Success for Blake Morgan in Judicial Review challenge to a Town and Village Greens Application: Cooper Estates Strategic Land Limited v Wiltshire Council  EWHC 1704 (Admin)
Blake Morgan acted for Cooper Estates Strategic Land Limited in a successful judicial review case against Wiltshire Council. Blake Morgan instructed Gregory Jones QC and Philip Petchey and the case was heard in the High Court, Administrative Court on 3 July 2018 in front of David Elvin QC (sitting as Deputy High Court Judge).
The case concerns the registration of land at Vowley View, Royal Wootton Bassett as a town or village green under the Commons Act 2006 and in particular whether a trigger event occurred in relation to that land that prevented Wiltshire Council from registering it as such.
Trigger events are contained in section 15C of the Commons Act 2006 and were introduced by the Growth and Infrastructure Act 2013. They provide a layer of protection which prevents land from being registered as a town or village green under certain circumstances. The list of trigger events is set out in Schedule 1A of the Commons Act and this also sets out the termination events by which triggers cease to have effect. In all cases the trigger events must relate to the development (whether past present or future) of the land.
In this instance, an application was made to register the land as a town or village green in April 2016. The Council carried out an investigation as to whether there had been any trigger events; after concluding there were not, the land was registered in October 2017.
Cooper Estates brought a case against Wiltshire Council and claimed that it had been incorrect to register the land because the trigger event set out in paragraph had been engaged. This states that a development plan document that has been adopted under the Planning and Compulsory Purchase Act 2004 and which identifies the land for potential development is a trigger event. The corresponding termination events are the policy document being either revoked or superseded. Cooper Estates argued that the Wiltshire Core Strategy 2015 constituted a trigger event and that, as no termination event had occurred, the land should not have been registered.
The key issue that the court had to deal with to determine whether the trigger event had taken place was whether the land that is subject to the trigger event had been identified. David Elvin QC stated that the issue of identifying the land was important "to create a sufficient nexus between the plan and the land" that is distinct from a local policy that generally encourages development without specifically identifying the relevant land to be developed.
In policy CP2 of the Wiltshire Core Strategy 2015 there is a "presumption in favour of sustainable development" within certain types of settlement that are listed and identified on a plan within the strategy. In Policy CP2 there is a "presumption in favour of sustainable development" within certain types of settlement that are listed and identified on a plan within the strategy. David Elvin QC determined that the Wiltshire Core Strategy was capable of giving rise to a trigger event and that the line on the plan, whilst not necessary to identify the land, was sufficient to identify the land for this purpose. Furthermore, he noted that "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" of the trigger events and dismissed the Council's argument that the land needed to be "sufficiently" identified.
The court therefore found in favour of Cooper Estates Limited and ordered that the Council's decision to register the land at Vowley View as a town or village green be quashed. Costs were awarded to Blake Morgan's client and the Council was refused leave to appeal.
This is an important case in providing guidance on how paragraph 4 acts to prevent the registration of land as a town or village green in relation to development plan documents. In particular, if the land in question is within settlement limits and the development plan contains a presumption in favour of development within these settlement limits, then that is enough to identify the land for the purposes of paragraph 4. This is supported further if development is not permitted under the development plan outside of such settlement boundaries. The case also highlighted that constraints within a settlement boundary does not hinder paragraph 4; the land merely need have the "potential" to be developed but such development does not need to be likely.
The Judge awarded costs in favour of Cooper Estates and refused the Council leave to appeal.