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:

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:

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:

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.

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:

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

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:

Paragraph 100 of the NPPF states:

in reasonably close proximity to the community it serves;

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

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

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:

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 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:

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

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

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

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

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

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

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

Following this change in the law, DEFRA issued guidance to registration authorities.

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 objected to the application on the ground that it was precluded by section 15C of the Commons Act 2006. The ground of the objection was that the land had been identified for potential development in an adopted development plan document. Accordingly, a trigger event as defined in paragraph 4 of the table had occurred, and there had been no terminating event in relation to that trigger event.

Officers of the Council considered that objection and recommended the Council to reject it. They considered other trigger events, relating to applications for planning permission, but decided that in relation to those trigger events, terminating events had also occurred. Officers considered that the provisions of the development plan document were not enough to satisfy the definition of a trigger event. The Council accepted that recommendation and decided to register the land as a TVG.

Cooper applied to the Administrative Court to challenge the registration. The challenge succeeded before Mr David Elvin QC. The Council appealed against his order. Cooper sought to uphold it on additional grounds. At the conclusion of the hearing before us we announced that we would dismiss the appeal, with reasons to follow. That made it unnecessary to consider the additional grounds. These are my reasons for joining in that decision.

Cooper relied on the Wiltshire Core Strategy, adopted in 2015. Section 4 of that document contains the spatial strategy for Wiltshire. Paragraph 4.3 describes the Spatial Strategy as consisting of three elements. Of these, the Delivery Strategy identifies the level of growth and how Wiltshire’s settlements will develop in the most sustainable fashion. As paragraph 4.4 of the supporting text explains, the Spatial Strategy makes provision for the growth of around 27,500 new jobs and at least 42,000 new homes from 2006 to 2026. Paragraph 4.6 explains that the Settlement Strategy (Core Policy 1) identifies the different tiers of settlements based on an understanding of their role and function. In so doing the Settlement Strategy, coupled with the Delivery Strategy (Core Policy 2) seeks to “define where development will be the most sustainable across Wiltshire’s settlements”. Paragraph 4.12 says that Core

Core Policy 1 states:

The text of the development plan document goes on to introduce the Delivery Strategy. Paragraph 4.20 states that in order to support the most sustainable pattern of growth, in line with the principles of Core Policy 1, indicative housing requirements are provided for each market town. It goes on to say:

The indicative requirement for Royal Wootton Bassett is 1,070.

Core Policy 2 states:

The policy goes on to identify 16 strategically important sites. In terms of housing land, each such site would support hundreds of dwellings or more. In relation to those sites, the policy states that:

The land in issue in this appeal is not one of the strategically important sites. But it lies within the settlement boundary of Royal Wootton Bassett. As such it is a parcel of land to which the presumption in favour of sustainable development applies. As far as Royal Wootton Bassett is concerned, Core Policy 19 provides:

The supporting text dealing with Royal Wootton Bassett goes on in paragraph 5.101 to state:

In paragraph 5.102 the text states:

The overall thrust of the development plan document was thus to identify those parts of Wiltshire in which development would be encouraged. In some cases, the plan descended into detail by specifically allocating sites. In other cases, including that of Royal Wotton Bassett, specific site allocations would come later in the plan period. But it is clear that those sites which had been specifically allocated by the plan itself would not, on their own, deliver the required development over the plan period.

The judge considered the various trigger events that suspend the right to apply for registration of a TVG. Some, like an application for planning permission, are site specific, and limited in duration to the processing of the application. Others, like those relating to development plan documents, are dealing with less specific matters. As the judge pointed out at [32]:

He went on to hold that the mere fact that a development plan document encourages a particular form of development is not enough. There must be “a sufficient nexus between the plan and the land”.

The judge then considered the development plan document in detail. At [60] he said:

At [63] he said that he accepted Cooper’s submission that:

In essence that was the reason that he held that the right to apply for registration of the TVG had been suspended.

As I have said, the key issue on the appeal is whether the land has been identified for potential development.

It is common ground that it is not a requirement of the trigger event that only the land in question is identified. It may be part of a larger identified area. We were referred to the decision of Lindblom J in West Kensington Estate Tenants and Residents Association v Hammersmith and Fulham LBC [2013] EWHC 2834 (Admin), as was the judge. The issue in that case was whether two housing estates had been identified as an area of specific change or special conservation in a supplementary planning document; or whether they had already been identified in the London plan and adopted development plan documents. Lindblom J said:

Both parties to the appeal agreed that these observations were correct; and I am content to accept this explanation of what “identifies” means. But the question still remains: identified for what? The trigger event is not that the land in question has been identified “for development”; but that it has been identified for “potential development”. “Potential”, as the judge pointed out at [65]:

In the context of town and country planning, it can, for example be contrasted with “allocation” where a site is allocated for a particular use or development: see Town and Country Planning (Local Development) (England) Regulations 2004 reg 2 (1).

Mr Brown QC, for Wiltshire, submitted that the mere fact that land was within a settlement boundary to which a policy of the nature of CP1 and CP2 applied was not enough. If the judge were right, his conclusion would apply to all settlement boundaries. The main purpose of a settlement boundary was to delineate the difference between countryside and built-up areas. The very nature of a TVG was that it was a piece of land used by the inhabitants of a neighbourhood or locality. Necessarily, that entailed that it was used by the inhabitants of a settlement. If mere inclusion within a settlement boundary was enough to suspend the right to register a TVG, that would remove a valuable right from most people who would otherwise have been entitled to it. That right would have been removed even in relation to land within the settlement boundary where there was no real risk of development. That was unlikely to have been Parliament’s intention in changing the law; and would have been a disproportionate response to the identified mischief.

The requirement was that “the land” be “identified”. “The land” must refer to the land the subject of the application for registration as a TVG. That land is not identified merely by narrowing the field. It must be specifically identified. But, as I understood it, Mr Brown accepted that land could be identified in a number of different ways. It could be identified by a line on a map. If so, the line on the map need not be restricted to the application land alone. It could be identified by a verbal description of the parcels. But it could also be described by reference to prescribed criteria. Each of these ways of identifying the land seems to me to admit of the possibility that more than one site could satisfy the description. So the field is not necessarily restricted to one. On the other hand, as Mr Jones QC, for Cooper, submitted, there is no difficulty in identifying the land in issue as being land within the settlement boundary drawn on the map, to which policies CP 1 and CP 2 apply. I would hold, therefore, that the land has been identified by the development plan document.

Nevertheless, I would accept Mr Brown’s submission that the mere fact that land is included within a settlement boundary is not enough to suspend the right to apply to register a TVG. But that is because suspension of the right depends on the consequences, as set out in the development plan document, of land being within a settlement boundary. So I turn to the next question: does the development plan document identify the land “for potential development”?

Mr Brown put the case in a number of different ways. What was necessary, he said, was that one could see from the development plan document that development of the land in question was acceptable, or that the land was suitable for development. The acid test was whether there would ultimately be a form of development on the land that would be acceptable. The land in issue had to be the subject of an allocation or something of essentially the same nature. But in my judgment the question is not whether the land has been identified “for development” but whether it has been identified “for potential development”. Mr Brown argued that the meaning of the word “potential” did no more than reflect the fact that a development plan could not compel the development of a particular parcel of land. However, in my judgment that gives no force to the ordinary meaning of the word. Moreover, even if a site is allocated, in the sense in which that term is used in town and country planning, the mere fact of allocation cannot compel development.

Mr Brown also argued that the judge’s interpretation poses problems for the process of adopting a development plan. The judge’s conclusion meant that everything within

In addition, I also consider that there is force in Mr Jones’ submission that a narrow interpretation of the trigger event would itself cause difficulties in the formulation and adoption of a development plan document. Such a document may go through many iterations in the course of its preparation and examination. Suppose that a draft plan proposes development in particular areas, in terms similar to CP1 and CP2. Different sites may be proposed for allocation for development at different stages of the process. If an application for registration of a TVG could be made before the stage of allocation, the mischief which the change in the law was designed to prevent would recur.

But in any event, in the present case the development plan document does show that the land is identified for potential development. CP1 identifies “the settlements where sustainable development will take place.” CP2 provides that within the settlement boundary “there is a presumption in favour of sustainable development.” I agree with Mr Jones that these policies clearly identify the land as having potential for development. This reading is supported by the explanatory text. Paragraph 4.3 states that CP2 “identifies … how Wiltshire’s settlement will develop in the most sustainable fashion”. Paragraph 4.6 states that CP1 and CP2 seek “to define where development will be the most sustainable”. Paragraph 4.12 says that CP2 “presents the way these settlements will develop in the future”. Paragraph 4.15 refers to relaxation of settlement boundaries “to identify new developable land”. I agree with Mr Jones that that necessarily implies that land within the settlement boundary is already developable land.

Mr Brown argued that within the settlement boundaries there are parcels of land which may be governed by policies protecting open space, playing fields and areas of conservation values which would preclude development. Such land, he submitted, is

The phrase we are called upon to interpret is imprecise. Each side was able to point to potential difficulties if the other side was right. One of the few things on which both Mr Brown and Mr Jones were agreed albeit from completely different perspectives was that if we chose the other side’s interpretation we would be on a slippery slope. That makes it imperative, in my judgment, to interpret it in accordance with the policy underlying the change in the law. That policy, as I understand it, was that whether or not to protect a piece of recreational land with identified development potential should be achieved through the planning system and not by means of registration of a TVG.

It is clear from the development plan that the planning authority envisaged that during the currency of the development plan over 1,000 new homes would be needed in Royal Wootton Bassett. Paragraph 5.101 stated that it was not necessary to make specific allocations at the early stages of the plan. To allow a registration of a TVG within the settlement boundary would, in my judgment, frustrate the broad objectives of the plan. That is precisely the reason why Parliament decided that, in circumstances like the present, a TVG should not be registered; but, instead, the question of development should be left to the planning system.

The judge said at [67]:

I agree. It was for these reasons that I joined in the decision to dismiss the appeal.

I agree with the reasons Lewison LJ has given for the appeal to be dismissed. I add a few words of my own in relation to one particular argument advanced on behalf of the Council by Mr Brown.

Mr Brown’s argument was that the settlement boundary could not identify every site falling within it as having the potential for development because no reader of the development plan would so understand it. For example, the reader would not understand that listed buildings or conservation areas which fell within the limits of the settlement were being identified for potential development. The purpose of the settlement boundary was different, namely to steer development to suitable sites within the area which it defined and to discourage development outside it. If that is so, then the premise of the judgment of the deputy judge was undermined, because he took the fact that the land fell within the settlement boundary, coupled with policies CP1 and CP2, as sufficient to identify the land for potential development.

This argument does not do justice to the reasoning of the deputy judge. At paragraph 65 he deals with the argument that the settlement boundary may include within it sites which are subject to constraints, which he had earlier identified in paragraph 65(1) as including such things as listed buildings and conservation areas. He says:

The judge did not therefore treat the settlement boundary and CP1 and CP2 as conclusive of the question in all cases without reference to the policy as a whole. It was common ground that there was nothing else in the policy which could contradict a conclusion that the policy identified the land in question for potential development.

Like the judge and Lewison LJ, I would not exclude the possibility that other policies might trump the presumption in favour of development for sites within the settlement boundary, and thus compel a conclusion that the land was not identified for development. It must be kept firmly in mind, however, that the words “potential” and

I agree with both judgments.