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

A development plan document creates a statutory trigger event where it identifies the land for potential development. Identification need not correspond exactly with the land subject to the registration application. A settlement boundary may be sufficient, particularly where the policy creates a presumption in favour of sustainable development within that boundary.

The existence of planning constraints does not, by itself, prevent land from being identified for potential development. The statutory language does not require a further assessment of sufficiency or a judicially devised balance between the right to apply for registration and the protection of development opportunities.

The claimant, owner of land at Royal Wootton Bassett, challenged Wiltshire Council’s decision to register the land as a town or village green under section 15 of the Commons Act 2006. The application relied on twenty years’ use by local inhabitants for lawful sports and pastimes.

The claimant contended that the Wiltshire Core Strategy constituted a trigger event under section 15C and Schedule 1A, preventing the application from being made. It also argued that the Council acted unfairly by refusing to hold a non-statutory public inquiry into the evidence and the issue of implied permission.

1. Trigger event. The claim succeeded on Ground 1. Paragraph 4 of Schedule 1A to the Commons Act 2006 applied where an adopted development plan document identified the land for potential development.
2. The relevant question was whether the statutory words applied to the particular plan and policies, viewed in the context of the purpose of section 15C. The word “identifies” bore its ordinary meaning. It was unnecessary to impose an additional requirement of sufficient or site-specific identification.
3. Policies CP1 and CP2 of the Wiltshire Core Strategy identified an area including the land. The Royal Wootton Bassett settlement boundary was shown on the policies map, and CP2 created a presumption in favour of sustainable development within the defined limits of development. That was sufficient to identify the land for potential development, even though the boundary covered a larger area.
4. The presence of constraints did not prevent the statutory trigger from applying. “Potential” was broad and did not mean that every proposal on every part of the identified area would be likely to succeed. Parliament had struck the relevant balance through the statutory language and purpose, namely protecting potential development from the inhibiting effect of town or village green registration.
5. Fairness. Ground 2 was rejected. The claimant had received adequate opportunities to address the application and had not disputed the evidential sufficiency of the user evidence before its late representations. A landowner’s wish to cross-examine witnesses was not, without more, sufficient to make refusal of a hearing unfair. The court did not decide whether use of the land was by implied permission.
6. The Council’s decision of 4 October 2017 was quashed, and the register was ordered to be rectified by deleting Register Entry VG 65. Costs and consequential orders were reserved.

This was a first-instance judicial review. The judgment does not state any earlier substantive court decision.