area of natural beauty within section 5(2), both the landscape assessor and the inspector had disregarded the requirement of a “high degree of relative naturalness” and had substituted a test of “visual attractiveness” that permitted a broader range of factors to be considered than was envisaged by section 5(2).
The restrictive powers in section 5(2) had to be read against factors to be taken into consideration in the context of an Act that was now 55 years old. If change was required to reflect a more up-to-date approach to the designation of areas of outstanding national importance (for example in the National Parks (Scotland) Act 2000), it was for parliament and not the Countryside Agency to extend the range of such criteria.
Robert McCracken QC (instructed by Lee, Bolton & Lee) appeared for the claimants; David Elvin QC and James Maurici (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
