Month: May 2018

So Who Did Win The SPG JR?

Isn’t it heartwarming when the opposing parties in litigation all claim to have won? He said wryly.

Ouseley J’s judgment in McCarthy & Stone Retirement Lifestyles Limited, Churchill Retirement Living Limited, Pegasus Life Limited and Renaissance Retirement Limited v Mayor of London was handed down at 10.30 am on 23 May.

The Mayor rapidly issued a press release that morning, Judge rules in favour of Mayor’s threshold approach to housing.

However, the subsequent press releases by McCarthy & Stone Judge rules in favour of retirement consortium’s judicial review of the Mayor of London’s SPG and by Renaissance Retirement later that day seemed to tell a different story.

So that they can be checked for factual, typographical or grammatical errors or ambiguities, Planning Court judgments are usually issued in draft to the parties at least 24 hours ahead of being handed down, under conditions of strict confidentiality. Disclosure beyond the lawyers and parties themselves is a contempt of court and can bring criminal sanctions. However, what that advance sight does mean is that, by the time that the judgment is formally handed down (often with the parties not needing to be present and with submissions about remedies, costs orders and so on dealt with separately by email), the parties have got to grips with the often complex analysis within it and are ready to influence the way in which the narrative appears in traditional and social media, particularly the breaking online news items in the specialist press.

Planning law can be difficult in its abstractions and it can take time and strong coffee to arrive at a full understanding of the implications of a judgment (particularly without a familiarity with the evidence presented and submissions made to the court). This blog always includes links to the judgment transcripts because, however detailed the summary, there is no substitute for reading the document itself, but even then it can be hard. All credit to Holgate J in Parkhurst for appending parts of the inspector’s report to provide readers with the necessary context, but that was still a complex judgment (there have been some glib summaries!) and always of course watch for the political spin (Cheshire East Council’s “Cheshire East wins landmark legal judgement for residents in fear of housing sprawl” press release, following its loss in the Supreme Court in Suffolk Coastal , with ultimately an award of costs against it, being a classic of the genre!).

Back to the case in hand. So who really did win?

The claimants are all developers of specialist housing for the elderly. Their main concern with the Mayor’s 2017 affordable housing and viability SPG was that their schemes, usually on small sites, are caught by its requirement for a late stage viability review but were not caught under the adopted London Plan, which refers to the mechanism in the context of schemes which “in whole or in part…are likely to take many years to implement“.

[I summarised the SPG in my 20 August 2017 blog post 20 Changes In The Final Version Of The London Mayor’s Affordable Housing & Viability SPG. (Warning: the Mayor of London’s SPGs are not subject to the same legal regime that applies to local planning authorities in preparing SPDs, summarised in the first part of my 1 December 2017 blog post What’s For The Plan, What’s Supplementary?)]

The claimants’ evidence was that they developed smaller sites – “usually brownfield, higher build costs, significant communal facilities and spaces which were not for sale – making them more costly per square metre than most market housing, and particularly so in London. These schemes were constructed in a single phase, and could not meet affordable specialist housing accommodation requirements on-site, as had been accepted for years; they always provided viability appraisals to justify off-site contributions to affordable housing, and always had to be completed as a whole before any elderly occupiers moved in; they had a markedly slower selling rate. This made the Claimants less able to compete with general house builders in site acquisition.”

Their evidence was that “the acute pressures, on the viability of specialist housing schemes, made it essential that the risk of the development’s returns falling significantly below expectations was reduced to a minimum. They relied on various forms of borrowing to fund site purchases. The standard but notional 20 percent development return used in such appraisals was the bare minimum “on the basis that the risk associated with the affordable housing cost is known…If there is a risk that [that] cost might rise significantly, the risk profile becomes unacceptable….” Mr Warren emphasised that it is the risk which matters when deciding on what price to pay for a site. And it is that extra risk which Mr Burgess said affected them more than those in the general market. The effect of the late stage review was felt by the Claimants at the stage of bidding for the sites in the first place; the uncertainty about the amount of money which might have to be paid over at the late stage review affected the calculation of risk for borrowing, in such a way as to make the funding impossible.”

The judge made no ruling as to whether these concerns were justified and they were not accepted by the Mayor but this was the claimants’ explanation as to why the issues mattered to them.

[I note at this point that the proceedings were brought in the knowledge that the emerging new London Plan would in any event be proposing an equivalent late stage review mechanism. The parameters of that mechanism will no doubt be considered as part of the examination into the draft Plan (rumoured as likely to take place from November 2018 to February 2019)].

So the claimants’ objective plainly was to challenge that requirement for a late stage review of viability in relation to schemes like theirs which could not be said to be “likely to take many years to implement” (although the claimants sought to argue that it was single phase schemes that should not be caught).

In order to demolish that requirement, they contended that the SPG was unlawful and in so doing relied on three grounds:

“(1) it constitutes policy which should only be in the London Plan, which is currently being revised; the SPG was also inconsistent with that Plan;

(2) the SPG is a “plan or programme” which required a Strategic Environmental Assessment, SEA, under the Environmental Assessment of Plans and Programmes Regulations, SI 2004 No.1633 but which had not been undertaken; and

(3) it was produced without due regard being had to the constituent parts of the public sector equality duty, PSED, in s149 Equality Act 2010.”

Ouseley J rejected grounds 2 and 3 as unarguable and I’ll say no more about them.

In relation to ground 1, Rupert Warren QC for the claimants first argued that the SPG contained policies which could only be within the London Plan itself, namely “the 35 percent threshold, the fast-track, and the viability tested route, with three viability appraisals, (initial, early stage and late stage), the deliberately slow-track.”, all of which are indeed now proposed as policy in the draft London Plan.

The judge largely sidestepped this issue: “I do not want this judgment to be misread as holding that the SPG, and at this level of detail, must as a matter of law be in the London Plan or alternatively that the SPG cannot lawfully be included in the Plan as policy“. He did not interfere with the Mayor’s decision to treat the matters as appropriate for an SPG.

He commented that whether the emerging policies that reflect those SPG requirements are appropriately strategic for the Plan will be a matter for the inspector to determine following his or her examination of it: “They may contain a level of detail for the control of negotiations in quite small forms of development, and larger non-PSI developments, which excludes them from s334, though I do not doubt that the levels of affordable housing developed on new housing sites, can be seen as a strategic matter. In particular, when the draft London Plan goes for public examination, the question of whether draft policy H6, which takes the SPG into the draft Plan, is “strategic” and “general” may be one on which the inspector after the examination in public expresses a view. I would not want what I say to resolve the content of the draft London Plan, in advance of any inspector’s consideration and report.”

Rupert Warren QC’s second argument under ground 1 was that the SPG was inconsistent with the adopted London Plan. The judge stated:

“I am not prepared to hold that conflict with development plan policy of itself makes a non-statutory document unlawful. If it states that it is in conflict with the development plan because that plan is now out of date, for example because of changes in Government policy as might be found in the NPPF, or because the review of the Plan was delayed for proper reasons, I see no basis for it to be unlawful. The weight to be given to it is quite another in the light of s38(6), but the NPPF contains advice which conflicts with development plans up and down the country, and is not on that account unlawful. If an authority seeks to put forward some policy to cover the period when it is out of date, which could happen very quickly with new government policy, I see no reason to hold its actions unlawful. The plan-led system is supported by the proper application of s38(6), which can readily accommodate expressions of policy in conflict with the development plan. It does so often when a new draft plan is issued.”

So, inconsistency of itself does not lead to an SPG being unlawful. However, as identified by the judge:

“Here the Mayor clearly did not intend to produce SPG in conflict with the London Plan, let alone to avoid the development plan process. The Executive Summary of the SPG at [4] states that it is “guidance to ensure that existing policy is as effective as possible…it does not and cannot introduce new policy.” Indeed, the consistency of the SPG with the London Plan was a theme of the Defendant’s response to Grounds 2 and 3, SEA and PSED. It is inherent in the concept of SPG that it purports to supplement and not to contradict development plan policy. In so far as he did produce SPG in conflict with the London Plan, he would have misdirected himself as to the meaning and effect of either the Plan or the SPG and so failed, in promulgating it, to have regard to a material consideration. ”

So, inconsistency may well lead to an SPG being unlawful, if the policy-maker did not intend there to be any inconsistency, as was the case with this SPG.

Mr Warren is reported as pointing to two inconsistencies: “(1) the most important, is the introduction by the SPG of a late stage review to single phase sites where the London Plan only envisaged those for phased developments; (2) the adoption of a 35 per cent affordable housing on-site threshold at which no viability information was required, whereas the London Plan required each site to provide the maximum reasonable amount of affordable housing, which could be greater than 35 percent.”

The judge did not find that the 35% threshold was inconsistent with the adopted Plan (hence the focus of the Mayor’s press release!) but he did find there was inconsistency in relation to the requirement for a late stage review:

“By contrast, the language of the London Plan does not permit the imposition of a requirement for all sites over 10 homes, of a specific requirement to produce at least three viability appraisals, and more if the phases so turn out. Nor does it permit it exceptionally. It permits it only where, in general, the timescale or scale of development means that it is likely to take many years to complete a phase or the whole.”

So, he found for the claimants on the issue which had led them to bring the claim in the first place.

The judgment indicates that he will now “hear submissions on the appropriate remedy, if any, for the inconsistency I have found to exist“. But it seems to me that whether the relevant parts of the SPG are formally quashed or not is neither here nor there – the effect of the ruling is that the Mayor cannot lawfully rely on the SPG in requiring a late stage viability review in relation to the sorts of schemes that they promote.

Of course, that may be a Pyrrhic victory. As the judge goes on to comment:

“The status of SPG matters little now that the draft London Plan has been published and consulted upon, containing H6. Draft plans often are inconsistent with their predecessors and are given increasing weight as they progress, as outlined in the NPPF. Once the Mayor has considered the consultation responses to the draft Plan, the period for delivering which has expired, and has amended the Plan as he sees fit, it will have no lesser weight than the SPG. Giving some weight to draft policy which is inconsistent with the development plan is not uncommon. The NPPF contains material which is not consistent with developmental plans. The issue about the status and consistency of the SPG is not one of continuing importance.”

That may be so, but presumably the claimants went into the litigation with their eyes open, given the emerging draft London Plan. This will indeed be a temporary win if they do not persuade the inspector that late stage reviews are not appropriate in relation to smaller, usually single phased, schemes. But that will be an issue to be debated without pre-existing support in the form of the SPG.

Who won? The claimants on the point that I suspect they cared most about. The Mayor on the point that I suspect he cared most about: avoiding collateral damage from the proceedings, in the form of any wider adverse ruling on other matters such as the 35% threshold or the validity of the document as a whole.

Simon Ricketts, 26 May 2018

Personal views, et cetera

You’ve Been Frameworked!

By the Government’s 10 May deadline, over 20,000 responses were received to the draft revised NPPF, albeit apparently almost half of them duplicated campaign responses (for example the TCPA-led campaign to reinstate the express support for garden city principles that is in the current framework). The final version is expected in the week beginning 16 July. As many have pointed out, there surely is not enough time for any detailed consideration of all of that thinking, in the sliver of time between the initial process of collation and the final process of sign-offs and proofing?

Given that for development control purposes the policies in the revised framework will have immediate effect, perhaps it is as well if there are few surprises in the final version.

In England the 2012 NPPF has become a familiar (sometimes irritatingly vague) friend, but this is an appropriate point perhaps to remind ourselves of the peculiarities of the concept, born of the reforms introduced by the incoming coalition government in 2010, that swept away centrally approved regional spatial strategies and a mass of existing national policy statements and guidance, in the name of a Conservative version of localism as well as less prescriptive ways of working across local authority boundaries (the duty to cooperate, LEPs). The extent to which that system is or is not delivering is analysed well in this month’s interim report of the Raynsford Review of planning in England, but six years on we now take for granted the various oddities of the document, in that it is:

⁃ non-statutory – with no formal prescriptions as to its content or the procedure for its preparation and review – and with an uncertain formal status: in development control matters its principles are very much subsidiary to any relevant policies in an up to date development plan

⁃ determinedly non-spatial, with of course not a whisper of the “regional” word, not a whisper of where in the country growth might be more or less appropriate, or as to differences of approach in London and the core cities as opposed to rural communities- and, as a consequence of that lack of spatial policy making, the lack of any formal sustainability appraisal of policy options given that strategic environmental assessment requirements are not engaged.

⁃ devoid of top-down targets, in relation to housing numbers for example, which are left to percolate up from a myriad of contentious local plan processes, with until now no standardised approach as to any methodology for assessing local housing needs

⁃ not co-ordinated in any way with national economic or infrastructure investment priorities

⁃ immutable in the face of difficulties of interpretation and changed priorities, whilst shadowed by much more detailed planning practice guidance that has been subject to constant tinkering

⁃ despite its best intentions, relatively impenetrable I’m sure to non-planners.

I only practise in England. It is sometimes a shock to look at differing approaches being taken in other parts of the United Kingdom, as well as in Ireland. Whether as part of the NPPF or as a separate document, our unique choice is not to have any form of spatial plan for our country. Odd isn’t it?

Scotland

In Scotland, the National Planning Framework (NPF) is currently reviewed every five years and guides the preparation of Scottish planning policy, by setting out a strategy for Scotland’s spatial development and the priorities for that development. It is prepared pursuant to the Planning etc. (Scotland) Act 2006.

The current Planning (Scotland) Bill would have the effect of incorporating Scottish planning policy into the NPF, which would then only be reviewed every ten years, and thereby putting Scottish planning policy, in addition to the NPF, on a statutory footing. The NPF would become part of each local authority’s development plan

The Scottish Parliament’s Local Government and Communities Committee published its stage 1 report on the Bill on 17 May 2018, broadly supporting the proposals whilst seeking for the Scottish Parliament to be consulted on NPF changes and for the NPF to have a “clear read across to funding arrangements“.

The next version of the NPF, NPF4, is expected in June 2019, once the new arrangements have come into law. NPF3, “Ambition – Opportunity – Place”, was published in 2014. It is entirely different in character to the English NPPF, particularly in its spatial focus, and was the subject of detailed strategic environmental assessment.

Wales

The framework for Welsh land use planning policy comprises Planning Policy Wales (Edition 9, November 2016) supplemented by a series of Technical Advice Notes (TANs) and Minerals Technical Advice Notes (MTANs). There is also the Wales Spatial Plan “People, Places, Futures“, last updated in 2008.

The Welsh Planning Directorate has begun work on the production of a National Development Framework (NDF). The NDF will set out a 20 year land use framework for Wales and will replace the current Wales Spatial Plan.

Northern Ireland

Northern Ireland has its Strategic Planning Policy Statement for Northern Ireland -Planning for Sustainable Development (SPPS) (September 2015), published by its Department of the Environment, alongside its Development Strategy 2035 (March 2012), published by its Department for Regional Development.

The SPPS reflected the new tier-tier system which had been introduced, devolving various planning functions to local authorities whilst retaining for the Department of the Environment responsibility for regional planning policy, the determination of regionally significant and called-in applications, and planning legislation.

However, best laid plans and all that. Following the current dissolution (effectively since January 2017) of the Northern Ireland Assembly, its Departments have no minister in charge of them. As a result of the ruling of the Northern Irish High Court this month in the Colin Buick case, the full ramifications are now plain: absent a minister a Department is not in a position lawfully to exercise the powers specifically given to it.

In Buick, the decision of the Department for Infrastructure to grant planning permission for a major waste disposal incinerator, promoted by the Arc21 consortium of local authorities, was quashed:

“I have also noted the argument made in the papers that the delay in concluding a determination of the Arc21 planning application is impacting upon the implementation of public waste and environmental development at national, European and international level. However, the entire programme for government is on hold whilst the current impasse continues. This is extremely unfortunate. However, I do not consider that the exigencies of the current situation are an adequate justification for the course that has been taken. The commendable motivation and aims I refer to cannot override the proper construction of the statutory regime which this case requires.”

This presents a major constitutional and political dilemma. Until such time as the assembly can resume its work, how are significant decisions, both as to plans and projects, to be progressed in Northern Ireland? The Northern Irish planning system is currently broken, in a way which (for all the doom and gloom of the Raynsford review analysis) the English system is not.

Ireland

Finally, the Irish government has published its strategic planning and development framework, Ireland 2040, which comprises a national planning framework alongside its national development plan 2018 – 2027.

Its framework is very definitely spatial, unlike its 2002 predecessor document. The document refers to “…the situation that had arisen by the end of the 2000’s, when there was enough land zoned for a population of 10 million people in Ireland, but not located where required. We cannot continue with such a lack of focus.”

It directs the relative levels of growth it expects for its regions and its gestation has been far more controversial than has been the English draft revised NPPF, no doubt because it tackles difficult questions. There is a good summary of the document by Roger Milne in The Planner https://www.theplanner.co.uk/news/news-analysis-ireland’s-npf-sets-out-its-stall-on-joined-up-planning-and-development (19 February 2018). It will have a statutory basis once the Planning and Development (Amendment) Bill currently before the Seanad is enacted.

Lastly, it should be noted that there is a Framework for Co-operation – Spatial strategies of Northern Ireland and the Republic of Ireland (24 June 2010).

Back to England, with ad hoc national interventions and initiatives, seemingly little structured coordination as between on the one hand what the planning system can achieve and one the other hand any strategic approach to investment and funding, and reliance on many permutations of local alliances and forms of joint working. I certainly agree with many of the criticisms set out in Nick Raynsford’s interim report (whilst the direction and practicality of the solutions flagged may be open to question).

Let’s see how we get on shall we? Special, but determinedly not spatial.

“Plans that either come to naught or half a page of scribbled lines

Hanging on in quiet desperation is the English way
The time is gone, the song is over
Thought I’d something more to say.” *

Simon Ricketts, 19 May 2018

Personal views, et cetera

*Mason, Walters, Wright, Gilmour

All About That Base

Good planning relies on good baselines. Determining the correct baseline or fallback position is the vital starting point for determining the effects that a development proposal would have, but is not easy – often involving the need for judgment as to what can be done in any event without planning permission or what the position would be in any event in terms of, for instance air quality, highways movements or the effect on the level of daylight and sunlight that existing properties enjoy.

In Wiltshire Waste Alliance Limited v Secretary of State (Sir Ross Cranston, 10 May 2018), an inspector had granted permission on appeal for the extension of a waste recycling plant.

“Before him the company’s case was that if the appeal was dismissed the appeal site would continue to operate pursuant to a series of admittedly complicated planning permissions which, in any event, would allow a significant number of uses. The appeal was advanced on the basis of these “no project” baselines being in existence. No other grounds were advanced for the grant of planning permission. Essentially the claimant’s case against the appeal was that these baseline activities were not in fact permitted under the permissions operating. Further, for practical reasons what was permitted was limited and in any event could not take place.”

In his decision letter the inspector had identified that it was crucial to the proper determination of the appeal that the effects of generated HGV traffic on the highway network and air quality were calculated “on a precautionary basis and compared with any planning fall-back position from which realistic baseline positions are drawn. It is established law that for a fall-back position to be taken into account it must be legally possible with respect to existing permitted land uses and also likely to occur on available evidence.”

The planning permission for the existing facility did not include any condition restricting the amount of waste that could be treated, but the application for it had indicated a figure of up to 25,000 tonnes per annum for one area, whereas the fallback position being relied upon by the operator at the appeal had assumed that this could be increased to 75,000 tonnes without the need for planning permission. It argued that the 25,000 figure was no limitation (applying the I’m Your Man case, recently approved of by the Court of Appeal in Lambeth LBC v Secretary of State). The claimant argued that the inspector had not considered whether such an increase in the quantity of material treated would have amounted to a material change of use by way of intensification. Retired High Court judge Sir Ross Cranston accepted the claimant’s argument, but also determined, as had been conceded by the Secretary of State, that the inspector had also wrongly noted that the application document referring to the 25,000 tonnes figure had not been incorporated by reference into the permission. Sir Ross Cranston’s summary of the arguments and reasoning is brief. (In the light of the Lambeth case I don’t see how incorporation by reference of the application document is relevant.)

As well as meaning that the inspector had made a legal error in the way that he had considered the fallback position, the judge accepted that the approach that had been taken “has the potential to infect the conclusions regarding the baseline scenarios” for the purposes of assessment of likely significant environmental effects in the environmental impact assessment.

It is a cautionary tale – ensure that you can justify any fallback or baseline position that you rely upon.

Whilst it didn’t matter for the purposes of the judgment, I assume that the proposal was assessed under the 2011 EIA Regulations. The 2017 Regulations are more prescriptive. EIA now needs to include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge“.

The more far-reaching and longer-term the effects of a project, the more complex the analysis ends up being, as can be seen from the Secretary of State’s decision dated 10 May 2018 to authorise the development consent order applied for by Transport for London in relation to the proposed Silvertown twin-bore road tunnel under the Thames (a scheme which also was promoted under the previous EIA legislation). The task of analysing what would be the position in terms of issues such as congestion and air quality is complex. There will be much focus on his conclusion on air quality effects in particular, namely that “greater weight needs to be placed on the impact of the Development on the zone [for the Greater Urban London area as a whole] rather than at individual receptors. The Secretary of States therefore places weight on the fact that whilst some receptors will experience a worsening in air quality as a result of the Development, overall the Development should have a beneficial impact on air quality and that the Development is not predicted to delay compliance with the [Air Quality Directive] in the timeframes that the Updated [Air Quality Plan], including the zone plan for the Greater Urban London area, sets out as being the quickest possible time.”

We have seen recently how assumptions as to air quality levels can be proved wrong in ways that are unexpected, such as the VW emissions scandal that threw into question the degree to which air quality levels would improve as newer vehicles replaced older ones on the road, or ways which are possibly less unexpected, such as the Government’s delayed compliance with the Air Quality Directive.

Accurate analysis is of course equally necessary with more routine non-EIA projects: that is, accurate analysis both in the relevant technical assessment, whatever it may be, and accurate analysis by the decision maker in taking it into account in reaching a decision. R (Rainbird) v London Borough of Tower Hamlets (Deputy Judge John Howell QC, 28 March 2018) was a recent example of a planning permission being quashed (that the council had granted to itself for an affordable housing development) because of incorrect conclusions being drawn from a report on sunlight and daylight issues, that in itself was held to be significantly misleading in a number of respects, both in relation to the relevant baseline position and in its analysis of compliance with the relevant BRE guidelines that had been incorporated into the council’s local plan. However, every case inevitably turns on its own facts and, as the judge identified, the threshold for challenge is high:

⁃ Baroness Hale in Morge v Hampshire County Council (Supreme Court, 19 January 2011: “reports obviously have to be clear and full enough to enable [members] to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves”

⁃ Lindblom LJ in Mansell v Tonbridge and Malling Borough Council(Court of Appeal, 8 September 2017): “The question for the court will always be whether, on a fair reading of his report as a whole, the officer has significantly misled the members on a matter bearing upon their decision, and the error goes uncorrected before the decision is made. Minor mistakes may be excused. It is only if the advice is such as to misdirect the members in a serious way—for example, by failing to draw their attention to considerations material to their decision or bringing into account considerations that are immaterial, or misinforming them about relevant facts, or providing them with a false understanding of relevant planning policy—that the court will be able to conclude that their decision was rendered unlawful by the advice they were given.


Where the line is drawn between an officer’s advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact.., or has plainly misdirected the members as to the meaning of a relevant policy… There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law…. But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.”

⁃ Section 31 (2A) of the Senior Courts Act 1981 provides that the High Court “must refuse to grant relief on an application for judicial review…if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” unless it is appropriate to disregard this “for reasons of exceptional public interest.”

Simon Ricketts, 12 May 2018

Personal views, et cetera

We Are The Village Green Preservation Society

“God save Donald Duck, vaudeville and variety

We are the Desperate Dan Appreciation Society

God save strawberry jam and all the different varieties”

(R. Davies)

There have been two important cases in the last month where the courts have considered the circumstances in which land may be registered as a village green. The subject matter sounds quaint but registration has massive consequences for developers and landowners, effectively sterilising permanently the land that is registered, to protect the uses by the relevant neighbourhood that were the basis of the registration application. Of course, there is another side to the coin: registration also provides a backstop for neighbourhoods to ensue that there is legal protection for rights that have arisen, by way of customary use rather than in a documented way, over time. Given other protections for communities by way of the planning process and the Localism Act 2011’s asset of community value process (albeit much weaker in effect) – and the many years that communities have now had to stake their claims – is there really still a place for this sledgehammer of a concept? Or is the need as great as ever? I am sure you will make your views known in reactions to this post.

The potential scope of such applications can be wide, for instance the application (my idea, I confess) to register as a village green the undercroft area used by skateboarders beneath the Queen Elizabeth Hall on London’s south bank (an application which, together with litigation as to its validity, was withdrawn in the light of agreement that was subsequently reached as to the future use of the area), or the application to register six hectares of a beach in Newhaven (of which more later).

Before dealing with the cases, I need to set out some basic legal context.

Section 15 of the Commons Act provides that any person may apply to the relevant commons registration authority to register land as a town or village green “if a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years“. If the use has now ceased, the application must be made within one year of cessation if the land is in England and within two years if the land is within Wales. For the purposes of calculating the 20 years “any period during which access to the land was prohibited to members of the public by reason of any enactment” is to be disregarded.

In an attempt by Parliament to prevent the use of village green applications to seek to thwart or at least delay development proposals, the Growth and Infrastructure Act 2013 included a series of trigger events. If a trigger event has occurred, an application cannot be made. They include the making of a planning application in relation to the land and publication of the “draft of a development plan document which identifies the land for potential development“. For each trigger event there is a corresponding terminating event, for instance, in relation to that first one, withdrawal of the application, its refusal without a successful appeal, or the revocation, quashing or expiry of the resulting permission.

Whilst the 2006 Act refers to “town or village green” there is no legal distinction, which is why for ease, and to get down with the Kinks, I just refer to the latter.

There has been much litigation as to the precise meaning of many of the words and phrases within section 15, including: “significant number of the inhabitants“, “locality, or of any neighbourhood within a locality“, “as of right“, “lawful sports and pastimes” and “any period during which access to the land was prohibited to members of the public by reason of any enactment“. The Supreme Court, in R (Newhaven Port and Properties Limited) v East Sussex County Council (Supreme Court, 25 February 2015), has also held that, whilst land in public as well as private ownership can be registered as a village green, section 15 cannot be interpreted so as to enable registration if registration would be incompatible with any other statutory function to which the land was to be put (in legal shorthand, the “statutory incompatibility” test).

Contested applications are usually determined following an inquiry held by an examiner (often a barrister) appointed by the relevant commons registration authority (usually the relevant county council, unitary authority or London borough). The examiner makes recommendations to the authority which it may or may not accept. In some “pilot” areas, applications can be determined by inspectors. Challenges on points of law fall to be determined by the High Court.

So now to the latest two cases.

R (Lancashire County Council) v Secretary of State (12 April 2018) followed a hearing by the Court of Appeal of two separate cases which were conjoined on appeal:

⁃ in the first one, Lancashire County Council, as education authority, faced applications for registration as a village green of five areas of land it owns next to one of its primary schools. The inspector appointed to determine the application concluded (after a hearing lasting eight days) that four of the five areas should be added to the register. The County Council challenged the registration by way of judicial review, lost in front of Ouseley J and appealed.

⁃ in the second one, NHS Property Services Limited faced an application for registration as a village green of land it owns next to Leatherhead Hospital. The NHS persuaded the inspector (after a five day inquiry) to recommend to Surrey County Council that the application be refused on the ground of “statutory incompatibility“, amongst others. The county council had rejected the recommendation and registered the land. The NHS succeeded before Gilbart J in quashing the registration on the basis that the council had failed to consider properly the question of “statutory incompatibility”. The county council appealed.

The two cases gave rise to a number of overlapping legal issues, including the extent of application of the “statutory incompatibility” test. After all, Lancashire County Council holds its relevant land for educational purposes and the NHS (or rather, at the time of the application, the relevant primary care trust) held its land for the provision of primary medical services. Were these statutory purposes sufficiently specific to trump the registration of the land as a village green?

The Court of Appeal reviewed the principles set out by the Newhaven case by the Supreme Court, where the court had found that there was an incompatibility between the use of the harbour company’s statutory functions in relation to the harbour and registration of the beach as a village green. The Court of Appeal distinguished this from the Lancashire position:

“41. The statutory powers and duties relied upon here were general in their character and content, comprising a local education authority’s functions in securing educational provision in its area. There was no statutory obligation to maintain or use the land in question in a particular way, or to carry out any particular activities upon it. The basis of the asserted incompatibility between section 15 of the 2006 Act and the provisions of the Education Acts on which the county council sought to rely could only be that the carrying out of its general obligations to provide schools in its area – its compliance with a “target duty” – might be or become more difficult or less convenient, not that it would be prevented from carrying out any particular statutory function relating specifically to the land whose registration as a town or village green had been applied for. There was no statutory duty to provide a school on the land, or to carry out any particular educational activity on it. There were no proposals to develop it for a new school. The fact that the county council, as owner of the land, had statutory powers to develop it was not sufficient to create a “statutory incompatibility” (see paragraph 101 of the judgment of Lord Neuberger and Lord Hodge in Newhaven Port and Properties). Nor was the fact of its having been acquired and held for such purposes – if, indeed, it was. The relevant statutory purposes were capable of fulfilment through the county council’s ownership, development and management of its property assets as a local education authority without recourse to the land in question – notwithstanding that, on its own contention, it had owned that land for “educational purposes” for many years. The registration of the land as a town or village green would not be at odds with those statutory purposes.”

The Court of Appeal reached the same conclusion in relation to the NHS appeal:

“45. The statutory functions on which NHS Property Services relied, and the statutory purposes underlying them, were also general in character and content: the general functions of a clinical commissioning group to provide medical services to the public, and, under section 3(1) of the National Health Service Act 2006, the duty to arrange for the provision of hospital accommodation, as well as various other healthcare services and facilities. The registration of the land as a green under section 15 of the 2006 Act would not, in itself, have any material effect on NHS Property Services’ function under section 223(1) of the National Health Service Act 2006, to hold land for the NHS Surrey Downs Clinical Commissioning Group. Nor would it prevent the performance by the clinical commissioning group, or any other NHS body, of any of statutory function relating specifically to the land in question. Beyond their general application to land and property held by NHS Property Services, none of those statutory functions could be said to attach in some specific way to this particular land. Parliament had not conferred on NHS Property Services or on the clinical commissioning group, any specific power, or imposed any specific duty, in respect of the land whose registration was sought. There was, for example, no statutory duty to provide a hospital or any other healthcare service or facility on the land.

46. As in the Lancaster case, therefore, the circumstances did not correspond to those of Newhaven Port and Properties. The land was not being used for any “defined statutory purposes” with which registration would be incompatible. No statutory purpose relating specifically to this particular land would be frustrated. The ownership of the land by NHS Property Services, and the existence of statutory powers that could be used for the purposes of developing the land in the future, was not enough to create a “statutory incompatibility”. The clinical commissioning group would still be able to carry out its statutory functions in the provision of hospital and other accommodation and the various services and facilities within the scope of its statutory responsibilities if the public had the right to use the land at Leach Grove Wood for recreational purposes, even if the land itself could not then be put to use for the purposes of any of the relevant statutory functions. None of those general statutory functions were required to be performed on this land. And again, it is possible to go somewhat further than that. Although the registration of the land as a village green would preclude its being developed by the construction of a hospital or an extension to the existing hospital, or as a clinic or administrative building, or as a car park, and even though the relevant legislation did not include a power or duty to provide facilities for recreation, there would be nothing inconsistent – either in principle or in practice – between the land being registered as a green and its being kept open and undeveloped and maintained as part of the Leatherhead Hospital site, whether or not with access to it by staff, patients or visitors. This would not prevent or interfere with the performance of any of the relevant statutory functions. But in any event, as in the Lancaster case, the two statutory regimes were not inherently in conflict with each other. There was no “statutory incompatibility“.

So we take it from this that to trump village green registration the statutory functions for which land is held must pretty specific, and the carrying out of them must be inherently inconsistent with the use of the land for the purposes for which village green registration is sought.

In the Lancashire case, the county council also argued, unsuccessfully, that the relevant local ward could not comprise the “locality” because it had been subject to boundary changes over the 20 years, as well, also unsuccessfully, that there should be a sufficient geographical spread of users across the locality.

Result: sterilisation of land that could one day have been used to extend a primary school and/or provide additional medical facilities respectively.

R (Cotham School) v Bristol City Council (Sir Wyn Williams, 3 May 2018) concerned an application for registration as a village green of 22 acres of land owned by Bristol City Council (which is also the relevant commons registration authority).

Large parts of the land are laid out as playing fields. “There have been football and rugby pitches on the land in the winter and a cricket field and an athletics track in the summer for many years. Until about 2000 these pitches were used as school playing fields for Fairfield School; thereafter Cotham School became the user of the pitches. Over many years the pitches were also used by local sports clubs under arrangements made with the schools and/or the local education authority.” The land is extensively used for dog walking and informal recreation.

The inspector considering the registration application recommended, after an inquiry lasting nine days, that the application be rejected because the user had not been “as of right“, in view of signs warning people not to trespass on the playing fields and that the land was private. However, following lobbying by the applicant and others, the council disagreed and resolved that the land be registered, considering that the signs were not sufficiently clear. The school challenged the decision.

The court’s judgment usefully contains a detailed review of case law as to the meaning of “as of right“. The court concluded that the inspector was correct “when he concluded that the use of land by local inhabitants would be made contentious by the erection of sufficient and suitably placed signs which were visible to users of the land and which had been seen by a significant number of persons using the land.” The council committee had no basis for coming to a different conclusion without a proper analysis of the facts, which they had not carried out as part of their decision making. Nor was the council committee’s reasoning adequate.

Amongst the other grounds of challenge was an assertion that there were in any event periods when local inhabitants were excluded from the land, when organised sports were being played as well as during formal sports days. The inspector did not agree that this in itself would have prevented registration and considered that the use by local residents and the sporting uses co-existed, following the approach of the Supreme Court in R (on the application of Lewis) v Redcar and Cleveland BC (No 2) (3 March 2010) (a case about a golf club).

Finally, the question of “statutory incompatibility” was considered, but in the light of the recent ruling of the Court of Appeal in the other case considered in this post, the court determined that the inspector was correct when he “concluded that the duties and functions of the landowner (as education authority in respect of educational provision) can be carried out – albeit with difficulty (including financial difficulty) in some instances – even if registration takes place.” A specific issue as to whether registration would be incompatible with a restriction in the Academies Act 2010 as to the disposal of land was side-stepped on the basis that registration was not considered by the court to amount to a disposal for the purposes of the Act.

So the court found that the council’s decision to register the land was unlawful. It has now called for submissions by the parties as to what should be the relief, ie whether the decision to register should be quashed, but flagged that it will be “a very difficult task” to persuade the court that there should be no relief.

As a post script I would note that another issue frequently arising in applications for village green registration is whether registration can succeed in relation to land which is public highway. Whilst there is no specific statutory restriction and no specific judicial precedent, in any event, the lawful sports or pastimes relied upon would need to be such as would not be inconsistent with use of the highway by right. For example in a report to Cheshire East Council dated 25 July 2017 in relation to land in Somerford, an inspector (barrister Timothy Jones), after a detailed review of the case law, concluded that the activities relied upon by the applicant in that case, “equine, informal games, overnight camping, dog walking and training, jogging, collecting wild fruit, conkers and fungi, observing nature and stargazing” were all ones that could lawfully be carried out on a public highway in any event:

“None of the activities are of a sort that are unexpected on a highway verge, a nuisance, an impediment to normal use of the highway or otherwise unreasonable. It would be regrettable if highway authorities had to stop such activities in order to prevent verges becoming a village green.”

So, what does the future hold for village green applications? The trigger events introduced by the 2013 Act have certainly constrained their use in relation to land where development is contemplated, although I am sure that we will see litigation as to, for instance, how specific a development plan policy needs to be in order to identify land for potential development. But applications will continue to be made, particularly where access to land by the public has not been properly controlled, or allowed on a properly documented basis – and recent cases have shown that underused public sector land (precisely those categories of land which the Government is keen to see developed for housing and other uses) is particularly vulnerable.

Do we have the balance right? Are the activities by local inhabitants that are often relied upon really those which were intended to be protected? The 2006 Act is the most recent statutory expression of a legal framework which has its basis in customary rights over open spaces in towns and villages that historically were used for communal activities. Has there been an element of “mission creep“, and a lack of political attention, when we look at the list of activities relied upon in the Somerford case (not uncommon for these applications), or consider the impact on publicly owned land affected by the Lancashire and Leatherhead applications that were the subject of the Court of Appeal’s ruling last month?

That Kinks song continues, aptly:

“Preserving the old ways from being abused

Protecting the new ways, for me and for you

What more can we do?”

Simon Ricketts, 5 May 2018

Personal views, et cetera

Photo courtesy of the Bristol Post