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

For statutory designation of a National Park, the criterion of opportunities for open-air recreation permits consideration of future opportunities, but requires a realistic and adequately reasoned basis for concluding that those opportunities exist or can be achieved. General assertions that circumstances may change, or vague and speculative aspirations, are insufficient where land has no public access and no identified means of securing it. A material mistake of fact is legally significant where it contributes materially to the decision, even if it is not decisive. A designated tract need not provide public access over every part, and the statute draws no express distinction between its interior and outer boundary. The appeal was dismissed because the recreational criterion had not been met. The natural beauty issue was left undecided, and later statutory amendments did not automatically cure the reasoning defect.

The estate owners challenged the confirmation of the New Forest National Park designation insofar as it included Hinton Park. The challenge was brought under Part III of the First Schedule to the National Parks and Access to the Countryside Act 1949. Mr Justice Sullivan allowed the application and quashed the confirmation insofar as it affected the disputed land: [2005] EWHC 2618 (Admin).

The Secretary of State appealed. The issues included the meaning of the statutory criteria of natural beauty and opportunities for open-air recreation, the relevance of future recreational opportunities, the effect of the Countryside and Rights of Way Act 2000, an alleged factual mistake concerning access by the estate, and views from public roads. The Natural Environment and Rural Communities Act 2006 amended the statutory scheme during the appeal. The central issue was whether the recreational criterion had been lawfully applied on the material available when the confirmation decision was made.

Appeal dismissed. Chadwick LJ gave the judgment of the court, with which Wall and Lloyd LJJ agreed.

1. The phrase “opportunities for open-air recreation” was not confined to facilities existing at the date of designation. A decision-maker could consider future opportunities. However, potential opportunities had to be assessed realistically. The inspector had to explain how they could be achieved within a reasonable timescale, without unrealistic resources or excessive interference with competing interests. Vague or unrealistic aspirations were insufficient.
2. The inspector had failed to provide that explanation in relation to Hinton Park. There was little public access, the estate did not currently wish to provide access, and there was no identified source of public access. The Countryside and Rights of Way Act 2000 did not provide rights of access over the parkland. The inspector’s mistaken belief that the estate had a track record of granting access to nearby areas was material to his conclusion and was, on the evidence, a predominant factor. The court applied the principle stated in R v Independent Television Commission, ex p Virgin Television, The Times, 17 February 1996, and affirmed in E v Secretary of State for the Home Department, R v Secretary of State for the Home Department, [2004] EWCA Civ 49.
3. Public access was not required over every part of a qualifying tract, and the statute did not distinguish between the main body and outer boundary of a designated area. In practice, however, there might be greater scope to exclude land at an outer boundary that failed to satisfy the recreational criterion.
4. Views enjoyed by motorists from roads were not, by themselves, open-air recreation. The inspector’s reasoning about visual opportunities was properly understood as addressing landscape attractiveness rather than treating motorists’ views as recreational access.
5. The court did not decide the natural beauty issue. The 2006 amendments did not retrospectively alter the law governing the 2005 confirmation, although they would govern any later variation. The amendments did not make a quashing order pointless because it remained necessary to address how recreational opportunities could be promoted in the absence of public access.
6. The court noted that a successful challenge to the confirmation decision could have the substantive effect of quashing the designation order itself, following the approach discussed in de Rothschild v Secretary of State for Transport, [1988] 1 PLR 67 and [1989] 1 All ER 933. The parties were invited to consider the appropriate form of order.

• Court of Appeal (Civil Division) dismissed the Secretary of State’s appeal and upheld the quashing of the confirmation insofar as it affected the disputed Hinton Park land.
• High Court, Administrative Court Mr Justice Sullivan allowed the judicial review challenge and quashed the confirmation insofar as it affected the disputed land: [2005] EWHC 2618 (Admin).