Section 15(1) of the National Parks and Access to the Countryside Act 1949 defines a “nature reserve” as “(a) land managed solely for a conservation purpose, or (b) land managed not only for a conservation purpose but also for a recreational purpose, if the management of the land for the recreational purpose does not compromise its management for the conservation purpose”.
Under section 21 of the 1949 Act, county and district councils are empowered to provide or secure the provision of nature reserves on any land in their area. That power can be exercised only in consultation with English Nature or its Welsh or Scottish equivalent. Once a local nature reserve has been designated, the council can make byelaws to protect it.
In Western Power Distribution Investments Ltd v Cardiff City Council [2011] EWHC 300 (Admin); [2011] PLSCS 60, the council had designated land as a local nature reserve to be managed for the purposes contemplated by section 15(1)(b) of the 1949 Act. However, the council already held the land in question on a statutory trust for the public under section 164 of the Public Health Act 1875, which allows land to be acquired “for the purpose of being used as public walks or pleasure grounds”.
The claimant challenged the designation of the local nature reserve under section 289 of the Town and Country Planning Act 1990. It contended that: (i) the statutory regimes of the 1875 and 1949 Acts conflicted, because of the primacy that the former accorded to public access and recreation and the latter to nature conservation; and (ii) even if such conflict was not inevitable, it would arise in this case because of the way in which the local nature reserve would be managed.
The court allowed the claim. Ouseley J refused to make a declaration that such conflict was inevitable, holding that a nature conservation interest might in practice be preserved by measures that did not compromise public access or recreational enjoyment of the land. However, he concluded that, in this case, a conflict had arisen in a way that could not lawfully be resolved. He quashed the designation of the land as a local nature reserve.
As counsel for the claimant pointed out, the council would have been better advised to use section 122 of the Local Government Act 1972 to take the land out of the 1875 Act trust before designating it as a local nature reserve.
John Martin is a freelance writer
