Meyrick Estate Management Ltd & Ors v Secretary of State for Environment, Food & Rural Affairs

This is an application under paragraph 8 in Part III of Schedule 1 to the National Parks and Access to the Countryside Act 1949 ("the Act") to quash the New Forest National Park (Designation) Order 2002 ("the Order") as confirmed by the defendant on 1st March 2005, in so far as the order relates to Hinton Park.

The Order was made by the Countryside Agency ("the Agency") on 24th January 2002 and submitted to the defendant for confirmation in February 2002. In accordance with the procedures contained in Schedule 1 to the Act, notice was given that the order was about to be submitted for confirmation. A total of 374 objections and representations was received, and the defendant appointed an inspector, who was assisted by a landscape assessor ("the Assessor") to hold a public inquiry ("the Inquiry"). The Inquiry took place between 8th October 2002 and 10th April 2003.

Hinton Park is part of the Hinton Estate, a large estate totalling allow 2,428 hectares (6,000 acres) which is managed by the claimants on behalf of the Meyrick family. Hinton Admiral House, which is within Hinton Park, is the family's ancestral home.

The main part of the Hinton Estate, including Hinton Park itself, lies in the south western corner of the National Park as designated by the Agency, to the north of the built-up area between Christchurch and New Milton. Most of the main part of the estate was within the National Park boundary proposed in the Order, although part was outside it. The Avon Tyrrell Estate is another substantial estate which lies to the north of the main part of the Hinton Estate. The two estates are separated by the village of Bransgore and a wedge of open land to the west of that village.

The claimants were represented at the Inquiry by counsel, who called witnesses, including a landscape consultant, Ms Reynolds. The two estates presented a joint case and Ms Reynolds' proof of evidence dealt with both estates. At the Inquiry the claimants argued my reference to a plan showing their suggested New Forest National Park Boundary that the boundary of the National Park at its south western corner should be modified so as to exclude Hinton Park (and other land), leaving a smaller but still significant acreage of the Hinton Estate within the National Park.

The Inspector set out the terms of reference of the Inquiry. So far as relevant, they were as follows:

Subsection 114(2) of the Act, as amended, provides that:

In summary, the claimant's contended at the Inquiry that parts of the Hinton Estate (including in particular Hinton Park) should be excluded from the designated area because the Agency had misapplied the "natural beauty" criterion in paragraph (a) of subsection 5(2); and/or because the areas the claimants proposed should be excluded from the National Park did not afford "opportunities for open-air recreation" as required by paragraph (b) of subsection 5(2). It was common ground at the Inquiry that designation would not be lawful unless both of these criteria were met in respect of the tract of country under consideration.

The Assessor's conclusions in respect of "Land at Hinton Park" were as follows:

The Inspector concluded under the heading "Land at Hinton Park":

I will deal with Appendix 2 to the Inspector's report and also with Appendix 1, which is the Assessor's "General report on issues relating to the natural beauty criterion", when considering the claimants' grounds of challenge in more detail.

In the present case nothing turns on the defendant's decision letter dated 28th June 2004 because she accepted the Inspector's reasoning and recommendation as set out above. The challenge therefore focuses upon the reasoning in the Inspector's report and Appendices 1 and 2 thereto.

On behalf of the claimants, Mr McCracken QC submitted that the defendant had erred in law in the following respects:

Although the grounds continued a reasons challenge, Mr McCracken did not pursue it as a separate ground in its own right in his submissions before me. In essence, he submitted that in adopting the Inspector's conclusions the defendant had clearly erred in her approach to both the "natural beauty" and the "opportunities for open-air recreation" criteria in subsection 5(2), and if and in so far as there was any lack of clarity, then her reasoning in respect of those two issues was inadequate.

Grounds (3)-(6) are detailed aspects of the underlying complaint in ground (1), that the Inspector erred in his approach to the criterion in paragraph (b) of subsection 5(2). I find it convenient to follow the order set by subsection 5(2) and to consider first the Inspector's approach to the "natural beauty" criterion in paragraph (a) of the subsection (ground (2)), and then to consider the Inspector's approach to the criterion in paragraph (b) in principle (ground (1)) and then in detail (grounds (3)-(6)).

There is no definition of "natural beauty" in the Act. The genesis of the 1949 Act is set out in the Assessor's General Report, Appendix 1 to the Inspector's report. In 1945 the Dower Report, which recommended the establishment of National Parks, described a National Park as "an extensive area of beautiful and relatively wild country in which ... the characteristic landscape beauty is strictly preserved". The Dower Report was followed in 1947 by the Hobhouse Report, which said in paragraph 35:

It was common ground at the Inquiry that "natural" in paragraph (a) of subsection 5(2) could not be given its literal meaning. Since all the landscapes of England, even those commonly thought of as "wild", have been moulded by centuries of human activity it was agreed that the criterion in paragraph (a) must be one of relative "naturalness". This is reflected in the advice contained in Department of Environment Circular 12/96 which deals with National Parks, which says in paragraph 8 that National Parks are:

These characteristics are well illustrated by the first four National Parks to be designated in 1951, the Peak District, the Lake District, Snowdonia, and Dartmoor. Others followed, including NorthYork Moors, the Yorkshire Dales, Exmoor and the Brecon Beacons.

The background to the claimants' submissions in respect of the Agency's application of the "natural beauty" criterion was the earlier designation of the New Forest Heritage Area ("NFHA"). In the 1950's the New Forest had been judged to be worthy of National Park Status, but designation was not pursued because it was felt that the core of the Forest (within the preambulation) was adequately protected by the Forestry Commission's Management of the Crown Lands coupled with the powers of the Verderers under the New Forest Acts of 1877-1970.

In response to increasing development pressures, and the demand for more recreational use, the New Forest District Council, the Forestry Commission and a number of other interested bodies, including the Countryside Commission (as it then was), established the New Forest Review Group. The Group's report advocated the recognition of a wider New Forest, which included countryside beyond the preambulation which had strong visual and historical links with the Forest and which provided off-forest grazing land which sustained commoning.

In due course the New Forest Group became the New Forest Committee. The Committee established the boundary of the NFHA (which had originally been designated on an interim basis in 1985 by the New Forest District Council). The NFHA is a local landscape designation which is recognised in the Statutory Development Plans for the area and is protected through the planning process in the normal way.

The proofs of evidence at the Inquiry, the Assessor and the Inspector all referred to a number of Core Documents. CD104 was the "New Forest National Park Draft Boundary Consultation Report" published by the Agency in October 2000. CD126 was a July 2000 report prepared for the Agency by Environmental Resources Management ("ERM"). The main objective of ERM's brief was to identify a boundary for the New Forest National Park. CD206 was a report by Land Use Consultants ("LUC") to the New Forest Committee which led to the designation of the boundary of the NFHA in 1991.

In paragraph 3.16 of her proof of evidence Ms Reynolds explained:

In paragraph 3.23 she referred to Table 2 in CD104, which included the following criteria for defining the National Park's boundaries:

She said that the Countryside Agency's approach to National Park designation was further expanded upon in CD104. When commenting on CD126 she said "the salient points of ERM's approach" as set out in that document were:

Against this background she said in paragraphs 8.77-8.80 of her proof of evidence:

While considering this part of Ms Reynolds' evidence, it is convenient to read the next paragraph, 8.81, of her proof of evidence, dealing with Avon Tyrell park because it will be relevant when ground (4) of the challenge falls to be considered:

The Inspector summarised the claimants' case in respect of the "natural beauty" criterion by reference to the summary contained in the Assessor's report, as follows:

The Agency's landscape consultant, Ms Martin, identified the claimant's "main arguments" for the exclusion of Hinton Park as including the argument that:

Under the heading "Natural Beauty" Ms Martin said:

Under the heading "The statutory criteria for National Park designation" Mrs MacIlwaine, who was the Agency's lead officer for designation of the New Forest as a National Park, said this in paragraphs 12 and 14-16 (so far as relevant) of her proof of evidence:

The Inspector summarised the Agency's case in paragraphs 4.119-4.123 of his report:

Appendix 1 to the Inspector's report contains the Assessor's response to these rival contentions. Under the heading "Interpreting the Statutory Criteria in the New Forest National Park" the Assessor described the "pathway that led to the production of one of the key documents at the Inquiry, that is CD104, and particularly Tables 1 and 2". In paragraph 1.33 of Appendix 1 the Assessor said:

Under the heading "The Natural Beauty Test" the Assessor said:

The Inspector summarised the Assessor's conclusions and recommendations on "natural beauty", in so far as they related to Hinton Park, in paragraphs 4.165-4.168 of his report which I have set out above.

In paragraph 4.171 the Inspector said that with two small exceptions, which the parties are agreed are not relevant for present purposes, he agreed with the Assessor's conclusions on the applicability or otherwise of the "natural beauty" criterion within the various areas of contention. I have also set out above his conclusions in paragraphs 4.190-4.193 of his report. Although these conclusions are contained in the section of the report dealing with "Opportunities for open air recreation", they reiterate the Inspector's agreement with the Assessor's view that the Hinton Estate meets the "natural beauty" criterion:

I have set out the rival contentions at the Inquiry in respect of the "natural beauty" criterion at some length and in some detail so that the Assessor's and the Inspector's responses to those contentions can be properly understood in context. Documents such as the Inspector's report should not be construed legalistically or in a vacuum, but in a common-sense way and always bearing in mind that they will be a response to the evidence and arguments that have been deployed at the Inquiry.

It is clear that the Inspector agreed with the Assessor (see paragraph 4.190).

How then did the Assessor resolve the conflict between the claimants and the Agency? Did she accept the claimants' contention that in drawing the National Park boundary the Agency had had regard to factors such as historical and cultural associations, commoning considerations, archaeological and nature conservation interests, and the inclusion of features of historical or architectural value at the margins, which were not relevant for the purposes of deciding whether an extensive tract of countryside had the necessary quality of "natural beauty"; or did she accept what appears to have been the Agency's final position, as explained by Mrs MacIlwaine, that:

I say what appears to have been the Agency's final position because it will be remembered that Mrs MacIlwaine had said in paragraph 12 of her proof of evidence that National Park purposes did not form part of the statutory designation criteria. Hence the Agency had not conflated the duties of a National Park Authority once a National Park had been designated with the criteria for designation. In the first sentence of paragraph 15 of her proof of evidence she had said that the Agency did not accept that it had "adopted an understanding of 'natural beauty' which goes beyond its true meaning by incorporating cultural and historical components". However, and notwithstanding what was said in paragraph 12 of her proof, it would appear from the remainder of paragraph 15 and from paragraph 16 of her proof of evidence that the Agency was not saying that "cultural and historical components" had not been incorporated into its definition of natural beauty, but rather that they had been incorporated and that the Agency had been right to do so. That this was the Agency's position is confirmed by the Inspector's summary of the Agency's submissions in the report and by the various factors considered in Ms Martin's evidence under the heading "natural beauty" (see above), "all of which" she told the Inspector had led the Agency to take the view that designation was merited.

It will be remembered that the Inspector's summary of the Agency's response under this heading referred both to the fact that "Hinton Park itself is of high landscape quality and included on the Hampshire Register of Historic Parks and Gardens. Hinton Admiral House is listed as Grade I" (4.121), and to the fact that "much of the estate and its parkland have grazing rights and some land is let to commoners. In this sense it is an integral part of the historic dispersed pastoral system" (4.123).

In his submissions on behalf of defendant Mr Elvin QC did not place any reliance upon the Agency's approach to the "natural beauty" criterion. He submitted that the Assessor, having noted the rival contentions, had formed her own view, which the Inspector had then adopted.

I have set out the relevant extracts from Appendix 1 to the Inspector's report (above). On any fair reading of section 3 of Appendix 1, the Assessor accepted the Agency's approach to the factors that could and should be taken into account when considering whether the "natural beauty" criterion was met: see paragraphs 3.4 and 3.6 of Appendix 1 (above). Her concern was not with the Agency's interpretation of the criterion, but with the way in which the Agency's interpretation had been applied by the Agency in defining the precise boundary of the National Park, and in particular whether the Agency had applied its own approach with sufficient consistency and rigour (ibid).

The claimants do not quarrel with the substance of paragraph 3.7 in Appendix 1. They accept that, for example, flora, geological or physiographical features may contribute to, or even be the principal reason for, an area's "natural beauty". Nor do the claimants dissent from the Assessor's proposition that factors such as history, cultural associations and archaeology are all important in understanding how the countryside has evolved to its present state. However, they submit that there is a clear distinction between understanding how a landscape has evolved, and deciding for the purposes of paragraph (a) in subsection 5(2) whether an extensive tract of country has the necessary quality of "natural beauty".

Although the Assessor said in the final sentence of paragraph 3.8 of Appendix 1 that the weight to be attached to factors such as history and cultural associations "should be carefully considered" if they were "not to be given undue attention in reaching judgments on natural beauty under the Act", it is clear from paragraph 3.9 that she did consider that (subject only to the question of weight) such factors could be taken into account, and that she agreed with the Agency's approach to the factors mentioned in section 114(2):

Mr Elvin submitted that in determining the extensive tracts of country to be designated under subsection 5(2) the Agency and the Secretary of State were furthering the purposes in section 5(1)(a), and hence the expanded meaning of "natural beauty" in section 114(2) was applicable also to subsection 5(2). He further submitted that it would be surprising if "natural beauty" had a wider meaning in subsection (1) than it had for the purposes of subsection 5(2).

I do not accept those submissions. Parliament could easily have made provision for an expanded meaning of "natural beauty" which would have been of general application throughout the Act:

If possible, subsection 114(2) should be interpreted in such a way as to give effect to all of the words used by Parliament, and not an interpretation which would, in effect, render the two references to "the preservation or [as the case may be] the conservation of ..." otiose.

While at first sight it may appear strange that "natural beauty" is given an extended meaning in subsection (1) as substituted by the Environment Act 1995, but not in subsection (2) of section 5, I accept Mr McCracken's submission that one does not have to look far for a sensible justification. Once an extensive tract of country has been designated as a National Park, that will have been not merely because of its natural beauty, but also because of the opportunities it affords for open air recreation, and the latter may well threaten not merely the natural beauty that those seeking open air recreation come to enjoy, but also the flora, fauna, geological and physiographical features within the area, even if those features do not contribute to the area's natural beauty. To take a simple example, visitor pressures may threaten the continued existence of rare flora or geological features which are of great scientific interest, or physiographical features that are of great historic interest, but are wholly lacking in beauty.

It will also be noted that the ambit of what should be conserved and enhanced pursuant to section 5(1) (as amended) once a National Park has been designated extends beyond "natural beauty" to include the "wildlife and cultural heritage" of the areas in question. By contrast, the wildlife and cultural heritage of an area are not made relevant considerations for the purpose of deciding whether that area should be designated as a National Park under subsection 5(2).

It is therefore not surprising to find that once an area has been designated as a National Park, on the basis of its "natural beauty" and the opportunities it affords for open air recreation, the duty of the Park's Authority to conserve and enhance is extended to a wider range of the area's special qualities, including, but not limited to, its natural beauty.

Mr Elvin submitted that the Inspector did not err in any event since he did not rely on the extended definition in section 114(2).

I would accept that the issue between the claimants and the Agency did not simply turn on the extended definition in section 114(2), because the Agency's approach went further and included a wider range of factors, not limited to those mentioned in section 114(2), in its assessment of the "natural beauty" criterion: see Mrs MacIlwaine's evidence (above). Ms Reynolds had identified the two principal criteria for the NFHA boundary drawing exercise:

I have set out the Assessor's response to the claimants' case in respect of the "natural beauty" criterion. What is perhaps of more importance than her response in section 3 of Appendix 1 to the conceptual arguments, is her justification for concluding that the land at Hinton Park "more than adequately satisfies the natural beauty criterion" (see paragraph 4.168). First, in paragraph 4.165 the Assessor found that the land at Hinton Park and the surrounding associated countryside "has long been recognised for its natural beauty having been part of the NFHA".

The claimants' argument that a number of the factors considered in designating the boundary of the NFHA were irrelevant for the purposes of deciding whether the "natural beauty" criterion in section 5(2)(a) had been met was either ignored, or more probably, in view of paragraph 4.167 of the report, rejected.

Paragraph 4.167 began by referring to the "highly regarded designated landscape of the parkland, which is recorded and detailed on the Hampshire County Register of Historic Parks of Gardens, with English Heritage Grade I listing for the buildings it contains". Although the Assessor goes on to say that the "wider landscape" within which the parkland sits, "includes all the characteristics of its Heath Associated Landscape type which is a classic New Forest type found elsewhere within the NFNP", there is no suggestion that she considered that the undoubted historic or architectural interest of the Grade I house and its parkland setting, whilst highly relevant for many planning purposes, were not relevant for the purpose of paragraph (a) in subsection 5(2). Indeed it would appear that the Assessor was, in practice, endorsing the criteria in the Draft Boundary Consultation Report (CD104) which had stated inter alia that features of scientific, historical or architectural interest situated on the margins of the National Park should be included where possible.

The Inspector agreed with the Assessor. His approach is best summarised in paragraphs 4.190 and 4.191 of his report. The full text is set out above. For convenience I repeat the following extracts (with emphasis added):

If the criterion in subsection 5(2)(a) was a "highly attractive landscape" or the old development plan designation of Great or High Landscape Value, now more often described as Special Landscape Areas, one could well understand a conclusion that "well maintained" parkland on the Register of Historic Parks and Gardens and "well-ordered" fields of dairy farms, were a "highly attractive" or "high quality" landscape. But the criterion for designation as a National Park is an extensive tract of countryside that has the quality of natural beauty, not simply "dairy". In some contexts "natual" might simply mean rural, as opposed to urban, but "natural beauty" has to be understood in the context of section 5 which is concerned with the designation of "extensive tracts of country" which have the particular quality of natural beauty. I would endorse the approach of the Assessor in paragraph 3.7 of Appendix 1 to the Inspector's report. For the reasons she gives, what is required is "a high degree of 'relative naturalness'". Since the concept of naturalness is a relative one, there will be a spectrum with the "wildest" areas or the "more rugged areas of mountain and moorland" at one extreme. However, if the concept is one of relative "naturalness" (rather than visual attractiveness) "well-maintained" historic parkland providing the setting for a Grade I Listed building, and "well-ordered" dairy fields of dairy farms would seem to be the antithesis of naturalness. In such landscapes man has very obviously and deliberately tamed nature. As Ms Reynolds said "the parkland is a designed landscape and created for ornamental beauty and the control of nature ..." This argument is nowhere addressed by either the Assessor or the Inspector.

The Assessor and the Inspector's approach effectively discarded the requirement for a high degree of relative naturalness and substituted a test of "visual attractiveness" or "landscape quality". The distinction between natural beauty and attractive landscape is well illustrated in terms of planning policy by the contrast between Areas of Outstanding Natural Beauty ("AONB"), which were originally designated under section 87 of the Act and now designated under section 82 of the Countryside and Rights of Way Act 2000, with the Areas of Great Landscape Value ("AGLV") designated by local planning authorities in the old-style Development Plans. There may or may not be a degree of overlap between the boundaries of an AONB and an AGLV (or its successor designation recognising an area of attractive landscape in the new Development Plan system).

Before leaving ground (2) I should make it clear that the proper interpretation of subsection 114(2) (whether it extends the meaning of natural beauty in subsection 5(2) as well as in subsection 5(1)) is not the determining issue. The Agency was contending that a broader range of factors, including, for example, historical and cultural factors, could be taken into consideration in deciding whether the "natural beauty" criterion in subsection 5(2) was met. While such factors were relevant (as the Assessor said) to an understanding of how a particular tract of countryside had evolved to its present state, they were not relevant when it came to deciding whether it possessed the necessary quality of natural beauty so as to justify designation as a National Park.

I realise that the defendant may well consider that this is an unduly restrictive approach to the ambit of her and the Agency's powers under section 5(2). However, it must be remembered that the question is not what factors should, as a matter of good countryside planning practice in the 21st century, be taken into consideration in designating a National Park, but what factors may lawfully be taken into consideration under an enactment that is now over 55 years old. It might well be the case that "more modern" legislation would not be satisfied with such a straightforward and simple concept as "natural beauty". As an example of a more up-to-date approach to countryside planning the claimants mentioned the provisions of the National Parks (Scotland) Act 2000, which provides that an area may be designated for "outstanding national importance because of its natural heritage or a combination of its natural and cultural heritage". Recognition of the concept of cultural heritage is also to be found in subsection (1) of the Act, as substituted by the 1995 Act. Parliament had the opportunity in 1995 to bring subsection (2) up to date if it wished to do so. It did not. It left the "natural beauty" criterion in subsection (2) unchanged.

The 1949 Act was a contemporary of the New Towns Act 1946 and the Town and Country Planning Act 1947. The new towns are no longer new, and a brief perusal of today's planning Acts would be sufficient to demonstrate the extent to which relatively simple provisions which sufficed in 1947 have been repealed and replaced by far more elaborate and sophisticated controls in response to the many changes that have taken place over the last 50 years. Views as to which tracts of countryside have the quality of "natural beauty" may (or may not) have changed over the last 50 years, but the "natural beauty" criterion in subsection 5(2)(a) of the Act has not been changed to embrace wider considerations such as "cultural heritage". If the "natural beauty" criterion in subsection 5(2)(a) is to be changed to reflect 21st century approaches to countryside and leisure planning then the change must be effected by Parliament, and not by administrative action on the part of the Agency in adopting a wider range of factors for the purposes of designation. This application therefore succeeds on ground (2).

The claimants argued that those parts of the Hinton Estate which they sought to exclude from the National Park and in particular Hinton Park did not afford any "opportunities ... for open air recreation". In paragraph 8.77 of her proof of evidence Ms Reynolds summarised the position thus:

In response Ms Martin said:

The Inspector summarised the claimants' case in paragraphs 4.116 and 4.117 of his report:

CROW gives the public what is commonly called "the right to roam" over "access land" as defined in the Act. "Access land" is open country as shown on a map prepared by the Agency. Section 1(2) defines "open country" as land which appears to the Agency "to consist wholly or predominantly of mountain, moor, heath or down". The descriptions of "excepted land" are set out in Schedule 1 to CROW and include land covered by buildings or the curtilage of such land and land used as a park or garden.

The Inspector's conclusions as to "Opportunities for open air recreation" were set out in paragraphs 4.190-4.193 of the report (see above). In the final sentence of paragraph 4.192 the Inspector, in a somewhat convoluted conclusion, said that he did not consider it "unreasonable to conclude that the general question I have posed in relation to 'potential opportunities' for open-air recreation offering a markedly superior recreational experience (at paragraph 15 of Appendix 2) could be answered in the affirmative".

In Appendix 2 the Inspector dealt with "The Second Statutory Criterion - Opportunities for open air Recreation". Having set out the Agency's approach, he identified two common threads which had emerged from the objections and representations, which he considered in turn. The first of those was:

In paragraphs 13-16, the Inspector answered that question:

In paragraph 27 of Appendix 2, the Inspector said that he had carried forward these remarks into his consideration of the individual areas in contention.

As indicated in paragraph 13 of Appendix 2, the claimants accepted that it was inherent in the term "opportunities" that one could look to the future, and that consideration was not limited to the present facilities for open air recreation, for example the existing network of footpaths and bridleways. That was undoubtedly correct, given the powers in the other parts of the Act, for example to create new public rights of way, to promote long distance routes for walkers and riders and to make agreements for public access to open country.

Thus, the claimants rightly did not take issue with paragraph 9 of Appendix 2. However, Mr McCracken submitted that both in Appendix 2 and in paragraph 4.192 of the report, the Inspector repeatedly applied a less stringent test: that there had to be, not opportunities for open air recreation, but "potential opportunities". Put shortly, the Inspector was not asking the question 'are there opportunities', but 'even if there are no opportunities at the moment, might there be opportunities in the future'. Mr Elvin pointed out that the Act did not define "opportunities". He submitted that the Inspector's approach to "opportunities" was the correct one and in any event the court would allow the tribunal of fact a broad discretion as to the meaning of an undefined, ordinary English word: see R v Monopoly & Mergers Commission ex parte South Yorkshire Transport Ltd [1993] 1 WLR 22, per Lord Mustill at pages 29 and 32. In any event, he submitted that no exception could reasonably be taken to the "broad, practical and common sense" approach adopted by the Inspector (see paragraph 16 of Appendix 2).

I prefer Mr McCracken's submissions on this issue. It is one thing to consider whether there are opportunities or whether there is potential for something to occur, it is another thing to consider whether there are potential opportunities for something to occur. Asking the latter question lowers the statutory threshold. An occasional reference to "potential opportunities" might well not have been a cause for any real concern, since Inspector's reports should be read in a broad and common-sense way and legalistic nitpicking is not appropriate. However, it is clear that the Inspector's use of the test "potential opportunities" was not an occasional oversight. The expression is used consistently throughout the Inspector's consideration of the first of the two general issues, and is expressly carried forward into and used in, paragraph 4.192 of the Inspector's report.

I accept Mr Elvin's submission that in the first sentence of paragraph 14 of Appendix 2 the Inspector was responding to some objectors (not the claimants) who had "appeared to adopt a very narrow approach". However, it will be noted that in deciding in the somewhat convoluted final sentence of paragraph 4.192 that it was not unreasonable to conclude that the general question posed in relation to "potential opportunities for open air recreation" (my emphasis) in paragraph 15 of Appendix 2 could be answered in the affirmative, the Inspector was neither using the statutory language, nor was he answering the simple question: "Does this area have potential (or scope) to provide a markedly superior recreational experience"; but instead he was considering whether it was feasible to conclude that an area's "potential scope" to provide a markedly superior recreational experience could be achieved within a reasonable timescale after designation. Whether one chooses to translate the statutory criterion in relation to any particular area as "the potential" it affords for open-air recreation, or "the scope" it affords for open-air recreation", rather than "the opportunities it affords for open air recreation" may not matter overmuch, but what one should not do is water down the statutory requirement by applying a vaguer test such as "potential scope" or "potential opportunities". I accept that these criticisms of the Inspector's approach to paragraph (b) in subsection 5(2) might be regarded as merely academic if he had, in his report, clearly explained why the claimant's land did afford opportunities for open air recreation. It is therefore convenient to test the Inspector's approach in principle by reference to his approach in practice in respect of the claimant's land by looking at grounds (3)-(6) which challenge detailed aspects of the manner in which the Inspector considered this issue.

Although they are contained in the section of the Inspector's report which deals with the Inspector's conclusions under the heading "Opportunities for open air recreation", paragraph 4.190 and most, if not the whole, of paragraph 4.191 would appear to be concerned with the "natural beauty" criterion (see above). Mr Elvin accepted that motorists enjoying views from the A35 and other minor roads would not be enjoying "open air recreation" for the purposes of section 5(2). He submitted that the visual attractiveness of the land of Hinton Park from the A35 and other roads was "an important part of the background" and that, particularly on other minor roads, including that leading to Forest Lodge within the park, there could be others - walkers, riders, on horses and bikes - who could be enjoying open air recreation. Unfortunately, paragraph 4.191 does not distinguish between, for example, walkers and riders on the minor roads (about whom there appears to have been no detailed information before the Inspector: see the extract from Ms Martin's proof of evidence above), and others travelling through the area, including motorists on the A35.

While I accept Mr Elvin's submission that the Inspector did not erroneously believe that motorists enjoying the views from their cars on the A35 would be engaging in "open air recreation", and would not therefore have allowed the application on ground (5) if it had stood alone, I am satisfied that reading paragraph 4.191 as a whole (and in conjunction with paragraph 4.190) it is not primarily, if at all, concerned with whether the claimant's land affords "opportunities for open air recreation" but rather with its visual attractiveness as high-quality landscape, which is quite a different matter (see also the discussion of ground (2) above).

That leaves paragraph 4.192 as the only substantive discussion in the Inspector's report of the section 5(2)(b) criterion in so far as it relates to the claimant's land. The Inspector begins by noting that "there is little public access to this particular section of the area ... south west of the perambulation". What then were the opportunities for open air recreation? The Inspector referred to two factors: (1) the Estate's "track record", and (2) the fact that "circumstances can change". Mr McCracken submitted that the Inspector was simply wrong in respect of the first of those two factors. On the evidence the Hinton Estate had no such track record. By contrast, the Avon Tyrrell Estate did have such a track record for the reasons explained in paragraph 8.81 of Ms Reynolds' proof of evidence (see above). He submitted the Inspector had simply confused the two estates.

An application by Mr Elvin to adduce a witness statement from the Inspector stating that he did not confuse the two estates, as late evidence (the witness statement was dated 2nd September 2005), and an application by Mr McCracken to cross-examine the Inspector if the witness statement was admitted into evidence, were not pursued after it became clear during the course of submissions that both parties were agreed that the real issue was whether there was any evidence that the Hinton Estate did have such a track record, and if there was, whether the Inspector's reasons in relation to this issue sufficiently clear.

The best Mr Elvin could do was to point me to paragraph 8.74 of Ms Reynolds' evidence, which had said this:

There was no suggestion that the information in paragraph 8.74 of Ms Reynolds' proof of evidence was altered in any way by oral evidence at the Inquiry. While an indication at the Inquiry that the various commons within the estate "could be made available for public access subject to protection of their nature conservation status and interest" might, at a pinch, be described as a "track record of considering access to other nearby areas", it could not reasonably be described as a "track record of granting access". The evidence before the Inspector clearly demonstrated precisely the opposite: there was no track record of the Hinton Estate granting access. Not every error of fact will result in an error of law. However, this particular factual error was central to the Inspector's consideration of the criterion of paragraph (b) of section 5(2). Ground (4) is therefore made out and it reinforces ground (1).

That leaves the Inspector's proposition that "circumstances can change". So they can, but as the Inspector observed in paragraph 14 of Appendix 2 "some forms of change are more likely to occur than others". While I accept Mr Elvin's submission that the Inspector did not erroneously rely on CROW in deciding whether the claimants' land afforded "potential opportunities for open air recreation", neither did he reject the claimants' evidence that CROW could not be relied upon for this purpose at Hinton Park: see paragraph 8.77 of Ms Reynolds' evidence, and paragraph 4.116 of the report.

The Inspector acknowledged that the estate had "expressed a current desire not to provide access to the area in contention". Absent any track record of granting access, absent any "current desire" to do so, and absent any prospect of the public being able to assert any rights under CROW, what was left other than (as the claimants put it) "vague aspirations"? As a general proposition, the assertion that "circumstances can change" cannot possibly be gainsaid, but absent a realistic assessment of the prospects for change in any given set of circumstances, the general proposition cannot, by itself, justify a conclusion that criterion (b) in subsection 5(2) is met in respect of any particular area. As with ground (4), ground (3) reinforces ground (1) and demonstrates that the Inspector was neither in theory nor in practice applying the correct statutory test in subsection 5(2)(b), but instead a watered-down test where vague hopes, rather than opportunities, sufficed.

Ground (6) criticises the first sentence in paragraph 4.192 of the report that "it is not necessary for such access to exist over every part of a qualifying track". As I understand the claimants' argument under this head, they would accept that the proposition is correct within the main body of a National Park, so that a designation can "wash over" a large tract even though there is no public access to parts of the tract, but they submit that when defining the outer boundary of a National Park a more detailed examination of where there are, and are not, opportunities for open air recreation is required. Mr Elvin submitted that there was no warrant in the Act for such a distinction being drawn between the main body of a National Park and its outer boundary.

While I accept that submission in principle, in practice there may well be more scope for excluding particular areas which do not meet the criteria in subsection 5(2)(b) when defining the outer boundary of a National Park. Whether that is so in any particular case will be very much a matter of judgment for the Inspector on the ground. In view of my conclusions that the Inspector erred in principle in his application of the "natural beauty" criterion, and both in principle and in detail in his application of the "opportunities for open air recreation" criterion to the claimant's land, ground (6) does not add anything of substance to the claimants' case.

For the reasons set out above, I grant the application and quash the order in so far as it affects so much of the claimant's land as in contention at the Inquiry, as shown on the claimants' plan showing their suggested New Forest National Park Boundary.