The King on the application of Bellway Homes Ltd v Kent County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 14 October 2022 |
| Neutral Citation | [2022] EWHC 2593 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/245/2022 |
and
[2022] EWHC 2593 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/245/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Douglas Edwards KC and Philip Petchey (instructed by Winckworth Sherwood LLP) for the Claimant
Tim Buley KC (instructed by Invicta Law) for the Defendant
Richard Honey KC and Michael Rhimes (appearing pro bono and instructed by Kent Law Clinic) for the Interested Party
Hearing dates: 14 and 15 July 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 14 October 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives
Introduction
The Commons Act 2006 (“the 2006 Act”) provides a right to apply for the registration of a town or village green (“TVG”) in relation to land which has 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. One effect of the statutory protection given to a TVG is that most forms of development are precluded. Because of concerns that the TVG registration system was being used to prevent development proposed or approved through the planning system, the Growth and Infrastructure Act 2013 (“the 2013 Act”) amended the 2006 Act so as to disapply the right to apply to register land as a TVG if one of a number of “trigger events” takes place. One such event is where a development plan document identifies the land in question “for potential development”. The central issue in this case is whether land included in a “Green Gap” to which Policy OS6 of the Canterbury District Local Plan (“CDLP”) applies, is to be treated as having been identified by that plan for potential development.
On 8 November 2019 Lady Laws applied under s.15 of the 2006 Act to the registration authority, the defendant Kent County Council (“KCC”), to register land at Two Fields, Westbere, Kent as a TVG. The application was made on behalf of the Two Fields Action Group (“TFAG”). The western part of the application site is owned by the claimant, Bellway Homes Limited.
On 30 July 2020 the claimant sent a written submission to KCC that the adoption of the CDLP was a trigger event because Policy OS6 identified the application site for potential development. The owner of the eastern part of the site, Mr. S. Mahallati, made the same point in his written representations. TFAG made submissions to the contrary.
KCC took the advice of experienced junior counsel on this issue. On 20 November 2020 she advised that “Policy OS6… operates as a ‘trigger event’” and so the application to register a TVG should not proceed. She also advised that Policy OS6 was open to a different interpretation and the matter was not clearcut.
On 24 February 2021 the Regulation Committee Member Panel of KCC resolved that the “trigger event” question be referred to a non-statutory public inquiry “to clarify all the issues”.
KCC appointed experienced leading counsel, Mr David Forsdick KC, to hold the inquiry, but allowed him to adopt an “informal, written procedure” if he thought that appropriate. He was to report to the Panel solely on the “trigger event” issue. Mr. Forsdick decided that the matter could be dealt with by written representations from TFAG and interested parties.
In his report dated 9 June 2021 Mr. Forsdick advised that a trigger event had not occurred.
The Member Panel met again on 2 December 2021. KCC's Public Rights of Way and Access Manager stated in his report to members that Mr Forsdick's advice was sound and should be accepted. The Panel adopted that recommendation.
In their claim for judicial review the claimant asks for an order quashing KCC's decision on 2 December 2021 and:
“a declaration that the right to make an application has ceased and that Kent County Council have no jurisdiction to entertain the application.”
In other words, the claimant asks, that in the event of the court deciding that KCC erred in law, the court should determine the “trigger event” issue itself, and not send the matter back to KCC for redetermination. I did not understand Mr. Buley KC, who appeared for KCC, to take a different view.
The interested party, Dr van den Broek on behalf of TFAG, was represented by Mr. Honey KC and Mr. Rhimes. In their Detailed Grounds of Resistance they suggested that if the claim should succeed, a declaration would be unnecessary because the 2006 Act provides for the consequences of a trigger event. By implication they accept that the court is being asked to determine itself whether a trigger event has occurred.
I agree with the approach taken by the parties. Given that the occurrence of a trigger event disapplies the right of a citizen to apply for the registration of a TVG, I do not consider that a registration authority's decision on that issue is to be treated as a matter of judgment reviewable only on Wednesbury principles. The issue whether a development plan identifies land for potential development is a question of precedent or jurisdictional fact (De Smith's Judicial Review (8 th edition) – paras. 4–055 to 4–056). As we shall see, that is the approach which was adopted without argument in the only authority dealing with this subject.
The Statutory Framework
Section 15 of the 2006 Act deals with the circumstances in which a person may apply to register land as a TVG. Subsections (1) and (2) provide:
“(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), ( 3) or (4) applies.
(2) This subsection applies where–
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and
(b) they continue to do so at the time of the application.”
Subsections (3) and (4) deal with alternative situations where the 20 year user requirement has been met but the use has thereafter ceased. The application to register must be made within either five years of cessation where that occurred before the commencement of s.15, or within one year of cessation (for land in England) if that occurred after s.15 came into force.
Regulations made under s.24 set out the procedure by which an application made under s.15 is to be determined by the registration authority.
In January 2010 Mr. Adrian Penfold was commissioned by the Government to consider whether consents outside the planning system were delaying or discouraging investment in sustainable development. In his final report “Review of non-planning consents” published in July 2010 he considered that the issue of whether a TVG is to be registered should be raised at the same time as, and as part of, the planning process for addressing the “if decision”, that is whether planning permission should be granted. At para 4.27 he said:
“Where planning has dealt with an ‘if’ issue, the Review would argue that that issue should not be re-opened. Thus, where the possibility of TVG registration has been considered as part of planning, the Review would contend that granting planning permission should then provide protection from TVG registration for the duration of that permission. Such an approach would enable all the relevant issues to be weighed together, rather than the merits of TVG registration being considered in isolation, as is the case now.”
As a result of the Review, the Department for Environment, Food and Rural Affairs (“DEFRA”) issued a consultation document on changes to the TVG regime in July 2011. Paragraph 5.6.1. stated:
“The greens registration system works entirely independently of the planning system. There is increasing concern that it is being used in some parts of the country as a mechanism to prevent development proposed and approved through the planning system.”
In para. 5.6.3 DEFRA proposed that:
“This proposal would exclude any land proposed for development through a planning application, or for which there were an extant planning permission in place, from being included in an application to register the land as a green. It would also exclude land proposed or designated for development …… in a neighbourhood or local plan, which had been adopted or published for consultation.”
In para. 5.6.9. the Department stated:
“Nor could an application to register a green be made in relation to any land designated for development …… in a local plan which had been adopted by the local planning authority, or which was in a draft local plan which had been published for consultation. The same principles would apply to land designated for development …… in a neighbourhood plan envisaged by the Localism Bill, either at consultation stage or after formal adoption.”
These proposals took into account the statutory requirements for consultation with the local community when a local plan, or other development plan document, is being prepared (para. 5.6.5).
The suggested changes to the TVG regime also took into account the Department's proposals in section 1.2 of the document to protect recreational space through the planning system. This was to involve the designation of Local Green Spaces in the preparation and adoption of local plans under the National Planning Policy Framework (“NPPF”), which was then under consultation.
Paragraphs 76 to 78 of the NPPF published in March 2012 stated:
“76. Local communities through local and neighbourhood plans should be able to identify for special protection green areas of particular importance to...
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