Wiltshire Council v Cooper Estates Strategic Land Ltd

A development plan document identifies land for potential development where its policies identify the land, whether individually or as part of a wider defined area, as having development potential. Specific allocation, suitability, probability of development and likely planning permission are unnecessary.

Inclusion within a settlement boundary is not sufficient by itself. The consequences which the plan attaches to inclusion must be considered. A presumption in favour of sustainable development may establish the required identification, although a countervailing policy could prevent that conclusion. The document must be construed as a whole, with its policies taking precedence over supporting text.

A landowner objected to an application to register a small area within the Royal Wootton Bassett settlement boundary as a town or village green. It contended that Core Policies 1 and 2 of the adopted Wiltshire Core Strategy identified the land for potential development. This would constitute a trigger event under the Commons Act 2006 and suspend the right to apply for registration.

Wiltshire Council rejected the objection and registered the land. The Administrative Court allowed the landowner's challenge and quashed that decision. The Council appealed. The central issue was what a development plan document must do to identify land for potential development.

1. Appeal dismissed. The Wiltshire Core Strategy identified the application land for potential development. The statutory right to apply to register it as a town or village green was therefore suspended.

2. A development plan document is construed as a whole as a matter of law. Its policies are the key provisions. Supporting text may assist their interpretation but cannot override them. Core Policy 1 identified the settlements where sustainable development would take place. Core Policy 2 created a presumption in favour of sustainable development within their defined boundaries.

3. The statutory expression concerns identification for potential development, rather than identification for development itself. Potential is a broad concept. It does not require likelihood, probability, suitability, acceptability, an allocation or an expectation that planning permission will ultimately be granted. Identification may occur through a mapped area, a verbal description or prescribed criteria, and the land may form part of a larger identified area.

4. Mere inclusion within a settlement boundary does not invariably suspend the right to apply for registration. The consequences which the development plan document attaches to inclusion determine whether the land is identified for potential development. Here the policies and supporting text showed that land within the boundary was already treated as developable land. No countervailing policy contradicted that conclusion.

5. The court did not exclude the possibility that another policy, read with the plan as a whole, might displace a prima facie identification. Such a policy could establish that particular land lacked development potential. The registration authority need not, however, predict whether planning permission would be granted. Floyd LJ added that both “potential” and “development” are wide, with development extending to matters such as a change of use.

6. This construction accorded with Parliament's purpose. Recreational land with identified development potential should be protected, if appropriate, through the planning system rather than registration as a town or village green. Permitting registration here would frustrate the plan's objectives for future housing growth. Floyd and Henderson LJJ agreed with Lewison LJ.

1. Court of Appeal (Civil Division): The Council's appeal was dismissed. The court upheld the order quashing the registration of the land as a town or village green: [2019] EWCA Civ 840.
2. High Court, Administrative Court: Mr David Elvin QC, sitting as a Deputy High Court Judge, allowed the landowner's judicial review challenge to the Council's registration decision. No neutral citation is stated in the judgment.
3. Wiltshire Council: The Council had rejected the landowner's trigger-event objection and registered the land as a town or village green.