Wiltshire Council v Cooper Estates Strategic Land Ltd and Richard Gosnell, Royal Wotton Bassett Town Council  EWCA Civ 840
The Court of Appeal has considered the question of the interpretation of the “trigger event” within paragraph 4 of Table in Schedule 1A of the Commons Act 2006 and in dismissing the appeal of Wiltshire Council has confirmed the judgment of the High Court in this matter [Cooper Estates Strategic Land Limited v Wiltshire Council  EWHC 1704 (Admin)].
Section 15C of the Commons Act 2006 restricts the right to register land as town or village green, (“TVG”), and provides that the right to register it as a TVG ceases to apply if an event specified in the Table has occurred in relation to the land (“a trigger event”).
The trigger event in issue and relied upon by the objector against the registration authority, Wiltshire Council, was that a development plan document, adopted under the provisions of the Planning and Compulsory Purchase Act 2004, had identified the land for potential development .
The case concerned an application to register land at Vowley View, Royal Wootton Bassett as a TVG in April 2016. Wiltshire Council, as registration authority investigated whether any trigger events applied and having considered that there were none, the land was registered in October 2017. Cooper Estates, the owner of the land, successfully challenged the registration in the Administrative Court on the basis that the trigger event provided by paragraph 4 had occurred. Wiltshire Council appealed that decision to the Court of Appeal.
There was no dispute that a relevant development plan document was in existence namely the Wiltshire Core Strategy adopted in 2015. For the purposes of the development plan, the land was within the settlement boundary of Royal Wotton Bassett. Two polices of the Core Strategy were material to the determination of the matter:
Core Policy 1 (“CP1”) was the settlement strategy which identified the settlements where sustainable development would take place including Royal Wotton Bassett.
Core Policy 2 (“CP2”) provided that within those settlements there was a presumption in favour of sustainable development.
The issue before the Court was whether policies CP1 and CP2 taken together identified the land for potential development and the question this posed was “what does it take within a development plan document to identify land for potential development?”
The Court considered the matter in a two stage approach:
- Was the fact that the land was within the settlement boundary sufficient to identify it as a parcel of land? In respect of this issue, the Court had no difficulty in concluding that the settlement boundary, within which the land was included, was sufficient to identify it.
- The next question which the Court considered was whether on the application of the specific polices of the development plan, the land had been identified for potential development? With regard to this the Court emphasised that the trigger applied to “potential development” and not a more restrictive approach of being identified for development. On the specific wording of the relevant policies, the Court considered that CP1 identified “the settlements where sustainable development will take place.” CP2 provided that within the settlement boundary “there is a presumption in favour of sustainable development.” The Court considered that by reason of CP1 and CP2 the land was land to which the presumption of sustainable development applied. Accordingly, the Court considered that land within the settlement boundary was developable land. The Court took the view that it was not for the registration authority to consider whether planning permission would in fact be granted, just whether there was the potential for development. Therefore the conclusion was that it had been identified for “potential development” and paragraph 4 applied.
With regard to the second issue, the Court did not rule out the possibility that in certain cases there could be policies of a development plan which indicate that a specific parcel of land would not be developable even though it was within a settlement boundary to which a presumption in favour of development applied. However, the Court noted that in this case, Wiltshire Council did not rely on any countervailing policy which contradicted policies CP1and CP2.
It seems that following this decision a number of consequences may follow:
- For those seeking to object to land being registered as a TVG the possibility now exists to investigate whether the land is identified in any development plan policy as being potentially developable. From the decision itself, if it is within a settlement boundary then this will be sufficient to identify the land in question and the only issue to then be explored is whether there is a policy or policies which identify the land as having the potential for development. There is no need to show that planning permission would be granted.
- For registration authorities it seems that the decision may now cause further work in investigating whether a trigger event has occurred. The Court of Appeal considered that whilst on the case before it there was no suggestion that in respect of the specific land there was any countervailing policy to the presumption in favour of sustainable development, there could be cases whereby such presumptions of potential development could be contradicted by other development plan policies. Therefore, whilst there is no need to consider whether planning permission would be granted, there seems to be a requirement to look at all the policies of the development plan to see if any might suggest that the land in question was not potentially developable. The extent to which any policies may undermine the land’s potential for development and therefore the ability to rely upon paragraph 4, would seem to depend on the interpretation of those specific policies on a case by case basis.
- For those seeking to protect land by registration as a TVG, the decision could present additional problems to an already difficult process. The fact that land is sufficiently identified if it is caught within a settlement boundary would possibly apply to most situations where a TVG application was being made. Indeed, part of the case made by Wiltshire Council was the fact that by its nature a TVG was land used by inhabitants of a neighbourhood or locality and in most cases these will be the inhabitants of a settlement. Many development plans may have a presumption in favour of sustainable development which could then be relied upon to object to registration.
Finally, on a more general note, as a matter of policy, the Court of Appeal seems to have resolved the question of any ambiguity in interpretation of a trigger event in favour of those wishing to object to the registration of land as a TVG. This may set the tone for any interpretation of other ambiguities within the list of trigger events which may arise in the future.