Court of Appeal hands down ruling on village greens and 'trigger events'

The Court of Appeal has rejected an appeal by a local authority in a key ruling on the trigger events that suspend the registration of village greens.

In Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840 Lord Justice Lewison said the issue on the appeal was 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 is suspended.

The background to the case was that on 20 April 2016 Mr Gosnell, the interested party, applied to Wiltshire County Council to register land as a TVG. The land in question was a triangular area, of some 380 sq m, adjacent to Vowley View and Highfold, Royal Wootton Bassett.

On one of the maps that the Court of Appeal was shown the land was on the edge of the settlement boundary of Royal Wootton Bassett; but the judges were told that adjacent land outside that boundary had since been developed for housing.

Cooper Estates Strategic Land, which owns the land, 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 in Schedule 1A had occurred, and there had been no terminating event in relation to that trigger event.

Officers at Wiltshire 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 Estates applied to the Administrative Court to challenge the registration. The challenge succeeded in the High Court before Mr David Elvin QC, who accepted Cooper's submission that: "… the Core Strategy through CP1 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."

For this reason Judge Elvin QC held that the right to apply for registration of the TVG had been suspended.

Wiltshire appealed against his order. Cooper sought to uphold it on additional grounds.

The Court of Appeal has now dismissed the council’s appeal.

Lord Justice Lewison said: “In my judgment the question is not whether the land has been identified ‘for development’ but whether it has been identified ‘for potential development’. [Counsel for Wiltshire] 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.”

The judge added: “[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 [counsel for Cooper Estates] that these policies clearly identify the land as having potential for development. This reading is supported by the explanatory text.”

The judge also agreed with Cooper Estates’ QC that the wording necessarily implied that land within the settlement boundary was already developable land.

Mr Justice Lewison rejected the council’s argument that within the settlement boundaries there were 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, Wiltshire’s QC submitted, was plainly not "identified for development" despite being within the settlement boundary. Although a development plan document must be read as a whole, it cannot be right that a registration authority has, in effect, to decide whether planning permission would be granted before deciding whether to entertain an application for the registration of a TVG, counsel said.

“This submission too, in my judgment, rests upon the false premise that the trigger event is identification of land ‘for development’ rather than ‘for potential development’,” the Court of Appeal judge said.

“The registration authority would not be required to consider whether planning permission would be granted. I do not rule out the possibility that prima facie identification of land for potential development by one policy could be contradicted by countervailing policies elsewhere in the plan. But that is not this case. The Council does not rely on any countervailing policy which contradicts policies CP1 and CP2.”

Lord Justice Lewison continued: “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 [counsel for the appellant and the respondent] 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.”

Landmark Chambers, whose Paul Brown QC and Stephen Morgan appeared for the registration authority, said the decision had potentially far-reaching implications. “While much will depend upon the wording of the particular policies involved, the decision is potentially relevant in any area where the local planning authority relies upon settlement boundaries to distinguish urban areas, where development will normally be considered ‘sustainable’, from open countryside.”

It added: “The Court of Appeal’s discussion of the potential effect of countervailing policies also opens up the possibility that registration authorities may have to examine the development plan more widely every time a TVG application is being considered.”