Town or village green – Registration – Trigger event – Respondent applying to quash decision of appellant commons registration authority to register land as town or village green – High Court granting application – Appellant appealing – Whether “trigger event” within section 15C of Commons Act 2006 precluding making of application for registration – Appeal dismissed
The appellant, as the commons registration authority, registered certain land as a town or village green on the application of the first interested party, made pursuant to section 15(1) and (3) of the Commons Act 2006. The land was an irregularly, triangular shaped area of some 380 sqm adjacent to Vowley View and Highfold, Royal Wootton Bassett and appeared to be an amenity space in an establishing area of housing, or at least was so until the fencing and gate, which had been installed by the respondent in 2006, was locked in 2015. The respondent, as the owner of the land, having unsuccessfully objected to the application, applied to quash the decision to register and the consequential registration.
The respondent contended, amongst other things, that the application for registration under section 15 of the 2006 Act was not validly made since policies CP1 and CP2 of the Wiltshire Core Strategy 2015 (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. Therefore, the appellant had erred in law in determining that the application was valid, in approving it and in registering the land.
CP2 in particular, which concerned direct development to specific categories of settlement including market towns, specifically created “a presumption in favour of sustainable development” within the boundaries of a number of types of settlement, including market towns though excluding small villages, which went a stage further than merely identifying such locations as having development potential. The presumption applied within the defined boundaries of the settlement and could be contrasted with development “outside the defined limits of development” which would normally not be permitted. Since the land in this case lay within the defined limits of Royal Wootton Bassett, it was “identified” because it fell within the classic means of defining areas to which policies applied, namely within a line shown on a plan. The High Court granted the application: [2018] EWHC 1704 (Admin); [2018] PLSCS 129.
The appellant appealed. The key issue on appeal was whether the land had been identified for potential development.
Held: The appeal was dismissed.
(1) It was common ground that it was not a requirement of the trigger event that only the land in question was identified. It might be part of a larger identified area. The sense of the word “identifies” was plainly the ordinary English meaning of the transitive verb “to identify”, namely to “establish the identity of; establish who or what a given person or thing was; recognize” (The New Shorter Oxford English Dictionary (1993)). To construe the word “identifies” as if it meant “confirms the identification of” or “acknowledges” or “provides policy or guidance for” would be to rob it of its true sense in its statutory context. The trigger event was not that the land in question had been identified for development; but that it had been identified for potential development. Potential was a very broad concept, was not qualified, and was not to be equated with likelihood or probability: West Kensington Estate Tenants and Residents Association v Hammersmith and Fulham London Borough Council [2013] EWHC 2013 (Admin); [2013] PLSCS 237 followed.
(2) There was no difficulty in identifying the land in issue as being land within the settlement boundary drawn on the map, to which policies CP1 and CP2 applied. Therefore, the land had been identified by the development plan document. Nevertheless, the mere fact that land was included within a settlement boundary was not enough to suspend the right to apply to register a TVG because suspension of the right depended on the consequences, as set out in the development plan document, of land being within a settlement boundary. The question was whether the development plan document identified the land for potential development. The acid test was whether there would ultimately be a form of development on the land that would be acceptable. The land in issue had to be the subject of an allocation or something of essentially the same nature. The question was whether it had been identified for “potential” development.
In the present case, the development plan document showed that the land was identified for potential development. CP1 identified “the settlements where sustainable development will take place”. CP2 provided that within the settlement boundary there was a presumption in favour of sustainable development. Those policies clearly identified the land as having potential for development. The explanatory text necessarily implied that land within the settlement boundary was already developable land.
(3) It was clear from the development plan that the planning authority envisaged that during the currency of the development plan over 1,000 new homes would be needed in Royal Wootton Bassett. To allow a registration of a TVG within the settlement boundary would frustrate the broad objectives of the plan. That was why Parliament decided that, in circumstances like the present, a TVG should not be registered; but, instead, the question of development should be left to the planning system.
(4) There was no concept of “balance” to be implied into para 4 or section 15C. Those provisions had been overlaid on the scheme of the 2006 Act by the amendments made by the Growth and Infrastructure Act 2013. Parliament undoubtedly intended to make a change in the law. The only balance, if such it was, was the one struck by Parliament through the provisions and seeking to protect future development opportunities against the effect of section 15 applications. If those provisions applied, according to their language and purpose, then the right to apply was excluded. Their extent was defined primarily by the language used, supported by the mischief they sought to address. As a matter of language para 4 applied and that was reinforced by the purpose, namely to prevent a section 15 application from hindering potential development of the land.
Paul Brown QC and Stephen Morgan (instructed by Wiltshire Council Legal Unit) appeared for the appellant; Gregory Jones QC and Philip Petchey (instructed by Blake Morgan LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Cooper Estates Strategic Land Ltd) v Wiltshire Council
