Bellway Homes Limited, R (on the application of) v Kent County Council

For the trigger event in paragraph 4 of Schedule 1A to the Commons Act 2006, a development plan must identify the relevant land, or a sufficiently defined area including it, for realistic potential development. A policy that merely permits development if detailed criteria are satisfied does not suffice where it provides no relevant nexus with particular land. The plan must be read as a whole and in context. Positive drafting, such as stating that development “will be permitted”, does not convert a substantively restrictive countryside or Green Gap policy into an identification of land for potential development. The question is a legal one for the court, and is not confined to Wednesbury review.

Bellway Homes challenged Kent County Council’s decision to accept an inspector’s report and determine that the adoption of the Canterbury District Local Plan had not triggered paragraph 4 of Schedule 1A to the Commons Act 2006. The challenge concerned land at Two Fields, Westbere, in a Green Gap governed by Policy OS6.

The claimant argued that Policy OS6 identified the land for potential development because it stated that development would be permitted where specified criteria were met. The Council and interested party contended that the plan, read as a whole, imposed countryside and Green Gap restraints without identifying the application site for potential development. The central issue was whether the statutory trigger had occurred.

1. The claim was dismissed. The court declared that the application site did not fall within paragraph 4 of Schedule 1A to the Commons Act 2006 and that Kent County Council retained jurisdiction to determine the town or village green application.
2. The occurrence of a trigger event under section 15C is a question of precedent or jurisdictional fact for the court. It is not merely a judgment reviewable on Wednesbury principles.
3. The statutory language requires the development plan itself to identify the land for potential development. “Potential” is broad, but the assessment must be realistic rather than theoretical because section 15C removes a citizen’s statutory right to apply for registration of a town or village green.
4. The plan must be considered as a whole, including relevant policies and explanatory text. The relevant question is whether the plan’s meaning and purpose is to identify the land, or a sufficiently defined area including it, with the object or purpose of potential development.
5. Policy OS6 did not meet that test. It protected Green Gaps from coalescence and imposed relatively strict development control. Its reference to development being permitted applied only if the policy criteria were satisfied and did not identify every part of each Green Gap for potential development. Applying the criteria to a hypothetical proposal would not establish the necessary nexus with particular land.
6. The same analysis applied to general rural policies permitting limited housing, agricultural, rural business, tourism or recreational development subject to criteria. Such policies allow proposals to come forward in unidentified locations; they do not themselves identify land for potential development. A site-specific allocation may do so even where further criteria apply.
7. The positive drafting of Policy OS6, adopted to accord with planning guidance favouring positive wording, did not alter its restrictive substance or statutory effect. The Green Gap policy therefore did not constitute a trigger event.