Cooper Estates Strategic Land Ltd, R (On the Application Of) v Wiltshire Council

The subject land is an irregularly, triangular shaped area of some 380 sqm adjacent to Vowley View and Highfold, Royal Wootton Bassett ('the Land") and appears to be an amenity space in an establishing area of housing, or at least was so until the fencing and gate, which had been installed by the Claimant in 2006, was locked in 2015.

The Claimant is the owner of the Land which, having unsuccessfully objected to the application, seeks an order quashing the decision to register and the consequential registration.

The application to register the Land was made pursuant to s. 15(1) and (3) of the 2006 Act by Mr Richard Gosnell, the First Interested Party. It was received by the Council as CRA on 12 April 2016. It was accompanied by 27 witness evidence questionnaires (including plans and photographs) relating to the claimed recreational use of the land and supporting the application. It was stated that the Land had been used by the inhabitants of the locality for the purposes of lawful sports and pastimes for a period of 20 years, as ofright, with the use of the land ending in May 2015 when a gate installed by the Claimant was locked. Prior to 2006 the Land had mistakenly been thought to be owned by the local authority and had been regularly maintained by it but the Claimant fenced the land in 2006 and installed a gate which was left unlocked. While it was effective to end local authority mowing, it did not prevent access by local inhabitants. See e.g. the answers in the questionnaires by Mr and Mrs Pope (Bundle pp. 496, 503, 510 and 517) and the Decision Report (below) at paras, 13 32-13.36 (under the heading "Have indulged as of right").

Before accepting and date stamping the application as valid, the CRA (through Miss Janice Green) investigated first whether the right to apply for registration had not been suspended by a "trigger event" within s. 15C and Schedule IA of the 2006 Act. If there had been found to be a trigger event, the application could not have been accepted: s. 15C(1) of the 2006 Act. Following Defra Guidance to Commons Registration Authorities in England on Sections 15A to 15C ofthe Commons Act 2006 (December 2014 at the time the application was made, current version December 2016) the Council wrote to its own planning services (spatial planning and development management) and to the Planning Inspectorate all of whom returned confirmation that there was no trigger event. The CRA appears to have treated those responses as virtually conclusive (to judge by later statements in reports to Committee) and the Application was then accepted with the relevant date of receipt given as 12 April 2016 in accordance with R (Church Commissioners for England) v. Hampshire CC [20141 EWCA Civ 634. However, it is common ground between Mr Jones QC for the Claimant and Mr Morgan for the Defendant that this issue is a matter of law for the Court.

The press notice was in Form 45 and stated:

The Claimant's solicitor sent an email to the Council on 18 November 2016 enclosing an opinion from Mr Jones QC which supported their contention that the trigger event under

The email noted, raising the validity issue and also reserving the Claimant' s position with respect to the merits:

The opinion was sent to Mr Gosnell in accordance with the 2007 Regulations and he pointed out in written comments on 9 December 2016 that the CRA had "made due checks and ascertained that there were not events hindering the Application under this heading". He also took issue with the relevance of the Core Strategy, though wrongly considering that the issue of trigger events was only with existing developments. The Council wrote again to the Claimant on 10 February 2017 inviting representations on Mr Gosnell's comments by 10 March 2017 though not itself making any reference to having investigated whether there had been any trigger events. However, it was reasonably clear from this that Mr Gosnell knew that the CRA had considered trigger events and that this should have put the Claimant on notice, though it was not followed up by the Claimant in subsequent correspondence,

Legal advice was then taken from Mrs Marshall (Senior Solicitor) which was relayed by Ms Green to Ms Clampitt-Dix (Head of Service, Place Shaping, Economy and Planning) on 17 May 2017 as follows:

All parties were informed by the CRA on 1 1 September 2017 that the application would be considered by the Committee on 4 October 2017 and the Report would be available about 7 days before the meeting. In response to a request from the Claimant's solicitors on 15 September 2017 that the report would advise members that the application was invalid, Ms Green replied:

I note that Miss Green's "Decision Report", Annex C to the Report to the Northern Area Planning Committee of 4 October, was dated 28 June 2017 and included detailed advice, including the issue of the trigger event. That date is slightly misleading since, although it was drafted by Miss Green on that date, it was submitted to senior officers for their comments and not finalised until shortly before it was publicised. It is not clear why Miss Green could not at least have informed the Claimant that the CRA did not accept the Claimant' s representations made on the trigger event since that appears to have been the CRA ' s position since May 2016, confirmed in May 2017. Whilst some mention was made of the Council remaining neutral on the topic, pending members' decision, I see no reason why the fact of the consideration of the trigger event could not have been communicated to the Claimant as landowner. Indeed, the Council was not wholly neutral since it had satisfied itself sufficiently following Defra Guidance to consider the application valid and could have made it clear that the view was provisional and was subject to members' consideration of the Claimant's representations. A good deal of misunderstanding in this case could have been avoided had this point been communicated.

Nonetheless, further formal confirmation was sought from Ms Clampitt-Dix on 18 September 2018 for inclusion in the report and who, on 20 September, reiterated the view that there was no trigger event. That also was not communicated to the Claimant.

On 26 September 2017 the CRA published the Report for 4 October Northern Area Committee Meeting which annexed the 28 June Report, which set out in detail the CRA' s consideration of the evidence, the requirements of the 2006 Act and the authorities.

On 3 October 2017, the Claimant's solicitors emailed the CRA (just after 5.3 Opm, after Council office hours) to express its disappointment that the report had been produced without any further communication and that its advice was "deeply flawed". It added:

Paragraph 6 of the Decision Report stated:

On the Claimant's objections, the Decision Report stated in respect of the issue which forms Ground I of this challenge:

Accordingly, upon receipt of the application, Wiltshire Council, in its capacity as the Registration Authority, wrote to the planning authorities on 15 April 2016, including a list of trigger and terminating events, requesting details of any trigger/terminating events in place over the land at this time. Correspondence was addressed to Spatial Planning — Wiltshire Council; Development Control — Wiltshire Council and the Planning Inspectorate, all of whom identified that there were no "trigger events" in place over the land at that time, (without corresponding terminating events), which would extinguish the right to apply.

Wiltshire Council, as the Registration Authority must rely upon the responses given by the planning authorities. In this case the objectors' representations, regarding trigger events in place over the land, were forwarded to Spatial Planning at Wiltshire Council for further comment. The Head of Spatial Planning has given the following advice:

Therefore, the right to apply has not been extinguished and the Registration Authority must continue to determine the town/village green application, based upon the available evidence, which is not disputed by the objectors."

Although the Decision Report was produced before receipt of the Claimant's letter of 3 October, it nonetheless considered whether it should hold a public inquiry under the heading "Financial implications":

It is unnecessary to rehearse further the terms of the Decision Report which analysed in detail the evidence which had been presented to support the application and concluded that the application for registration should succeed. I note that Section 13 dealt with the evidence of user and satisfaction of the legal requirements in a detailed, logical and comprehensive manner (other than the points made afterwards on 3 October).

Following receipt of the representations of 3 October, a supplemental report headed "Additional Information" was produced as part of the Agenda for 4 October meeting, which also annexed the letter:

At 4 October 2017 meeting members agreed with the officer's advice and determined that the application was valid and should succeed. The land was then registered pursuant to that decision under Register Entry VG 65.

Following pre-action correspondence, including a letter before claim dated 2 November 2017 and a response from the CRA dated 16 November, these proceedings were commenced on 20 December 2017.

S. 15 of the 2006 Act provides for the making of an application to register land as a town or village green and states (in part):

S. 15C and Schedule IA of the 2006 Act remove the right to apply under s. 15 on the occurrence of a "trigger event" (provided it has not been ended by a "terminating event") as follows (to the extent relevant):

S. 15C(3)-(7) allow for the modification of the trigger events set out in the relevant

This provision highlights the purpose behind the introduction of s. 15C by s. 16 of the Growth and Infrastructure Act 2013 which was to implement the Government's response to the recommendations of the Penfold Review of non-planning consents (June 2010) which made recommendations to remove barriers to development and investment, caused by non-planning consents including the registration of town and village greens (Recommendation H, paragraph 4.37). See paragraph 3 of the Defra Guidance (2016 version):

This purpose can also be seen from the current list of 13 "trigger events" in Schedule IA to the 2006 Act which include -

The form of the trigger events are varied according to the nature of the trigger, for example in the case of planning applications (or permission in principle) they must selfevidently be "in relation to the land" since a proposal on land not subject to a registration application would not fall within the statutory mischief of registration which would inhibit development. Equally, the tenninating event for an application (refusal, withdrawal etc) is tailored to the mischief of an application for registration inhibiting future development and may mean that the exclusion of the right under s. 15 is short-lived if the application is refused.

On the other hand, in the case of development plans these will generally be wider in their effects than a planning application and to be longer-lived since development plans are intended to apply for many years. The issue there is whether the plan identifies the land for potential development since in the case of a plan policies may be more or less specific and still be relevant in terms of the statutory mischief even if they are not specific to the land itself but are sufficiently directed to an area, or circumstances, which include the land that a registration application would fall within the statutory mischief of inhibiting future development. A terminating event includes the superseding of the relevant part of the plan by a more recent policy in accordance with s. 38(5) of the Planning and Compensation Act 2004.

In my judgment, the purpose of the requirement to identify the land for future development is to create a sufficient nexus between the plan and the land so that it does not fall within paragraph 4 simply because there are plan policies that generally encourage certain categories of development, or in certain circumstances. To do so would unduly restrict the s. 15 right since many, if not most, development plans contain policies that

The term "identifies" is not a defined term nor one with particular meaning in planning (such as "allocate") although it appears in at least one other context, very different from the present, discussed by Lindblom J, (as he then was) in West Kensington Estate Tenants and Residents Association v Hammersmith and Fulham LBC [2013] EWHC 2013 (Admin) at [561 where in the context of the regulation 6 of the Town and Country Planning (Local Development) (England) Regulations 2004, he had regard to the meaning of "identifies" in the Shorter Oxford English Dictionary:

In my judgment, the same is true of paragraph 4 having regard to the language used and the purpose of s. 15C and Schedule IA.

The specific trigger event relied upon by the Claimant here is that found in paragraph 4:

More specifically Chapter 4, which contains the relevant policies, is headed "Delivering the Vision - the Spatial Strategy for Wiltshire". This begins:

Paragraph 4.3 is explains that CPI falls into the broader, strategic category of the settlement strategy, CP2 is the delivery strategy i.e. the strategy to deliver development.

CPI provides for a hierarchy of settlements and identifies broadly what is expected of each:

CP2 provides the delivery strategy whilst setting out a series of strategically important sites for development:

CP2 also identifies a series of strategically important sites, excluding Chippenham. This makes it clear, which is not disputed by the Council in any event, that CP2 is not intended only to set a strategic framework for other plans but to Inanage development. It is a policy, as Mr Morgan acknowledged, that would be used to judge the acceptability of a development proposal and would be cited in support of a reason for refusal e.g. for a proposal to develop outside a settlement boundary which did not fall within the exceptions permitted by other policies (listed at paragraph 4.25). This is relevant to the issue of "potential for development" in paragraph 4, to which I will return.

My attention was drawn to a number of paragraphs of the supporting text of Chapter 4 of the plan but will not rehearse them all here but note that they support the view that CP2 is not directed simply to setting the spatial context in which other plans are to be produced but is also directed to regulating developmen

The reference to paragraph 4.25 in CP2 is to additional sources of development outside the identified settlements:

Whilst some of the sites are specifically named in CP2 it is also necessary to look at the explanation of the sources of development land generally in paras. 4.22 and 4.24:

At 4.27 it is said

The plan also sets indicative housing targets for community areas and notes at paras. 4.30 and 4.33 the need for flexibility (emphases added):

It is notable that, notwithstanding the above sources and the strategically important sites in CP2, the delivery strategy in CP2 does not limit development to sites so identified, or those allocated elsewhere in the plan or in other plans and draws a distinction between development within and outside settlement boundaries. A number of the categories of housing land supply described in 4.24 above appear to be ones which might fall within the scope of the general within/outside settlement aspects of CP2 including windfall sites, business expansion plans and regeneration projects, as well as accommodating the need for flexibility referred to at paragraph 4.33.

Even in the case of the strategically important sites in CP2, which on any view are "identified" and appear to me plainly to fall within paragraph 4, the support for development is not unconditional —

The Land lies within the settlement boundary of Royal Wootton Bassett for the purposes ofCP2.

Two grounds of challenge are advanced by the Claimant:

Mr Morgan did not pursue a submission of alternative remedy which would have not succeeded in any event since the opportunity to apply to rectify the register in future is not properly an alternative to dealing with defects which are said to invalidate the decision to register in the first place. Judicial review would undo the consequences of the invalid decision whereas an application to rectify would leave it in place as valid without any certainty as to whether such an application would be likely to succeed. Such an argument ought more properly to be considered as seeking the exercise of the discretion not to quash but it would not qualify on normal principles as a reason for not quashing a defective decision.

I am grateful to all counsel for their helpful written and oral submissions.

Mr Jones QC puts the Claimant's case simply:

In my judgment there is force in these submissions.

I agree with Mr Jones' further.point that the land does not have to be identified by the use of a line on a plan, but the fact that it is so identified is sufficient to bring it within paragraph 4. That line is used here to define the boundary of this market town within which there is a presumption in favour of sustainable development which is sufficient to identify the land for potential development. The fact that the Land is only part of the land so identified is not a bar to the application of paragraph 4 since the Land is nonetheless identified though it forms part of a larger area and the statutory purpose would be significantly undermined if only applied if the plan identified the area actually the subject of the registration application (and would create an easy means to avoid s. 15C by encouraging applicants to ensure that the land applied for did not coincide with the policy land),

There is no reason in principle why identification could not be through the means of a variety of planning methods. Allocation would, perhaps, be the paradigm example but identification could be through preferred areas for development, opportunity areas, reserved areas etc. The fact that that identified area might contain constraints would be no surprise and was no reason for not regarding that area as identified for potential development. It did not need to allow any development in any location within the area of the application of the policy in order to identify it for potential development. If that were the case, the statutory purpose would be seriously undermined since many if not most sites are subject to some constraints, even if they are of the more mundane varieties such as design and highway capacity.

Mr Morgan accepts that "the land" (meaning the land which is the subject of the s. 15 application, which must be correct) does not have to be identified by a specific policy the area of which coincides with that land but may form part of a wider areas. However, he submitted:

In approaching the question of whether policies CPI and CP2 mean that the Core Strategy "identifies the land for potential development" it is necessary to consider the language

On the face of it, as Mr Jones submits, the Core Strategy through CPI and CP2 identifies an area of land which includes the Land (i.e. the boundary of Royal Wootton Bassett) and identifies it for potential development by creating a presumption in favour of development within the settlement boundary. It appears to me that this falls within the normal meaning of "identifies" as referred to by Lindblom J. in West Kensington. Indeed, the point is underlined by the fact that CP2 creates a presumption within the settlement boundary and provides for the refusal of applications that fall outside that boundary. This, and the fact that CP2 is a development management tool which will guide the determination of a planning application, supports my view that the plan identifies the Land for potential development.

That boundary identifies an area which is much greater than the Land itself but it is not disputed by the Council that this itself is not a bar to treating a plan as falling within paragraph 4. Mr Morgan was unable, however, to formulate an approach in terms of scale which would necessarily preclude identification through a settlement boundary - which drove him to argue the "balance" and complexity of s. 15 points. I found neither of those points to amount to good reason to rule out identification through a settlement boundary

The existence of a potentially significant number of constraints within a settlement boundary does not in my view take the plan or policy outside paragraph 4. As Jones submitted, many sites have constraints in any event and "identified for potential development" does not mean that any application on any part of the site has to be one likely to succeed. "Potential" is a very broad concept, is not qualified, and is not to be equated with likelihood or probability. Moreover, as have already noted, even the sites identified as strategically important (which I did not understand Mr Morgan to contend fell outside paragraph 4) are subject to constraints set out in Annex A. There is no basis in principle to distinguish the constraints applicable to them and to those applicable within the settlement - whether or not they are spelled out or applicable due to the need to apply the plan as a whole. Indeed, for the reasons given, the existence of constraints does not appear to me of itself to take a plan (or the area in a plan) outside the terms of paragraph 4. There might be specific cases where the plan constraints do bear directly on the land and might on the facts preclude potential development, but this is not such a case. Mr Morgan accepted that there were no constraints that applied to the Land. Indeed, it is clear from a s. 78 appeal decision dated 6 June 2017 on an appeal by the Claimant (appeal ref: APP/Y3940/W/17/3169482) that the Council had not disputed that the Land was suitable in principle for development.

At several points in his skeleton and in argument Mr Morgan suggested, by reference to Mr Jones' skeleton argument, that the Land was not "sufficiently" identified but I consider that the issue under paragraph 4 is simply whether it is identified for potential development and it is unnecessary to gloss the statutory language to include a requirement of sufficiency.

I do not consider that there is a concept of "balance" to be implied into paragraph 4 or s. 15C. These provisions have been overlaid on the scheme of the 2006 Act by the amendments made by the 2013 Act. Parliament undoubtedly intended to make a change in the law. The only balance, if such it is, is the one struck by Parliament through the provisions and seeking to protect future development opportunities against the effect of

The complexity of s. 15 applications in my view does not assist. Their complexity is wellknown and can be taken to be well-known to Parliament. Indeed, they were built into s. 15 by the 2006 Act and Parliament has chosen to add to them additional requirements through the 2013 Act, including s. 15C and Schedule IA. I was equally unconvinced by the argument that the use of settlement boundaries might be difficult for potential s. 15 applicants to follow. On the contrary, the use of the boundaries in the context of these specific policies seemed to me to be easy to understand since they are reflected in a clear line on well-drawn inset plans. They appear to me to be a lot simpler to understand than a case where a policy might identify the land by written description rather than a line on a plan and where a greater degree of interpretation might be necessary.

For these reasons, I consider that the application under s. 15 was not validly made and that Ground I of the challenge succeeds.

I did not find the Defra Guidance that an authority should first check validity before embarking on the costly and time-consuming exercise of processing the application of assistance to the Claimant. If anything, it suggested that the Council would have done this first before sending out notifications on 30 September 2016.

Secondly, with respect to the failure to address the late representations sent after office hours on 3 October 2017, the evening before the committee meeting, and the complaint that the Additional Note provided by officers on 4 October, effectively reversed the burden of proof, confused the request for a hearing with the trigger issue when in fact it was related to the issue of implied permission and the unlocked gate, and the wish to test the evidence which had been presented, and wrongly suggested that the representations were too late, I am inclined to approach that Additional Note generously. Until the officers arrived at work on the day of the meeting, they had no idea that the Claimant had raised additional points relating to the evidence and had to hurriedly compile a response to put in front of members. The normal leeway afforded to interpreting officer advice and administrative decisions applies here with additional force given the lateness of the representations.

Whilst it is true that the Claimant reserved its position as to the merits a year earlier, it had done nothing before 3 October to suggest that it had any specific reservations other than on the question of validity. The CRA did not, as it was entitled to do in the exercise of its discretion under reg. 6(2)(a) of the 2007 Regulations, decide not to entertain the late representations, but sought to address them,

With regard to the allegation of the reversal of the normal burden of proof, which lies on the party seeking registration, the Additional Note said:

Approaching the matter with the appropriate degree of benevolence, I do not read that as a reversal of the burden of proof but merely a statement that no evidence had been presented. It is true that the Claimant's solicitors had Gust) raised the issue of implied

Even if, as was submitted, the issue of permission did not need to be communicated (see R (Newhaven Port & Properties Ltd.) v East Sussex County Council [2015] AC 1547 at noting that this was a case of public bye-laws rather than private land, as to which see [68]), and the gate being kept unlocked was an undisputed fact, it is a matter on which the Council could fairly conclude in any event that a hearing was not necessary. It may go to the legality or otherwise of their decision (as to which I express no view) but that is a matter to be drawn from the facts, not the investigation of disputed facts themselves. The Claimants did not contend that there was any communication of their consent to the use of the Land to the local inhabitants.

I accept that applications to register are often, though not invariably, dealt with through a non-statutory hearing and that the need for this may be greater in town and village green cases than in some areas of decision-making. See, for example, Sullivan J. (as he then was) in R (Cheltenham Builders Ltd.) v South Gloucestershire DC [2003] 4 P.L.R. 95 at and Carnwath J. (as he then was) in R v Suffolk County Council exp. Steed (1995) 70 P&CR 487 at 475-6. As Sullivan J. held at [361:

He noted at [40]:

Nonetheless, the issue of the need for a hearing has to be considered on the facts. Although Mr Jones placed considerable reliance on Sullivan J. 's judgment at [371-[38], the facts here are very far removed from Cheltenham itself where, as Sullivan J made clear at [38], the conclusions on user there could not be accepted without a hearing since as he found at [30] it could not reasonably have concluded on the officer's assessment of the evidence that the user requirement was met. In contrast, as Mr Morgan submitted, the sufficiency of the evidence here to found a conclusion that the required quality of user was made out, set out at length in Section 13 of the Decision Report, was not disputed.

I do not consider that the unfulfilled wish of a landowner to be able to cross^wexamine is, without more, a reason to find that a refusal to hold a hearing is unfair. It has to be coupled with a specific reason why it would be unfair to proceed without it. Fairness is a matter for the Court to judge, and even given the possible confusion of the issue of revocable permissions following Barkas, which it is unnecessary for me to resolve, I am satisfied that it was not unfair for the Council to decline to allow a hearing. Whilst that issue may have meant that the decision was flawed as a matter of law (which is academic given my finding on Ground l) that would not itselfjustify the holding of a hearing (though it might have justified a different ground of challenge). I make it clear that I have not thought it necessary to determine the issue of permission, implied or otherwise.

I therefore reject Ground 2 but this makes no difference to the disposition of the case since I have already found for the Claimant on Ground l.

The claim succeeds on Ground 1 and I hereby quash the Council's decision on 4 October 2017 to accept the application to register under s. 15 of the Commons Act 2006 and order that the register be rectified by the deletion of the entry relating to the Land, namely Register Entry VG 65.