Nature conservation – National Parks and Access to the Countryside Act 1949 – Defendants designating land as local nature reserve under section 21 of 1949 Act – Land held on trust for public access and recreation under section 164 of Public Health Act 1875 – Whether designation as nature reserve unlawful – Whether statutory regimes of 1875 and 1949 Acts conflicting owing to different priorities of recreation and nature conservation respectively – Whether such conflict arising on facts of case – Claim allowed
The defendant county council owned land that comprised areas of open space lying between and to the south of two reservoirs. The land was held on a statutory trust in favour of the public under section 164 of the Public Health Act 1875, which required the defendants to allow the public access for recreational purposes. In October 2009, the defendants decided to designate the land as a local nature reserve pursuant to section 21 of the National Parks and Access to the Countryside Act 1949. They proposed to manage the reserve in the manner contemplated by section 15(1)(b) of the 1949 Act, namely for conservation and recreational purposes, with the latter not compromising the former.
The claimant, a local landowner, owned the two reservoirs and the land immediately around them. As a result of the designation, its land was surrounded on three sides by the nature reserve and the claimant brought an appeal under section 289 of the Town and Country Planning Act 1990. It contended that the designation was unlawful because: (i) the statutory regimes of the 1875 and 1949 Acts were in inevitable conflict owing to 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 from the way in which nature reserve would be managed.
Held: The claim was allowed.
(1) There was a self-evident potential for conflict between the 1875 and 1949 Acts. The section 164 trust required the defendants to allow the public to use the land for public walks or as pleasure grounds, with restrictions and prohibitions on public access permitted only in the recreational interest, not for nature conservation purposes. In so far as restrictions were imposed to protect nature, that was permissible only in order to help fulfil the purpose of public walks and pleasure grounds. By contrast, recreational enjoyment of nature was permitted under the 1949 Act only to the extent that it did not compromise nature conservation. That was the reverse of the priorities under the section 164 trust. Despite the obvious potential for conflict in designations with two such different priorities, a conflict would not necessarily arise in practice. A nature conservation interest might in practice be preserved by measures that involved no real compromise on public access or recreational enjoyment of the land. Accordingly, the court would not declare the inevitability of conflict where land was designated as a local nature reserve and held on the trust under section 164.
(2) In the instant case, a conflict between the two designations had arisen. It was irrelevant that the defendants might have devised a management plan that embodied a reasonable compromise or a reconciliation between the two interests; the two Acts did not allow the defendants to manage the land in that way. The 1875 Act prohibited a restriction except for its own purposes, while the 1949 Act permitted no compromise of the interest of nature conservation in the interests of recreation. Unlawfulness would be avoided only if the conflict between the two designations could be, and was intended to be, managed in such a way that it was resolved conformably with both duties. That was not so in the instant case. The existence of conflict had to be tested by comparing the actual use made, and reasonably likely to be made, of the public walks and pleasure grounds with the nature of the conservation interest to be preserved and studied, and by examining the effect on the recreational use of avoiding any compromise of nature conservation. The defendants’ land was used for informal recreation. The habitats of nature conservation interest covered the main areas accessed by the public and the recreational use was clearly identified in the defendants’ management plan as being harmful to the interests of nature conservation. The defendants’ proposed solution involved restrictions on recreational use. While these measures might be sensible in the interests of nature conservation, they were not compatible with the section 164 trust because they would be imposed solely for the purpose of nature conservation, as an interest of value in its own right, rather than for the purpose under the section 164. If, on the other hand, the defendants’ solutions were not adopted, the land would not be managed, as required by the 1949 Act, as a local nature reserve. Accordingly, the potential for conflict between a section 164 trust and a designation under the 1949 Act had clearly arisen in the instant case in a way that could not lawfully be resolved.
John Steel QC and Robert Palmer (instructed by Geldards Solicitors LLP) appeared for the claimant; Mark Lowe QC and Harriet Townsend (instructed by Hugh James Solicitors, of Cardiff) appeared for the defendant.
Sally Dobson, barrister
