Wiltshire Council v Cooper Estates Strategic Land Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lewison,Lord Justice Floyd,Lord Justice Henderson
Judgment Date16 May 2019
Neutral Citation[2019] EWCA Civ 840
Date16 May 2019
Docket NumberCase No: C1/2018/1755

[2019] EWCA Civ 840

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

Mr David Elvin QC (sitting as a Deputy High Court Judge)

CO/5866/2017

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

Lord Justice Floyd

and

Lord Justice Henderson

Case No: C1/2018/1755

Between:
Wiltshire Council
Appellant
and
Cooper Estates Strategic Land Ltd
Respondent

and

Richard Gosnell
Royal Wootton Bassett Town Council
Interested Parties

Mr Paul Brown QC & Mr Stephen Morgan (instructed by the Legal Unit Wiltshire Council) for the Appellant

Mr Gregory Jones QC & Mr Philip Petchey (instructed by Blake Morgan LLP) for the Respondent

Hearing date: 8 th May 2019

Approved Judgment

Lord Justice Lewison

Introduction and background

1

The issue on this appeal is what it takes in a development plan document to identify land for potential development. If land is so identified, the right to apply for registration of a town or village green (a “TVG”) is suspended. The essentials of a TVG, defined in section 15 of the Commons Act 2006, are that it consists of land where:

“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”

2

For decades government policy has been that development should be “plan-led”. This policy is currently given statutory effect by section 38 (6) of the Planning and Compulsory Purchase Act 2004 which provides:

“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

3

The reference to the “development plan” now includes development plan documents, and neighbourhood plans: Planning and Compulsory Purchase Act 2004 section 38 (3). A neighbourhood plan must be in general conformity with the strategic policies contained in the development plan for the area: Town and Country Planning Act 1990 Sched 4B para 8 (2) (e). But it need not slavishly adopt every detail. Once made, a neighbourhood plan becomes part of the statutory development plan; and thus benefits from the presumption in section 38 (6). The importance of development plan documents is also stressed in the National Planning Policy Framework. Paragraph 15 of the NPPF states:

“The planning system should be genuinely plan-led. Succinct and up-to-date plans should provide a positive vision for the future of each area; a framework for addressing housing needs and other economic, social and environmental priorities; and a platform for local people to shape their surroundings.”

4

Ever since the Trap Grounds case ( Oxfordshire CC v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674) the courts have adopted a definition of a TVG which goes far beyond what the mind's eye would think of as a traditional village green. The consequence of this interpretation of the definition is that there have been registered as TVGs: rocks, car parks, golf courses, school playgrounds, a quarry, scrubland, and part of a working port. If land is registered as a TVG the effect of the registration is, for practical purposes, to sterilise land for development. This became a concern for the government, because the criteria for registration did not take into account any planning considerations; and because it was thought in some quarters that applications for registration of TVGs were being used as a means of stopping development outside the planning system.

5

In the light of these (and other) concerns the government commissioned a report from Mr Adrian Penfold into “Non-planning consents”. He reported in July 2010. He noted concern that registrations had been used to prevent development; and recommended that:

“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.”

6

Following that report, DEFRA consulted on changes to the legislation affecting TVGs. As the consultation document put it at para 5.6.1:

“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.”

7

The consultation document therefore envisaged excluding land proposed for development from the right to register as a TVG. Allied to this proposal was a proposal to create a new planning designation; namely a Local Green Space. The thinking behind this was that the designation of land as Local Green Space would be achieved through the planning process by the creation of development plan documents, which were themselves the subject of extensive public consultation and involvement. This new designation is reflected in the NPPF. As paragraph 99 of the NPPF explains:

“The designation of land as Local Green Space through local and neighbourhood plans allows communities to identify and protect green areas of particular importance to them. Designating land as Local Green Space should be consistent with the local planning of sustainable development and complement investment in sufficient homes, jobs and other essential services. Local Green Spaces should only be designated when a plan is prepared or updated, and be capable of enduring beyond the end of the plan period.”

8

Paragraph 100 of the NPPF states:

“The Local Green Space designation should only be used where the green space is:

a) in reasonably close proximity to the community it serves;

b) demonstrably special to a local community and holds a particular local significance, for example because of its beauty, historic significance, recreational value (including as a playing field), tranquillity or richness of its wildlife; and

c) local in character and is not an extensive tract of land.”

9

The description of a Local Green Space is similar to the definition of the TVG (but without the requirement of 20 years' use as of right). Where land has been designated as Local Green Space, the NPPF states at para 101:

“Policies for managing development within a Local Green Space should be consistent with those for Green Belts.”

10

In other words, land designated as a Local Green Space has a very high level of protection against development. But it is not as absolute as a registered TVG.

The Commons Act 2006

11

The consultation document recognised that its objective required primary legislation. The relevant legislation was contained in the Growth and Infrastructure Act 2013. Section 16 (headed “Restrictions on right to register land as town or village green”), inserted section 15C into the Commons Act 2006. It provides, so far as material:

“(1) The right under section 15(1) to apply to register land in England as a town or village green ceases to apply if an event specified in the first column of the Table set out in Schedule 1A has occurred in relation to the land (“a trigger event”).

(2) Where the right under section 15(1) has ceased to apply because of the occurrence of a trigger event, it becomes exercisable again only if an event specified in the corresponding entry in the second column of the Table occurs in relation to the land (“a terminating event”).”

12

The particular trigger event with which we are concerned is that in paragraph 4 of the Table:

“4. A development plan document which identifies the land for potential development is adopted under section 23( 2) or (3) of the 2004 Act.”

13

There are a number of other trigger events, which include;

i) An application for planning permission in relation to the land is publicised;

ii) A draft of a development plan document which identifies the land for potential development is published for consultation;

iii) A proposal for a neighbourhood development plan which identifies the land for potential development is published by a local planning authority for consultation;

iv) A neighbourhood development plan which identifies the land for potential development is made.

14

The table has since been amended in various ways; but the amendments do not bear on the essential issues in this appeal.

15

Following this change in the law, DEFRA issued guidance to registration authorities. That guidance states in paragraph 3:

“In July 2011 the Government published a consultation on the registration of new town and village greens (“greens”) due to increasing concerns about the impact of such applications on the planning system. The Government places great importance on the planning system to support efficiency, effectiveness and growth. This is partly why the Government committed to delivering the Penfold review recommendation to reduce the impact of the greens registration system on the planning system. The Penfold review looked into whether non-planning consents discourage or delay investment in development projects.”

The facts

16

On 20 April 2016 Mr Gosnell applied to Wiltshire County Council to register land as a TVG. The land in question is a triangular area, of some 380 sq m, adjacent to Vowley View and Highfold, Royal Wootton Bassett. On one of the maps that we were shown the land was on the edge of the settlement boundary of Royal Wootton Bassett; but we were told that adjacent land outside that boundary has since been developed for housing. Cooper Estates Strategic Land Ltd owns the land; and...

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3 cases
  • R Lochailort Investments Ltd v Mendip District Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 11 May 2020
    ...of land designated as Local Green Space will remain the responsibility of its owner….” 31 In Wiltshire Council v Cooper Estates [2019] EWCA Civ 840 Lewison LJ explained the origin of LGS at [5] – [10]. He explained that LGS designations, unlike town and village green designations, are achi......
  • R (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs
    • United Kingdom
    • Supreme Court
    • 11 December 2019
    ...certain planning-related “trigger events” which suspend or extinguish the right to apply to register a green. In Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840; [2019] PTSR 1980, para 4, Lewison LJ said of these amendments: “Ever since the Trap Grounds case … th......
  • The Queen (on the Application of Lochailort Investments Ltd) v Mendip District Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 October 2020
    ...planning system. I described the process by which they were introduced in R (Cooper Estates Strategic Land Ltd) v Wiltshire Council [2019] EWCA Civ 840, [2019] PTSR 1980 at [4] to [10]. They were thus introduced into the National Planning Policy Framework (the “NPPF”) as a possible 9 The ......
2 firm's commentaries
  • Real Estate Bulletin – November 2019
    • United Kingdom
    • Mondaq UK
    • 21 November 2019
    ...Court of Appeal pulls the trigger on Town and Village Greens In the case of Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840, the Court of Appeal ("CA") upheld a High Court ruling which overturned the decision of Wiltshire County Council ("the Council") to register ......
  • Court Of Appeal Pulls The Trigger On Town And Village Greens
    • United Kingdom
    • Mondaq UK
    • 21 November 2019
    ...the case of Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840, the Court of Appeal ("CA") upheld a High Court ruling which overturned the decision of Wiltshire County Council ("the Council") to register a plot of land as a town or village green ("TVG") owing to the f......

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