Western Power Distribution Investments Ltd v Cardiff County Council

Land held under a statutory trust for public walks or pleasure grounds cannot be managed as a local nature reserve where nature conservation requires restrictions on recreation for its own sake. The trust permits restrictions ancillary to public recreational use, including controls protecting other users, but not restrictions imposed primarily to preserve habitats or species. A local nature reserve and the statutory trust may coexist in principle. Compatibility must be assessed by comparing recreational use with the conservation interest and the restrictions needed to protect it. A reasonable compromise between the two statutory priorities is insufficient where each regime requires its own interest to prevail.

Cardiff County Council designated land held under section 164 of the Public Health Act 1875 as the Nant Fawr Local Nature Reserve under section 21 of the National Parks and Access to the Countryside Act 1949. The claimant challenged the 2009 designation and a replacement decision made on 7 October 2010. It argued that the public recreational trust and the statutory priority given to nature conservation were incompatible. The central issue was whether the proposed management arrangements could lawfully satisfy both statutory regimes.

1. The court quashed both the Council’s decisions of 1 October 2009 and 7 October 2010 designating the land as a Local Nature Reserve.
2. There is no inevitable conflict in every case between land held under section 164 of the Public Health Act 1875 and designation under the National Parks and Access to the Countryside Act 1949. Compatibility depends on the land, its use and the management required.
3. Section 164 requires the Council to permit public use of the land as public walks or pleasure grounds. Restrictions may control hours, anti-social behaviour and ancillary facilities, or protect the recreational enjoyment of other users. They cannot restrict access or activities primarily to preserve nature as an independent interest.
4. Under section 15 of the 1949 Act, recreation may accompany conservation only where recreational management does not compromise conservation. The statutory priorities are therefore reversed: conservation has priority under the 1949 Act, whereas recreation is the governing purpose under section 164.
5. The correct inquiry is whether the actual and reasonably likely recreational use, compared with the conservation interest, requires restrictions imposed for conservation purposes which impair public recreational use. The issue is one of statutory compatibility, not Wednesbury rationality or the reasonableness of the Council’s proposed compromise.
6. Here the management plan treated informal walking, dog walking, cycling and children’s play as problems to be controlled through barriers, fencing, diversion and habitat management. Those measures were intended to protect conservation for its own sake and therefore conflicted with the section 164 trust. Continued public access did not cure the conflict.
7. The challenge based on the absence of a structured comparative study of special interest failed. The Council was entitled to conclude that the statutory test was met. Rhyd-y-Penau Park was a marginal but lawful inclusion, and the resource-cost point was not unlawful.