R (on the application of Bellway Homes Ltd) v Kent County Council

Town or village green – Registration – Trigger event – Interested party applying to register land as town or village green – Claimant developer contending application for registration invalid – Defendant local authority deciding right to make application not disapplied by “trigger event” in local plan policy – Claimant applying for judicial review – Whether “trigger event” within section 15C of Commons Act 2006 precluded making of application for registration – Application dismissed The Commons Act 2006 provided a right to apply for the registration of a town or village green (TVG) in relation to land which had been used as of right for “lawful sports and pastimes” for at least 20 years by a significant number of inhabitants of any locality, or neighbourhood within a locality. The 2006 Act was later amended so as to disapply the right to apply if one of a number of “trigger events” took place. One such event was where a development plan document identified the land in question “for potential development”. On 8 November 2019, an application was made to the defendant local authority, on behalf of the Two Fields Action Group, to register land at Two Fields, Westbere, Kent as a TVG under section 15 of the 2006 Act. Part of the application site was owned by the claimant developer. The claimant contended, among other things, that the application for registration was not validly made since policy OS6 of the Canterbury District Local Plan (which identified the land for potential development) provided a “trigger event” within section 15C (as set out in para 4 of schedule 1A to the 2006 Act) which precluded the making of such an application. Having taken sound legal advice, the defendant concluded that a trigger event had not occurred. The claimant applied for judicial review of that decision. The central issue was whether land included in a “green gap” to which policy OS6 applied was to be treated as having been identified by that plan for potential development. Held: The application was dismissed. (1) The interpretation of development plan policy was ultimately a matter of law for the court. The development plan itself had to achieve the identification of a defined area for potential development. “Identify” meant to establish the identity of, or to establish what a given thing was, or to recognise. “Potential” was a very broad concept. It was not qualified. It was not to be equated with likelihood or probability. It could include, but need not be, a site-specific allocation for a particular development. The site of an application to register under section 15(1) might form part of a larger area identified for potential development, but that land had to be “specifically identified” by the development plan. Such identification might be achieved in a number of ways. The land might be shown by a line on a map in the plan. It might be identified by a verbal description of an area or described by reference to prescribed criteria. The mere fact that land was shown as being included within a settlement boundary was insufficient to suspend the right to apply to register a TVG. That depended on the consequences as set out in the development plan of the land being included within that area. The important question was whether that plan identified the land “for potential development”: R (Cooper Estates Strategic Land Ltd) v Wiltshire Council [2019] EGLR 29 followed. (2) In the present case, the question was whether the development plan, on a proper interpretation, fell within the ambit of para 4 of schedule 1A to the 2006 Act. That involved the application of the legislation, properly understood, to the relevant policies. The interpretation of development plan policy was ultimately a matter of law for the court. The court did not approach that task with the same linguistic rigour as it applied to the construction of a statute or contract. It had to seek to discern from the language used in formulating the plan the sensible meaning of the policies in question, in their full context, and thus their true effect. The context included the objectives to which the policies were directed, other relevant policies in the plan and the relevant supporting text. The court would always keep in mind that the creation of development plan policy was a means to the end of coherent and reasonably predictable decision-making in the public interest: Canterbury City Council v Secretary of State for Communities and Local Government [2019] EWCA Civ 669; [2019] PLSCS 74; [2019] PTSR 1714 considered. (3) The statutory test was whether land was identified for “potential” development.  “Potential” meant “possible as opposed to actual; having or showing the capacity to develop into something in the future”: Oxford English Dictionary. A realistic, rather than theoretical, approach had to be taken to whether a development plan identified an area of land for potential development, given that the effect of section 15C was to exclude the right to apply to have a TVG registered for the benefit of the inhabitants of a locality or neighbourhood. An essential question was whether it was the meaning and purpose of the development plan (or according to the claimant’s case policy OS6) to identify the relevant land for potential development. The object of policy OS6 was to protect green gaps, which were at risk of coalescence, even from some minor forms of development such as might often be found in the countryside. Generally, a proposal could only be compliant with that policy if it would not significantly affect the open character of the green gap, or lead to coalescence between existing settlements, or result in new, isolated and obtrusive development in the gap. On any view, policy OS6 imposed a relatively strict form of development control and did not amount to any positive encouragement of development. (4) Properly understood in the context of its accompanying explanatory text, policy OS6, whether read as part of the development plan as a whole or in isolation, did not identify land in the green gaps for potential development. Accordingly, the defendant was entitled to a declaration to the effect that the application site did not fall within para 4 of schedule 1A to the 2006 Act and the defendant had jurisdiction to determine the application to register a town or village green. Douglas Edwards KC and Philip Petchey (instructed by Winckworth Sherwood LLP) appeared for the claimant; Tim Buley KC (instructed by Invicta Law, of Maidstone) appeared for the defendant; Richard Honey KC and Michael Rhimes (appearing pro bono and instructed by Kent Law Clinic) appeared for the interested party. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Bellway Homes Ltd) v Kent County Council