The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 30 November 2022 |
| Neutral Citation | [2022] EWHC 3044 (Admin) |
| Docket Number | Case No: CO/1368/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2022] EWHC 3044 (Admin)
Sir Ross Cranston
(Sitting as a High Court Judge)
Case No: CO/1368/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
George Laurence KC and Simon Adamyk (instructed by Richard Buxton Solicitors) for the Claimant
Ned Westaway (instructed by the Government Legal Department) for the Defendant
Hearing date: 17 November 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date for hand-down is deemed to be 30 November 2022.
INTRODUCTION
This is a challenge by way of judicial review to the decision of the defendant, the Secretary of State for Environment, Food and Rural Affairs, dated 18 January 2022, to grant consent under section 38 of the Commons Act 2006 (“the 2006 Act”) for the construction of a short length of road at the north-eastern extremity of common land at Barking Tye, Suffolk. The common is constituted by a relatively narrow verge of land on both sides of the B1078 Barking Road at this point. The proposed road is to create access from the B1078 to the site of a new housing development and would be some 70m2 in size.
The claimant is The Open Spaces Society, a company limited by guarantee which was founded a century and a half ago to protect open spaces and public rights of way in the United Kingdom. In the judgment I will call it “the Society”.
The Secretary of State has responsibility for the Government's policy in relation to the management and protection of common land. The Planning Inspectorate fulfils her functions in relation to common land casework in England. Planning inspectors or case workers are primarily appointed to determine applications for consent for works on registered common land under section 38(1) and for deregistration of registered common land under section 16(1) of the 2006 Act.
The Society contends that the inspector appointed in this case was wrong to grant consent in face of its submission to him that the burden of proof was on the applicant to demonstrate that there was a need for the proposed access road to be constructed on this common, and that the applicant had failed to discharge that burden, first, because the applicant had failed to show that there was no or no satisfactory alternative route off the common, and secondly, because it had failed to show that it there was no or no suitable replacement land which could reasonably have been provided in exchange for that to be used for the road.
There are three interested parties. The first, Ruby Homes (East Anglia) Ltd (“the developer”), was the applicant for permission to carry out works for the proposed access road on the common and also has an interest in the site of a proposed new housing development; the second, Barking Tye Parish Council, is the freehold owner of the common and has granted consent to the proposed access road; and the third, Mid Suffolk District Council, is the apparent vestee of the right and obligation to regulate this common under Part I of the Commons Act 1899. None of the interested parties has taken part in these proceedings.
BACKGROUND
The common at Barking Tye has been registered as a common for many years as Register Unit No. CL 23.
On 24 January 2018, outline planning permission for residential development (the construction of nine dwellings) was granted to the developer by Mid Suffolk District Council. All matters of detail were reserved, save for the proposed access road which is the subject matter of these proceedings.
On 19 June 2021 the developer applied under section 38 of the 2006 Act for consent to construct a new permanent shared vehicular access way (including public utility services beneath) covering approximately 70m2 of common land at its north-eastern extremity in order to serve the proposed development site. The proposed access road would link the site with the nearby public highway, the B1078 Barking Road.
The Society objected to the application on 16 July 2021. It raised the question of why the proposed access road was needed. There was an “existing vehicular access with dropped kerb” almost immediately to the east of the proposed access, which was not on the common. The Parish Council had accepted an offer of £190,000 for an easement over the common, it said, and presumably the owner of the adjacent vehicular access might come to an agreement with the developer for a similar inducement. It added that the developer should justify its decision.
Even if need were shown, the Society continued, the developer had not proposed an exchange of land, even though it obviously could, either from the grassed space between the access road and the northern boundary of the development site, or from elsewhere. It might well cost the developer nothing. The proposed roadworks, it said, were incompatible with the core terms of the Secretary of State's policy guidance contained in Common Land Consents Policy of November 2015 (“the Policy”). They did not confer any wider public benefit. Nor were they temporary in duration or lacking in significant or lasting impact, and therefore they failed to satisfy the key test in the Policy.
Natural England also objected to granting consent for the proposed access road. While it was relatively small and located at the northern extremity of the common, Natural England said in its letter of the 16 July 2021 that it was unable to see how the proposals would maintain or improve the common or were sympathetic to its continued use as common land. It also made the point that the works would take place at the northern extremity of the common and given the location they would expect that this would effectively form the boundary of the common in this area and potentially lead to a greater loss than the 70m2. Natural England suggested that a section 16 application to deregister the land covered by the area to be surfaced along with the area of common immediately to the northeast of the proposed route would be more appropriate. An alternative area of common land of equal value could then be provided.
The developer (through its agent) responded. As to the suggestion that replacement land should be offered, it said that the area affected was only 70m2 and there was no need to offer replacement land where deregistration was sought in respect of such a small area. It added that it was not realistic to ask for alternatives to be considered at this stage because it was the scheme for which planning permission had been granted and in respect of which the road safety implications had been assessed. Access was not a reserved matter on the outline planning permission it had been granted.
The Society responded on 21 September 2021, inter alia, that the developer should have considered the requirements of the section 38 process before embarking on the application for planning permission.
The Secretary of State appointed an inspector, Mr Edward Cousins, to decide the developer's section 38 application. Mr Cousins is a highly experienced inspector and an author of Gadsden and Cousins on Commons and Greens, 3 rd edition, 2020.
THE INSPECTOR'S DECISION
The inspector issued his decision granting section 38 consent on 18 January 2022, COM/3277618. At the outset of the decision, he indicated that he had made a site visit.
After setting out the statutory requirements in sections 38 and 39 of the 2006 Act, the inspector said that he must also have regard to the Policy. However, he added, every application was considered on its merits and a determination would depart from the Policy only if it appeared appropriate to do so: DL7.
The inspector then outlined the application before turning to the objections which Natural England and the Society had raised. He said that both had submitted that a proposal of this nature should more appropriately be the subject of an application made under section 16 of the 2006 Act, a process by which the affected land would be de-registered as common land with a corresponding area being designated as common land as a replacement. No such application had been made, he said, so that the current application had to be considered on its merits in accordance with the relevant criteria set out in section 39 of the 2006 Act: DL17. The inspector then considered each of the four factors in section 39(1) to which regard must be had in determining a section 38 application.
As regards the first, section 39(1)(a), the interests of those occupying, or having rights in relation to, the common, he concluded that public access to the application land would still be available after the works have been carried out, albeit that the area would have a hard surface to accommodate traffic. Public access to the common would not be restricted in any significant way, indeed would be improved owing to the lack of any existing pavement between the B1078 Barking Road and the common: DL21. The proposal would not adversely affect the interests of those occupying or having rights in relation to the common: DL22.
Turning to the second, section 39(1)(b), the interests of the neighbourhood, the inspector noted the absence of a statutory definition of “neighbourhood”. He then paraphrased paragraph 3.2 of the Policy: DL23. In this case, he observed at DL24, the proposed works would have the effect of replacing a relatively small area of grassland on the common adjoining the public highway and lying adjacent to the existing unmetalled path to farmland to the rear, with a paved or...
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