R Goodman v Secretary of State for Environment Food & Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 30 July 2015 |
| Neutral Citation | [2015] EWHC 2576 (Admin) |
| Docket Number | CO/12628/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 July 2015 |
[2015] EWHC 2576 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Dove
CO/12628/2013
Miss Caroline Daly (attended on 30 July) (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Claimant
Miss Lisa Busch (instructed by Government Legal Department) appeared on behalf of the Defendant
Introduction
Eastern Fields is an area of largely open land within Exeter. It is owned by Exeter City Council ("the Council"), having been assembled by means of two purchases. The first, in 1951, was the purchase of the lion's share of the area for recreation and playing field purposes. The second purchase in 1990 was the acquisition of former private railways siding land which was bought "to provide a comprehensive solution to traffic problems in the locality".
The genesis of this acquisition appears to have occurred a little earlier in the 1980s. The Exeter Local Plan, adopted by the Council on 26 November 1984, contained a proposal that broadly speaking the most southerly third of Eastern Fields should be allocated for employment use and a link road proposal to provide better access for industrial traffic to industrial areas in the vicinity.
On 26 September 1989 the Council's Policy Committee formally appropriated the land from a recreation use to be held for development purposes and then disposed of for industrial use. In accordance with the requirements of Section 122 and Section 123 of the Local Government Act 1972, this most southerly portion of the area, which had been allocated and resolved to be appropriated, went through an advertisement procedure prior to the completion of the appropriation in order to consult the wider public about that proposed appropriation and disposal. The allocation of the most southerly portion of the land was carried forward in the Exeter Local Plan First Alteration adopted on 15 November 1983 and also the Exeter Local Plan First Review adopted on 31 March 2005. In the public inquiry process pertaining to that Local Plan First Review document there were objections mounted to the proposals in respect of the southerly portion of the land which was allocated which were resolved by the Inspector who provided his report to the Council on the basis that the Council "must still consider that there is some prospect of the site being developed within the plan period".
In the most recent iteration of the forward planning process, the Council's Core Strategy recorded at Policies CP1 and CP2, that the employment allocation was again reaffirmed albeit not in a site-specific manner. In July 2012 the Council consulted the public about their Site Allocations and Development Management Development Plan Document which included the retention and continuation of the allocation of the southern third of Eastern Fields for employment development and the construction of the link road, to which I have alluded above.
By this time, on 1 September 2011, an application had been made to Devon County Council to register the whole of Eastern Fields as a town or village green. The application was passed by Devon County Council to the Planning Inspectorate to make the decision as they were at the time a "pilot" area for the purpose of the Commons Act 2006. An inspector held a public inquiry starting on 5 March 2013 at which the claimant gave evidence in support of the application (called as a witness by the applicant). The Council appeared at the inquiry as the principal objector to the proposal. They called Mr Short who gave evidence about the planning history and who spoke of the significance in planning terms of both the link road and also the employment site as follows:
i. "Importance of the link road and employment allocation
ii. 15 The highway authority considers the Exhibition Way link road to be an essential part of the highway strategy for the Pinhoe area. Over 600 homes have been approved at Pinhoe Quarry and Ibstock Brickworks in the expectation that it can be delivered. Without the link road, traffic will utilise the sub-standard Chancel Lane, the narrow Harrington Lane bridge, two mini roundabouts in the centre of Pinhoe that are subject to peak hour congestion and a wider constraint on development north of Pinhoe. A letter from Devon County Council, the Highway Authority, on the importance of the link road is at tab/20 and a letter from the Exeter and Heart of Devon Growth Board at tab/21. If the link road cannot be delivered the financial contribution from Pinhoe Quarry may need to be returned and that from Ibstock Brickworks used for less effective traffic solutions to mitigate the impacts of the development. The Pinhoe Quarry and Ibstock Brickworks sites constitute over one year's housing land supply at the average Core Strategy rate of 600 homes per annum. The sites are an essential component of the Council's five year housing supply and of the supply for the plan period to 2016.
iii. 16 The employment allocation of 3 hectares at Eastern Fields represents about 12.5% of the 24 hectares proposed to be allocated in the City in the Site Allocations and Development Management document. It is the only site that is in Council control and therefore potentially available to meet the needs of businesses that may need to be relocated as part of other planning strategies for the City."
In relation to the land comprised in the application as a whole at Eastern Fields, the Inspector concluded on the evidence that it had been used by a significant number of inhabitants of the claimed locality, Pinhoe ward. Apart from the site of two small electricity sub-stations within the application land, this use had continued on the land for at least twenty years. The nature of the use had been one for lawful use and pastimes. The key question was whether the use had been "as of right" or "by right". In relation to the balance of the land not included within the employment allocation or the former railway sidings, the Inspector was satisfied that the use was by right as a consequence of that land continuing to be held as open space throughout the relevant period.
This conclusion was an issue originally identified as ground 1 in the challenge before me and applied to the whole of the land comprised the application. That ground was withdrawn in the light of the decision of the Supreme Court in Barkas v North Yorkshire County Council [2014] UKSC 31. The focus of this case now is the Inspector's conclusions in relation to the land which had been appropriated for development and the link road proposal and the former railway sidings land acquired for highway purposes identified in the Inspector's report set out below as amounting to 6.6 acres.
Having set out the Council's treatment of the land recorded above, the Inspector recorded the parties' contentions and his conclusions as follows:
i. "83 ECC argued, however, from evidence of how the application land was used and managed after 1989, that it could be inferred that there had been a re-appropriation of the land to open space purposes. The evidence showed, it stated, that there had been a nationwide recession in the early 1990s, that there was then no demand from industry to take up any of the 6.6 acres which had been appropriated, and that money to fund the required infrastructure including the new road (paragraph 60 above) was therefore not forthcoming. The possibility that this land would be disposed of for industrial development was 'confined to history' by 1991. The whole of Eastern Fields continued to be managed by the Parks and Open Spaces Committee (or one of its predecessors) and money was spent on it in connection with its use as open space. There was judicial authority (albeit obiter) that appropriation did not need to be express. Within a few years of 1989 the 6.6 acres could be considered to have been re-appropriated to open space use.
ii. …..
iii. 85 The principal points of evidence relevant to what took place after 1989 are as follows. A report to ECC's Property Group (an officer group) in October 1990 noted, concerning the withdrawal of a potential occupier of the 6.6 acres:
iv. 'In the current property market, the return required by the Council for the site necessary to meet the infrastructure requirements was too high to be competitive.'.
v. In 1991, however, the Economic Development Committee noted that:
vi. 'The City Council are progressing the development of land, including infrastructure improvements, at Eastern Fields, off Exhibition Way, Pinhoe, for industrial development.'
vii. 86 A report to the Property Sub-committee about the short term lease of the compound on the southern edge of Eastern Fields (paragraph 42 above) in May 1992 referred to the possibility of development of the 6.6 acres becoming feasible. In May 1993 a note to the Property Group referred to the possibility of: 'early redevelopment of this potential industrial site …..'
viii. 87 However, an internal ECC memorandum in 1992, in relation to a small area within the 6.6 acres leased temporarily as a trailer park asked:
ix. 'Is the trailer park still public open space?'
x. Another internal memorandum from 1993, about the same or a nearby piece of land, referred to that area of Eastern Fields as public open space. 1995 documents relating to the lease of the compound just north of the railway bridge referred to the client committee as the Leisure Committee.
xi. 88 This evidence seems to...
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