Development and Regulation Committee
Committee Room 1, Friday, 28 10:30 County Hall, November 2014 Chelmsford, Essex
Quorum: 3
Membership:
Councillor R Boyce Chairman Councillor J Abbott Councillor J Aldridge Councillor K Bobbin Councillor P Channer Councillor M Ellis Councillor C Guglielmi Councillor J Lodge Councillor M Mackrory Councillor Lady P Newton Councillor J Reeves Councillor S Walsh
For information about the meeting please ask for: Matthew Waldie, Committee Officer Telephone: 033301 34583 Email: [email protected]
Page 1 of 92 Essex County Council and Committees Information
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Page 2 of 92 Part 1 (During consideration of these items the meeting is likely to be open to the press and public)
Pages
1 Apologies and Substitution Notices The Committee Officer to report receipt (if any)
2 Declarations of Interest To note any declarations of interest to be made by Members
3 Minutes 7 - 16 To approve the minutes of the meeting held on 24 October 2014.
4 Identification of Items Involving Public Speaking To note where members of the public are speaking on an agenda item. These items may be brought forward on the agenda.
5 Minerals and Waste
5a Marsh Farm, Basildon 17 - 38 To consider Report DR/46/14, relating to the construction and use of an anaerobic digestion facility at Marsh Farm, Vange by-pass, Basildon, Essex.
Reference: ESS/13/14/BAS
5b Brook Street, Chelmsford 39 - 48 To update Members on the appeal decision relating to the erection and use of a concrete batching plant and ancilliary water and aggregate recovery and recycling facilities at a former goods yard off Brook Street, Chelmsford CM11SU. DR/47/14
Reference: ESS/32/13/CHL Planning Inspectorate Reference: APP/Z1585/A/14/2217629
6 Village Green
Page 3 of 92 6a Mill Lane Green, Walton on the Naze 49 - 88 To update Members on the High Court judgement relating to a refusal to grant an application to register land at Walton on the Naze as a town or village green. DR/48/14
7 Information Item
7a Applications, Enforcement and Appeals Statistics 89 - 92 To update Members with relevant information on planning applications, appeals and enforcements, as at the end of the previous month, plus other background information as may be requested by Committee. DR/49/14
8 Date of Next Meeting To note that the next meeting will be held on Friday 19 December 2014 at 10.30am.
9 Urgent Business To consider any matter which in the opinion of the Chairman should be considered in public by reason of special circumstances (to be specified) as a matter of urgency.
Exempt Items (During consideration of these items the meeting is not likely to be open to the press and public)
To consider whether the press and public should be excluded from the meeting during consideration of an agenda item on the grounds that it involves the likely disclosure of exempt information as specified in Part I of Schedule 12A of the Local Government Act 1972 or it being confidential for the purposes of Section 100A(2) of that Act.
In each case, Members are asked to decide whether, in all the circumstances, the public interest in maintaining the exemption (and discussing the matter in private) outweighs the public interest in disclosing the information.
10 Urgent Exempt Business To consider in private any other matter which in the opinion of the Chairman should be considered by reason of special circumstances (to be specified) as a matter of urgency.
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All letters of representation referred to in the reports attached to this agenda are available for inspection. Anyone wishing to see these documents should contact the Officer identified on the front page of the report prior to the date of the meeting.
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Page 6 of 92 24 October 2014 Unapproved 1 Minutes
MINUTES OF A MEETING OF THE DEVELOPMENT AND REGULATION COMMITTEE HELD AT COUNTY HALL, CHELMSFORD ON 24 OCTOBER 2014
Present
Cllr R Boyce (Chairman) Cllr C Guglielmi Cllr J Aldridge Cllr T Higgins Cllr K Bobbin Cllr J Lodge Cllr M Ellis Cllr C Seagers Cllr I Grundy Cllr S Walsh
1. Apologies and Substitution Notices
Apologies were received from Cllr J Abbott, Cllr P Channer, Cllr M Mackrory (substituted by Cllr Higgins), Cllr Lady P Newton (substituted by Cllr Grundy) and Cllr J Reeves (substituted by Cllr Seagers).
2. Declarations of Interest
Cllr Aldridge declared a personal interest as a member of the Minerals and Waste Members Panel.
3. Minutes
The Minutes and Addendum of the Committee held on 26 September 2014 were agreed and signed by the Chairman.
4. Identification of Items Involving Public Speaking
Persons identified to speak in accordance with the procedure were identified for the following items:
1) Extension of time of 2 years to the period for commencement of development of planning permission granted by the Secretary of State, allowing the date of commencement to be extended from 2 March 2015 to 2 March 2017, in respect of an “Integrated Waste Management Facility”. Location: Rivenhall Airfield, Coggeshall Road (A120), Braintree Ref: ESS/41/14/BTE Applicant: Gent Fairhead & Co Ltd Public Speakers: Alan Stones speaking against David Whipps speaking for.
2) Erection of a two storey extension to provide three classrooms and ancillary space; cycle/scooter parking; and amendments to the levels of the south- western playground Location: Staples Road Primary School, Staples Road, Loughton, Essex, IG10 1HR Ref: CC/EPF/42/14
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Applicant: Essex County Council Public Speaker: Veronica Wallace speaking for And, speaking as local Member, Cllr C Pond.
Councillor Guglielmi joined the meeting at this point. ______
5. Rivenhall Airfield, Braintree
The Committee considered report DR/42/14 by the Director for Operations, Environment and Economy.
The Members of the Committee noted the contents of the Addendum attached to these minutes.
The Committee was reminded that the application sought an extension to the period of commencement of development of existing planning permission for an Integrated Waste Management Facility.
Policies relevant to the application were detailed in the report.
Details of consultation and representations received were set out in the report.
The Committee noted the key issues that were: Justification for additional time to implement the planning permission Need for IWMF Environmental impact and impact on local amenity Highways Length of extension of time to commence development.
In accordance with the protocol on public speaking the Committee was addressed by Alan Stones, a local resident speaking on behalf of local residents and groups. Mr Stones made several points: I am Chair of the Community Group that put the case against the proposal to the public inquiry in 2010. The Group represents all the local amenity societies plus the Ramblers Association and the Stop the Incinerator Campaign So many factors have changed since the planning approval five years ago – eg greater levels of recycling and number of anaerobic digesters –that the economic viability of the different elements of the proposal must have changed. One particular concern is that waste paper will come into Rivenhall from a much greater area; this has implications regarding road access The ongoing uncertainty about the flue stack height remains a concern. This needs to be resolved before consent is renewed. Any increase in
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height may require separate planning permission, but if it is required for the site to operate, then it will be too late The proposal should be subject to a thoroughgoing reappraisal of the technicalities and viability of the project. Agreeing any renewal of permission without such a reappraisal would be premature.
David Whipps, speaking on behalf of the Applicant, then addressed the meeting. Mr Whipps raised several points: The application only seeks to allow commencement beyond March 2015 (variation of condition 1 of original permission); there are no proposed changes to any other conditions The need for an extension is mainly due to slippage caused by the recession, but not only has the Applicant been taking steps ultimately to implement the Planning Permission but the Applicant remains committed to the scheme, the necessary funding being largely committed Central Government has advised that a positive approach should be taken towards applications such as this – ie ones that improve the prospect of sustainable development being taken forward quickly As this is an application for an extension, it has already been judged acceptable (both by the Secretary of State, and the Committee previously); so it is appropriate to consider changes in Development Plan policies or other material considerations. This is the approach taken and it has revealed nothing to suggest this development is wrong in principle The latest Capacity Gap Report identifies this as an important element in the waste management infrastructure in Essex.
In response to questions raised by Members, it was noted: The Environment Agency will ultimately determine the height of the chimney stack; but it will only be able to determine this once it knows precisely the equipment being used. A separate planning application would be needed if a taller chimney were required. Some 20 metres of the chimney will be sunk below ground Neither the Highways Agency nor Highway Authority has an objection. The access road from the A120 crosses Church Road and Ash Lane; both of these junctions would undergo improvements The ground would not be disturbed around Woodhouse Farm. The area that would suffer disturbance would be subject to an archaeological survey beforehand There would be a diversity of technologies being used at the site. Any significant changes to these in the future would require further planning permission.
The resolution was proposed and seconded and, following a unanimous vote in favour, it was
Resolved
That planning permission be granted subject:
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1) The conditions as imposed by the Secretary of State with respect to Ref. APP/Z1585/V/09/2104804 (ECC ref ESS/37/08/BTE), subject to the following changes
a) Amendment of condition 1 to allow implementation within 1 year of the 2 March 2015
b) Incorporation of the amendments to condition 2 approved under the non material amendment ref ESS/37/08/BTE/NMA2)
c) Addition of a condition with respect to the requirement of historic recording of Woodhouse Farm and buildings prior to any works to these buildings and updating and amending conditions with respect to ecology.
2) A deed of variation to ensure the new planning permission remains subject of the obligations of the original s106 associated with Ref. APP/Z1585/V/09/2104804 (ECC ref ESS/37/08/BTE).
6. Staples Road Primary School, Loughton
The Committee considered report DR/43/14 by the Director of Operations: Environment and Economy.
The Members of the Committee noted the contents of the Addendum attached to these minutes.
The Committee was reminded that the proposed extension would help to accommodate the growing number of children local to the school.
Policies relevant to the application were detailed in the report.
Details of consultation and representations received were set out in the report.
The Committee noted the key issues that were: Need and Principle of this Location Design, Layout and Impacts on the Historic Environment Highway Impacts Impact on Play Space Surface Water and Drainage Impacts Residential Impacts Landscaping, Trees & Ecology
In accordance with the protocol on public speaking the Committee was addressed by Veronica Wallace, Head Teacher at the School. Ms Wallace raised several points: The School is heavily oversubscribed. In 2013 it was unable to admit 32
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children living within the Priority Admissions Area into reception. Some of these were offered a school in Waltham Abbey, which would mean 4-year- olds travelling in taxis to school – which is unacceptable. In response to this situation, the School agreed to take an additional 15 children as a one-off; but it cannot do this again. Having an extra half-form entry, and therefore mixed year classes, has a detrimental impact on the quality of education being provided, particularly as the new curriculum is firmly based on year groups The actual area being developed has a sharp incline, so is not currently well used; but the addition of this new accommodation will permit the removal of a temporary classbase and therefore will free up prime playground space Vehicular access to the school has been reducing over the years, but there still remain several children from out of catchment, who were admitted several years ago, when the school was undersubscribed. This is not the case now, so as these children pass through the school, the number of cars coming in site will reduce further The new accommodation has been designed to respect and enhance the existing buildings.
Cllr Chris Pond, local Member for Loughton Central, then addressed the meeting. Having declared a personal interest, as a local resident, living 250 yards from the School, Cllr Pond made several points: He is in favour of expanding Loughton schools, in response to increasing migration and birth rates, and he has contributed to the process of getting the school to take on extra pupils The school is not easily accessible by car; the school encourages cycling and walking, and is seeing a reduction in pupils arriving by car The proposed extension is appropriate in its massing, size and placing on the site. However, the proposed fenestration is a concern, with large, plate-glass, unrelieved panes that are alien to the street scene and local environment and detrimental to the conservation area. (He has an interest in architecture and design, having, inter alia, written a book on the buildings of Loughton, lectured on the school’s architect, James Cubitt, and contributed to In Context, the professional journal of the Institute of Historic Buildings Management) Where changes have been made to existing local buildings, due to the Article 4 direction, the local authority has insisted on divided panes within the conservation area. This would not be an onerous condition and would improve the conservation area considerably The Member requested that a condition be applied to any planning permission to require revised plans be submitted for approval by the local authority and relevant consultees.
A number of Members endorsed Cllr Pond’s suggestion that the fenestration should be revised, with a view to putting it in line with the requirements normally imposed in this area.
In response to questions raised by Members, it was noted:
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The requirement for an updated School Travel Plan by condition would not normally be appropriate; a planning informative would normally be imposed on a permission. An informative requires to update the travel plan in liaison with the Highway Authority and implement the findings before beneficial occupation of the extension The reference made to a goods vehicle loading bay refers to a scheme being considered by the North-East Essex Parking Partnership. It is not dependent on this application, nor impacts upon it. However, if the North- East Parking Partnership does proceed to consultation on this bay, it is possible that the school’s situation might be considered a factor on that There are no opportunities for the provision of local temporary parking, given the location is both residential in nature and abutting the protected green area of Epping Forest The addition of an extra 90 pupils will mean an additional 6 teaching staff The local travel plan anticipates that, in the short term, an additional 20 car journeys will be taken. However, travel by car will reduce in time, and the number of children traveling to school is expected to drop from 183 currently to 177 within the next three years.
It was proposed that planning permission be granted, subject to including an additional condition requiring details of the fenestration to be submitted to and approved in writing by the planning authority prior to commencement of building and thereafter implemented. The local member would be consulted as part of the approval process.
The resolution, as amended, was proposed and seconded. Following a vote of nine in favour and none against, with Cllr Seagers abstaining, it was
Resolved
That pursuant to Regulation 3 of the Town and Country Planning General Regulations 1992, planning permission be granted subject to the following conditions:
1. The development hereby permitted shall be begun before the expiry of 5 years from the date of this permission.
2. The development hereby permitted shall be carried out in accordance with the details submitted by way of the application (dated 25 June 2014), together with the planning statement dated June 2014, the Design & Access Statement (dated June 2014), the statement of community involvement (dated June 2014), the heritage statement (dated June 2014), the Staples Primary School travel plan – by Richard Jackson ref: 45654 (dated June 2014), the Transport Statement - by Richard Jackson ref 45654 (dated June 2014), the tree survey and arboricultural impact assessment report (dated May 2014), Ecological Assessment including a screening opinion with respect to the habitat regulations assessment process (dated May 2014), the biodiversity checklist dated 20 June 2014, Additional justification for the expansion of Staples Road Pimary School Page 12 of 92 24 October 2014 Unapproved 7 Minutes
dated 22 September 2014, Addendum to the Design & access statement and Heritage Statement dated September 2014 and drawing numbers:
45654/C/001 (rev B) ‘Proposed Drainage Layout’ dated 19 June 2014; 7533/A001 (rev PL) ‘Location Plan’ dated May 2014: 7533/A005 (rev PL) ‘Existing Site Plan’ dated June 2014; 7533/A035 (rev PL) ‘Proposed Site Plan’ dated May 2014; 7533/A036 (rev A) Proposed Detail Site Plan dated 4 July 2014 7533/A006 (rev PL) ‘Existing Detail Site Plan’ dated June 2014; 7533/A020 (rev PL) ‘Existing Elevations’ dated May 2014; 7533/A050 (rev B) ‘Proposed Elevations dated 19 Sept 2014 7533/A015 (rev PL) ‘Existing Site Elevations photo montage’ dated June 2014; 7533/A012 (rev PL) ‘Existing Roof Plan’ dated June 2014; 7533/A042 (rev PL) ‘Proposed Roof Plan’ dated 24 June 2014; 7533/A011 (rev PL) ‘Existing Upper ground Floor Plan’ dated June 2014; 7533/A041 (rev PL) ‘Proposed Upper ground Floor Plan’ dated May 2014; 7533/A010 (rev PL) ‘Existing lower ground Floor Plan’ dated June 2014; 7533/A040 (rev PL) ‘Proposed lower ground Floor Plan’ dated May 2014; 7533/A055 (rev PL) ‘Proposed Sections’ dated May 2014; 7533/A046 (rev PL) ‘Playground Works Cross Sections’ dated June 2014;
Together with the information contained in the following emails: Vincent & Gorbing, entitled ‘RE: Staples Road- Extension Validation – Addendum’ dated 04 July 2014 Vincent & Gorbing, entitled ‘RE: Staples Road- Extension Validation – Addendum’(including plan numbers A036 (Rev A) ‘Proposed detail Site Plan’ dated May 2014 and A050 (Rev A) ‘Proposed elevations’ dated May 2014) dated 11 July 2014; Vincent & Gorbing, entitled ‘RE: Staples Road demolition application CC/EPF/36/14 and extension application CC/EPF/42/14’ (including documents ‘Exterior lighting ref PA662692 (dated 21 August 2014) and letter from Thames Water (dated 26 August 2014)) dated 27 August 2014.
Except as varied by the following conditions:
3. No development shall take place beyond the installation of a damp proof membrane until details of the materials to be used for the external appearance of the building have been submitted to and approved in writing by the County Planning Authority. Without prejudice to the foregoing, the details shall include details of the brick tiles and large-scale drawings to show an elevation of the diaper pattern to be formed from the brick tiles indicating which colours will be used in the pattern and detailed drawings of no more than 1:20 scale of the eves and windows. . The development shall be implemented in accordance with the approved details.
4. No development shall take place until fenestration details have been submitted to and approved in writing by the County Planning Authority.
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The submitted details shall include scaled drawings by section and elevation at scales between (1:20 and 1:1) as appropriate. The development shall be implemented in accordance with the approved details.
5. The development hereby permitted shall not be constructed unless during the following times:
07:00 to 18:30 hours Monday to Friday 07:00 to 13:00 hours Saturdays
and at no other times, including on Sundays, Bank or Public Holidays.
In addition, no construction traffic will be permitted to access the site between the hours of:
08:15 to 09:15 and 14:45 to 15:45 hours Monday to Friday
and at no other times, including on Sundays, Bank or Public Holidays.
6. No development shall take place until a construction management plan and appropriate plans have been submitted to and approved in writing by the County Planning Authority. The construction management plan shall include the following: a) Identifying the access to be used for the construction vehicles b) Alternative emergency access arrangements for the duration of the construction period c) The location of the contractors plant site, and measures to be incorporated to segregate it from the main school buildings and pupils. d) Location of parking for contractor’s staff and vehicles e) Management measures to minimise impact of construction material deliveries
The development shall thereafter be constructed in accordance with the approved construction management plan.
7. No fixed lighting shall be erected or installed until details of the location, height, tilt, lighting controls, lighting design, illuminance levels, uniformities and spill light contour lines on to Ordnance Survey mapping has been submitted to and approved in writing by the County Planning Authority. The details shall include a design summary to ensure the lighting is designed to an appropriate lighting standard to allow children and adults safe passage around the school when there is poor visibility but would minimise the potential nuisance of light spillage on the local environment, adjoining properties and highways. The lighting shall thereafter be erected, installed and operated in accordance with the approved details.
8. No development shall take place until a detailed scheme to accommodate
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intercept and re-direct, all surface water on the southern and western hard play area, arising from the development hereby permitted has been submitted to and approved in writing by the County Planning Authority. The development shall be implemented in accordance with the approved scheme and maintained for the development hereby permitted.
9. No development shall take place until the details of the biodiversity mitigation / enhancement measures outlined within the application as detailed in the approved “(Draft) Ecological Assessment including a screening opinion with respect to the habitat regulations assessment process” (section 3.3), by Sue Deakin dated May 2014 have been submitted to and approved in writing by the County Planning Authority.
The development shall be implemented in accordance with the approved details.
10. No removal of hedgerows, trees or shrubs shall take place between 1st March and 31st August inclusive, unless a competent ecologist has undertaken an ecological assessment to confirm that no birds would be harmed and/or appropriate measures are in place to protect nesting bird interest on site. Any such written confirmation or ecological assessment shall be submitted to the County Planning Authority for approval prior to any removal of hedgerows, trees or shrubs during this period.
11. No development shall take place until the details of the tree protection measures outlined within the application as detailed in the approved (Draft) Tree survey and arboricultural impact assessment report (section 3.4) by Sue Deakin dated May 2014 have been submitted to and approved in writing by the County Planning Authority.
The development shall thereafter be implemented in accordance with the approved details.
Informative
Prior to the beneficial occupation of the development it is advised that an updated School Travel Plan including monitoring arrangements is prepared, in liaison with the Highway Authority, and subsequently implemented in full.
7. Holy Cross School, Harlow
The Committee considered report DR/44/14 by the Director for Operations, Environment and Economy.
The Committee noted that the permission at Holy Cross School had been implemented, but not strictly in accordance with the approved plans.
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The details having been noted and following a unanimous vote in favour, it was
Resolved:
Subject to the fencing, planting and surfaces affected by the work being reinstated on completion of the school development (ref CC/HLW/19/14), no further action is taken to address this minor breach of planning control.
8. Statistics The Committee considered report DR/45/14, Applications, Enforcement and Appeals Statistics, as at end of the previous month, by the Director for Operations, Environment and Economy. The Committee NOTED the report.
9 Date and time of Next Meeting
The Committee noted that the next meeting will be held on Friday 28 November 2014 at 10.30am in Committee Room 1.
The Chairman also informed Members that, as the December meeting was currently scheduled to be held only two weeks after the November meeting, he wished to move the December meeting back a week, to Friday 19 December, subject to room availability. This was to be confirmed after the meeting. [The meeting date was subsequently confirmed as Friday 19 December.]
There being no further business the meeting closed at 11.56 am.
Chairman
Page 16 of 92 AGENDA ITEM 5a
DR/46/14
committee DEVELOPMENT & REGULATION date 28 November 2014
MINERALS AND WASTE DEVELOPMENT Proposal: Construction and use of an Anaerobic Digestion Facility Location: Marsh Farm, Vange by-pass, Basildon, Essex Ref: ESS/13/14/BAS Applicant: Mr Alex Sell
Report by Director of Operations, Environment and Economy Enquiries to: Adam O’Connor Tel: 03330131207 The full application can be viewed at www.essex.gov.uk/viewplanning
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1. SITE
The application site is located to the south of the main urban area of Basildon, south of Vange within an established agricultural holding. Marsh Farm is located just off the A13 Southend to London Road. Access is only available for traffic travelling in a westerly direction. There is a deceleration lane leading to the access. The access road crosses a railway line via a level crossing.
The proposal site measures approximately 0.75 hectares and presently consists of a hard standing area which has been used as a storage area for green waste and grazing land. The proposal site adjoins the existing farm buildings at Marsh Farm. There are 2 residential properties to the north west of the site, which are approximately 150m from the proposed development and which are considered to be the closest dwellings to the proposal site. Beyond this, the nearest properties are located within the village of Vange to the north of the A13. To the east, south and north of the site is agricultural land including the Vange Marshes.
The site is within the Metropolitan Green Belt.
2. PROPOSAL
The application seeks planning permission for the construction and operation of an anaerobic digestion (AD) facility on an existing farm and industrial complex at Marsh Farm, Vange, Basildon.
The proposal facility would comprise of two digester units, two digestate storage units, feedstock feeder, silage clamps, an access track and associated equipment including a combined heat and power (CHP) generator and control room.
The biogas digesters would have an internal diameter of 21m, an external diameter of 21.7m, a height of 6m to the wall and 12.79m to the peak of the dome. The digestate storage tanks would have an internal diameter of 26m and an external diameter of 26.7m. The height of the storage tank walls would be 6m and the peak of the gas collection roof would be 15.40m.
Each clamp would be 70m in length and 30m in width. The combined area of the two clamps would be 4,200m².
The proposal would require the input of maize, grass, farmyard manure and other feedstock’s for digestion, which would be sourced from the farm itself and the local area.
Approximately half of the crop would be produced on land from land within the farm holding on the south side of the A13. . The remaining tonnage would be brought in from local farms where land would be rented to grow the crop. The main feedstock maize and grass silage would be grown locally and stored in clamps on the site. The plant would require a combination of approximately 6,250 tonnes of maize, 2,000 tonnes of grass silage and 2,500 tonnes of farmyard manure (FYM) and
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1,000 tonnes of chicken manure or equivalent feedstock combination per annum. The chicken manure has been imported and used on the farm as a fertiliser for more than 5 years. Therefore the proposed facility would have a maximum annual throughput of approximately 12,000 tonnes.
The digestion process would produce biogas which would produce electricity when combusted in a CHP unit. The electricity produced would be exported to the National Grid. The plant will produce approximately 4 million kWh of electricity per annum. As a result of this exportation of electricity a small transformer is also proposed on site.
In addition to the production of biogas for electricity the process would also produce a digestate which would be used as a fertiliser on the applicant’s farmed area and neighbouring farms.
On a daily basis, the plant would need one visit per day by an employee who would start the digestion process by filling the receptor cell with the necessary feedstock with the resultant AD process taking 24 hours. This operation would usually take place in the morning between 7:30am and 8.30am. As well as this, there would be the requirement for some basic maintenance and checks each day to ensure efficient and safe operation of the proposed development.
Traffic movements would involve transporting maize, grass silage and chicken manure to the farm most of which would be transported from farmland on the southern side of the A13 minimising the need to cross the nearby railway line to the north.
Maize: Maize harvest and ensiling would generally take between two to four weeks during the harvesting period of September and October. Of the 6,250 tonnes of maize, approximately half of the maize would be produced on land on the same side of the A13 as the farm. The remaining tonnage of maize would be grown on rented local farms and would require transportation to the site via the A13.
The transportation of all maize would involve the use of three tractors and trailers. Upon arrival at the site, a loading shovel would be used to spread and build up the maize on the clamp.
As the harvesting and ensiling of the maize is time critical, the hours of operation would be by necessity longer than those associated with the AD facility, probably between 10:00am and 9:00pm.
The transportation of all maize during the harvesting period would involve approximately 400 tractor deliveries to the site, of which half would access the farm via the A13 and cross the railway line.
Grass Silage: Grass silage harvest would generally take place between May and August.
Of the 2,000 tonnes of grass silage, approximately 40 percent the grass would be produced on land on the same side of the A13 as the farm. The remaining 60
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percent of the tonnage would be sourced from local land and would require transportation to the site via the A13.
The transportation of all grass silage would involve approximately 200 tractor deliveries, of which approximately 120 would access the farm via the A13 and cross the railway line.
FYM: FYM transport is planned for the end of the housing period in April.
Of the 2,500 tonnes of FYM, 2000 tonnes would be produced in cattle yards adjacent to the site. The remaining 500 tonnes would be imported from a rented local farm and would require transportation to the site via the A13.
The transportation of the imported 500 tonnes of FYM would involve approximately 50 HGV deliveries.
Digestate: Digestate produced would be spread on the on the applicant’s farmed area and neighbouring farms.
For three to four periods each year, digestate would be collected from the facility to be spread on nearby farmland as a fertiliser. Digestate movements associated with this process would be approximately 825 if collected by tractor per annum. These periods would be expected to be roughly between March and September, although it could be anytime between February and October when field conditions are suitable for access.
Collection times for digestate would be expected to be between 10am and 7pm in line with normal farm operating hours. Roughly half of the digestate spread of land at Marsh Farm and neighbouring land, which can be accessed from Marsh Farm. The remaining digestate would be taken to other farmland rented/utilised by the applicant by way of the A13.
3. POLICIES
The following policies of the Essex & Southend-on-Sea Waste Local Plan (2001) (WLP) and Basildon Borough Local Plan Saved Policies 2007 (BBLP) provide the development plan framework for this application. The following policies are of relevance to this application:
Policy BBLP WLP
The Definition of the BAS GB1 Green Belt Protected Areas BAS C1 The Marshes Area BAS C7 Water Wildlife BAS C13 Hazardous Substances BAS C15 Development Control BAS BE12 General Employment Strategy BAS E10 Waste Strategy W3A Page 20 of 92
Need for Waste Development W3C Flood Risk W4A Access W4C Anaerobic Digestion Facilities W7C Preferred Locations W8A Non Preferred Locations W8B Development Management W10E
The National Planning Policy Framework (the Framework), published in March 2012, sets out requirements for the determination of planning applications and is also a material consideration.
The Framework combined and streamlined all planning policy except for waste. Planning policy with respect to waste is set out in the National Planning Policy for Waste (NPPW published on 16 October 2014). Additionally the National Waste Management Plan for England (NWMPE) is the overarching National Plan for Waste Management. All decisions must comply with the Framework and NPPW, while the NWMPE is a material consideration in planning decisions.
The BBLP and WLP were both adopted pre 2004 and therefore, not in accordance with the Planning and Compulsory Planning Act 2004. As such, it is considered that the BBLP together with the WLP fall within the remit of ‘other cases’ under Paragraph 215 of the NPPF.
Paragraph 215 of the Framework states that due weight should be given to relevant policies in existing plans according to their degree of consistency with the Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given). The consistency of policies contained within the Essex and Southend Waste Local Plan are considered at Appendix 1. The level of consistency to be applied to policies contained within the BBLP is considered further within this report.
Paragraph 216 of the Framework states, in summary, that decision makers may also give weight to relevant policies in emerging plans according to the stage of plan preparation; the extent to which there are unresolved objections; and the degree of consistency to the Framework.
The emerging Essex and Southend Replacement Waste Local Plan is at an early stage of preparation and has not been submitted to the Secretary of State. Therefore, its policies are not considered here.
The level of consistency of the policies contained within the BBLP and WLP are considered further in the report.
4. CONSULTATIONS
BASILDON BOROUGH COUNCIL – Objects on the grounds that the proposal would contribute to congestion on the A13.
ENVIRONMENT AGENCY – No objection subject to a condition requiring proposals be carried out in accordance with submitted Flood Risk Assessment. Page 21 of 92
NATURAL ENGLAND – No objection.
ESSEX WILDLIFE TRUST – Any comments received will be reported
CAMPAIGN FOR THE PROTECTION OF RURAL ENGLAND – Any comments received will be reported
ROYAL SOCIETY FOR THE PROTECTION OF BIRDS – Any comments received will be reported
HIGHWAY AGENCY – No objection.
NETWORK RAIL – No objection.
HIGHWAY AUTHORITY – No objection.
COUNTY COUNCIL’S NOISE AND AIR QUALITY CONSULTANT – no objection subject to conditions requiring the submission of odour and noise management plans, odour and noise validation reporting and odour and noise monitoring compliance schemes
PLACE SERVICES (Ecology) – No objection subject to a condition requiring development being carried out in accordance with mitigation measures set out in Assessment of Impact Report and Badger Assessment.
PLACE SERVICES (Historic Environment) – No objection.
PLACE SERVICES (Urban Design) – No objection subject to a condition for material/colour details to be submitted.
PLACE SERVICES (Landscape) – No objection.
LOCAL MEMBER – Basildon – Westley Heights – Objects on the grounds of odour. In the summer months, the UK tends to feel winds of a south-westerly direction. The nearby homes in Vange, would be left to smell the odour from this Plant.
5. REPRESENTATIONS
151 properties were directly notified of the application. Three letters of representation have been received. These relate to planning issues covering the following matters:
Observation Comment
Highways
Objects from a road safety point of The Highway Authority and Highway view. The A13 has a national speed Agency have raised no objection to the
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limit of 70 mph. The possibility of slow proposal on highway safety and moving farm traffic holding up the traffic capacity grounds - See appraisal. as it turns into the level crossing area is cause for concern.
Strong concerns over accessing of the See above. site from the A13.
This is a notorious accident hotspot and See above. the danger is obvious with traffic slowing to access the crossing on a road with a 70mph limit.
Impact upon Amenity
Objects to the development on the The Environment Agency (EA) have basis of smells associated with raised no objection to the proposal – digestion plants. See appraisal.
6. APPRAISAL
The key issues for consideration are:
A. Need; B. Policy Considerations and Site Location, C. Ecology; D. Landscape and Visual Impact: E. Impact upon Amenity; and F. Highways
A NEED
The Framework states that the purpose of the planning system is to contribute to the achievement of sustainable development. Paragraph 97 of the Framework sets out that to help increase the use and supply of renewable and low carbon energy, Local Planning Authorities should recognise the responsibilities on all communities to contribute to energy generation from renewable or low carbon sources.
The NPPW in relation to need for waste management facilities states that waste planning authorities should ‘drive waste management up the waste hierarchy (Appendix A), recognising the need for a mix of types and scale of facilities, and that adequate provision must be made for waste disposal’.
Appendix A of the NPPW sets out that the following;
the most effective environmental solution is often to reduce the generation of waste, including the re-use of products – prevention; products that have become waste can be checked, cleaned or repaired so that they can be re-used – preparing for re-use;
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waste materials can be reprocessed into products, materials, or substances – recycling; waste can serve a useful purpose by replacing other materials that would otherwise have been used – other recovery, and; the least desirable solution where none of the above options is appropriate – disposal.
NPPW in relation to need states that WPA’s should ‘only expect applicants to demonstrate the quantitative or market need for new or enhanced waste management facilities where proposals are not consistent with an up-to-date Local Plan. In such cases, waste planning authorities should consider the extent to which the capacity of existing operational facilities would satisfy any identified need’.
The National Policy Statement for Renewable Energy (EN-3) and the National Waste Strategy (2013) support developments providing renewable energy, including AD, when electricity is injected in to the National Grid, as these offer climate change benefits and reduction in greenhouse gas emissions. Therefore, favourable to the pursuance of renewable energy and moving waste up the hierarchy, as long as there are no significant and demonstrable adverse impacts.
WLP policy W3A (Best Practicable Environmental Option) identifies the need for proposals to have regard to the following principles:
consistency with the goals and principles of sustainable development; whether the proposal represents the best practicable environmental option for the particular waste stream and at that location; whether the proposal would conflict with other options further up the waste hierarchy; conformity with the proximity principle.
WLP policy W3C (Need for Waste Development), requires significant proposals (above 25,000tpa) to demonstrate need in the context of the plan area’s waste arising’s. As noted above the proposal would have a maximum annual throughput of 12,000 tonnes.
The applicant has stated that the aim of the proposed development is to establish an AD plant on land at Marsh Farm, which would produce large quantities of renewable ‘green’ energy and a nutrient rich organic soil improver/fertiliser as a by-product. The applicant has confirmed that the main aim of the proposal is farm diversification, making use of available resources in a sustainable manner to produce an income from the sale of electricity to the grid.
The applicant goes on to state that the AD facility would provide a long-term source of income to the farming business, offer a diversified income structure buffering against agricultural market fluctuations, and offer the farm long term security. A further benefit is the digestate produced as part of the process. This is a nutrient rich bi-product of the AD process which can used to replace other fertilisers used on the farm, reduce input costs and greatly improve the farms carbon footprint (inorganic artificial fertilisers are known to have a large carbon Page 24 of 92
footprint due to the large amount of energy used in their production and transport).
Wider aims of the project are to help to meet the targets set by the Government for renewable energy production. The Coalition Government fully supports anaerobic digestion and aim to promote a ‘huge’ increase in energy from waste through anaerobic digestion.
In relation to inputs that applicant has stated that the site would require the input of maize, grass, FYM, and other feedstock’s for digestion, which would be sourced from the applicants own farm (Marsh Farm’s suckler herd and sheep flock) and the local area (poultry FYM). The main feedstock maize and grass silage would be grown locally and stored in clamps on the site. The plant would require a combination of approximately 6,250 tonnes of maize, 2,000 tonnes of grass silage and 2,500 tonnes of FYM and 1,000 tonnes of chicken manure or equivalent feedstock combination per annum. The applicant states that the feedstock requirements are calculated on biogas production and not volume. It is important to note that chicken manure has been imported and used on the farm as a fertiliser for more than 5 years.
Other energy crops including grass, potatoes and other whole crop silage crops may also be grown and utilised. Any crops used would form part of a sustainable rotation on locally farmed land.
The applicant highlights that the site would also look to source slurry for the initial start-up culture for the plant. FYM used to supplement the feedstock requirements would vary year to year depending on maize yields and FYM availability. This would come from local farms.
It considered that the principle of AD facilities to treat waste while producing fertiliser and energy would comply with the aims and objectives of the Waste Strategy, NPS EN-3, NPPW, WLP policies W3A and W3C. However, the appropriateness of the proposed location and environmental acceptability will be considered further.
B POLICY CONSIDERATIONS & SITE LOCATION
Paragraph 4 of the NPPW sets out that when WPA’s are identifying suitable sites and areas for waste management facility’s they should:
‘Identify the broad type or types of waste management facility that would be appropriately located on the allocated site or in the allocated area in line with the waste hierarchy, taking care to avoid stifling innovation (Appendix A); Plan for the disposal of waste and the recovery of mixed municipal waste in line with the proximity principle, recognising that new facilities will need to serve catchment areas large enough to secure the economic viability of the plant; Consider opportunities for on-site management of waste where it arises; Consider a broad range of locations including industrial sites, looking for opportunities to co-locate waste management facilities together and with Page 25 of 92
complementary activities. Where a low carbon energy recovery facility is considered as an appropriate type of development, waste planning authorities should consider the suitable siting of such facilities to enable the utilisation of the heat produced as an energy source in close proximity to suitable potential heat customers, and; Give priority to the re-use of previously-developed land, sites identified for employment uses, and redundant agricultural and forestry buildings and their curtilages’.
WLP policy W7C (Anaerobic Digestion Facilities) supports AD facilities at WLP Schedule 1 sites (Preferred Sites) and locations other than those identified within Schedule 1 where they comply with policies W8B and W8C, in association with other waste management development or intensive livestock units.
WLP policy W8C (Small Scale Facilities) states that development with an annual throughput of under 25,000 tonnes would be allowed at locations as above and also in rural locations where they would:
be mainly located within existing buildings not requiring significant adaptation or extension; not prejudice the openness or character of the rural location; and not result in a need to replace hardstandings.
As noted above the maximum annual throughput of the site would be 12,000 tonnes per annum. The site is not located within a Schedule 1 location. However, it is considered that Schedule 1 sites are strategic locations for sites processing over 50,000tpa and therefore, would not be appropriate for the proposal. This is also the case for WLP policy W8B which seeks to set non-preferred locations for sites with an annual capacity of 50,000tpa. In light of this WLP policy W8C is the appropriate policy to assess the sites location on a non-preferred basis.
Therefore, it is considered that the proposal would be used in association with an existing livestock farm, located near existing farm buildings, on existing hardstandings, would provide an opportunity for on-site management of waste where it arises and would re-use of previously-developed land/located adjacent to the curtilage of agricultural buildings in accordance with the NPPW and WLP policies W7C and W8C.
Green Belt: As noted earlier within the report the application site is located within the Metropolitan Green Belt. The Framework reaffirms that the Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.
The Framework clarifies that Green Belt will continue to serve five purposes:
to check the unrestricted sprawl of large built-up areas; to prevent neighbouring towns merging into one another; to assist in safeguarding the countryside from encroachment; to preserve the setting and special character of historic towns; and Page 26 of 92
to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.
As with previous Green Belt policy, the Framework confirms that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances (VSC).
Furthermore, the NPPW at paragraph 6 states that ‘Green Belts have special protection in respect to development. In preparing Local Plans, waste planning authorities, including by working collaboratively with other planning authorities, should first look for suitable sites and areas outside the Green Belt for waste management facilities that, if located in the Green Belt, would be inappropriate development. Local planning authorities should recognise the particular locational needs of some types of waste management facilities when preparing their Local Plan’.
BBLP policy BAS GB1 (The Definition of the Green Belt) states that “The boundaries of the Green Belt are drawn with reference to the foreseen long term expansion of the built up areas acceptable in the context of the stated purposes of the Green Belt and to the provisions specified in this Plan. The boundaries are shown on the Proposals Maps”.
It is considered that the proposal would not fall within the exceptions of appropriate development as defined by the Framework and would therefore; need to be considered as inappropriate development whereby the proposal should not be approved except in VSC.
The applicant has indicated that VSC do exist for the proposal and in this case they comprise the following;
Firstly, the applicant has stated that there is a clear functional relationship between the facility and the farm. Most of the feed for the digesters would be sourced from the farm, minimising the need to travel and replicate much of the traffic movements that are already occurring on the farm present. The vehicles transporting the material would be farm vehicles again as at present. The character of the use would be similar to the existing agricultural use of the land.
In relation to the built form of the proposal the applicant in support of their VSC has indicated that the proposed digesters are similar storage receptacles to what may be normally seen on a farm. Silage clamps are familiar features on the farm. The structures would be sited mainly on an area that has been used recently for the storage of large amounts of imported green waste. Part of the site comprises hard standing, which was previously built on. All of the structures would be sited immediately adjacent to the existing farm steading, which contains a number of large farm sheds. There are two high mobile phone towers located within the farm steading.
The existing built up area is well contained by the A13 dual carriageway and the Fenchurch Street to Shoeburyness railway line. The applicant in light of the sites
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setting has stated that in these circumstances the proposed development would not add to the urban sprawl of Basildon. It would not increase the likelihood Basildon merging into any other town. The scale of the development would be relatively minor and would not constitute a significant encroachment into the countryside. The proposal would not prejudice any plans for urban regeneration and would in fact partly involve recycling previously developed land.
In conclusion to their VSC the applicant noted that the proposed development would be limited in scale and overall footprint. It would not increase the overall footprint of development of the farm and surrounding buildings significantly. The height and massing of the structures would be similar to the height and massing of existing structures. In this way the openness of the green belt at this location would be preserved.
Accordingly, it is considered that there are a number of very special circumstances in support of the application, being, in summary, that the development proposed qualifies, both as a farm diversification project, a renewable energy generation scheme, and a climate change mitigating development, the development would be partially built within an existing built form area of the farm, the proposal would be used to assist in managing onsite waste arising thereby reducing the alternative sites to be considered and the principal structures are uniformed into one location and not spread out increasing the openness of the Green Belt. It is therefore considered there are very special circumstances to allow the development within the Green Belt in accordance with the Framework, NPPW and BBLP policy GB1. Nevertheless the report further considers the environmental and other impacts of the proposed development.
C ECOLOGY
WLP policy W10E (Development Management) provides that waste management development will be permitted where satisfactory provision is made in respect of, inter alia, the effect of the development on nature conservation, particularly on or near Site of Special Scientific Interest (SSSI) or land with other ecological or wildlife designations.
BBLP policy BAS C1 (Protected Areas) provides, inter alia and in summary, that the Council will not permit development which may have an adverse material effect on a SSSI and the criteria which the Council will take into account in dealing with planning applications affecting SSSIs, Sites of Importance for Nature Conservation and other important habitats will be:-
i. effects on significant nature conservation or scientific features of the site; ii. the importance of the site and of any nature conservation or scientific features affected; and iii. any benefits of the proposed development.
BBLP policy BAS C13 (Water Wildlife) provides that the development which may adversely and materially affect any river, pond, lake or other important water feature or wildlife habitat of acknowledged importance will not normally be
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permitted.
The proposed development is in close proximity to the Vange and Fobbing Marshes SSSI, Vange Hill Local Nature Reserve, Environmentally Sensitive Area – Essex Coast and RSPB Reserve – Essex Marshes.
An Ecological Report, an Assessment of Impact and a Badger Assessment were lodged in support of the application.
The Assessment of Impact concludes that there is likely to be a minimal impact to protected and important species on site. Some mitigation is proposed to ensure there are no negative effects to wildlife. These mitigation measures include carrying out works in winter, landscaping enhancements, use of appropriate lighting, erection of reptile exclusion fencing and badger surveying.
The Badger Assessment concludes that the site is not considered to be used by Badgers and therefore, the proposed works can proceed with negligible risk of harm to Badgers or their setts.
It is noted that Natural England has not objected to the application and commented that the proposed development will not damage or destroy the interest features for which the site has been notified.
Place Services (Ecology) has also not objected to the application, subject to the development being carried out in accordance with the mitigation measures set out on page 10 of the Assessment of Impact report and page 6 of the Badger Assessment.
It is considered that the proposal would not have an adverse effect upon ecology. Accordingly, it is considered that the proposal is in compliance with the WLP policy W10E and BBLP policy BAS C1 and BBLP policy BAS C13
D LANDSCAPE AND VISUAL IMPACT
The NPPW states in relation to assessing sites at Appendix B part C Landscape and Visual impacts that ‘Considerations will include (i) the potential for design-led solutions to produce acceptable development which respects landscape character; (ii) the need to protect landscapes or designated areas of national importance (National Parks, the Broads, Areas of Outstanding Natural Beauty and Heritage Coasts) (iii) localised height restrictions’.
WLP policy W7C (Anaerobic Digestion Facilities) requires waste development to make satisfactory provision is made in respect of the effects on landscape and the countryside with consideration given to the Green Belt. The supporting text specifically notes that landscaping and design can ameliorate impact. More specifically policy W10E only permits development where satisfactory provision is made for the effects on the landscape and the countryside.
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BBLP policy BAS E10 (General Employment Strategy) states that proposals for industrial, business and office development (Use Classes B1-B8)1 will be considered with regard to, inter alia, the following criteria:
Provision for the landscaping and screening of buildings and storage areas with a landscaping strip abutting all highways will normally have a minimum width of 5 metres to be retained at all times; and The design, form, scale, and materials of the development will be expected to be appropriate and sympathetic to neighbouring developments, particularly adjacent to residential areas.
The site is located within the Coastal Protection Area.
BBLP policy BAS C7 (The Marshes Area) provides that “The Council will not permit development, including recreational proposals, which would cause harm to the landscape, the open and rural character or the wildlife of the marshes Coastal Protection Area”.
Concerns have been raised that proposal would have an adverse impact upon the landscape.
The applicant has submitted a Landscape and Visual Impact Assessment, a Design and Access Statement and Detail Landscape Proposal in support of the application.
It is concluded in the Landscape and Visual Impact Assessment that the development will have some effects on the landscape and visual receptors and that here will be a moderate effect on the public footpath to the east of the site. It is, however, concluded that the long-term effect of the development on the landscape receptors of the local landscape character types will not be significant as the effects will be localised, affect a limited area of the landscape and have a restricted area of visual influence.
It is noted that there has been no objection from Place Services (Landscape) and that Place Services (Urban Design) supports the proposal subject to conditions that no development take place until precise details of the materials/colours used on tanks, digesters, CHP and transformer have been submitted and approved by the Waste Planning Authority.
It is therefore considered that the proposal is in compliance with the NPPW, WLP policy W7C, WLP policy W10E and BBLP policy BAS C7.
E IMPACT UPON AMENITY
The Framework aims to prevent unacceptable risks from pollution and ensure new development is appropriate for its location, in so doing consider whether the development would be an acceptable use of land. It does qualify this by stating
1 Class B1 Business (B1a – Offices, B1b - Research and Development facilities, B1c - Light Industry (qv)), Class B2 - General Industry, Class B8 - Storage or Distribution
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that pollution control regimes must be assumed to operate effectively and enforced; therefore planning should not duplicate these. Planning considerations nonetheless need to consider impacts such a noise, light pollution and other adverse impacts on health and the quality of life, while recognising development will often create some impacts, which should not be unreasonably restricted.
The NPPW goes on to state that when assessing a proposals impact upon amenity Local Planning Authorities should consider the likely impact on the local environment and on amenity against the criteria set out in Appendix B and the locational implications of any advice on health from the relevant health bodies. Waste planning authorities should avoid carrying out their own detailed assessment of epidemiological and other health studies.
WLP policy W10E (Development Management) provides that waste management development will be permitted where satisfactory provision is made in respect of, inter alia, the effect if the development on the amenity of neighbouring occupiers, particularly from noise and smell.
BBLP policy BAS E10 (General Employment Strategy) states that proposals for industrial, business and office development (Use Classes B1-B8) will be considered with regard to, inter alia, whether adequate controls should be installed to limit the emission of noise, pollutants, discharge and smells which could be associated with the proposed use.
Noise: The closest unconnected residential properties to the proposed development are Honey House and Rivenhall, both of which are located approximately 115m to the west of the proposed development boundary and 173m from the CHP unit.
A 6m bund is proposed to the north of the AD installation.
The applicant submits that anaerobic digestion is a silent process, the CHP engine will be within a noise proof container, noise generated from farm vehicles will be no different than from other agricultural operations, tractor movements can be managed to occur during work hours and that background noise levels at the site are higher than normal due to close proximity to the A13 and railway line.
The applicant has lodged an Air, Odour and Drainage Impact Assessment (AODIA) and a Noise Impact Assessment (NIA) in support of the proposal.
The AODIA identifies transportation and delivery, operation of the materials transfer systems and operation of CHP engines as potential noise sources. The AODIA details that the proposed mitigation measures would result in the operation of the materials transfer systems and operation of CHP engines having no impacts and transportation and delivery having minor impact.
The NIA considered both the operation of the anaerobic digester plant and the movement of vehicles servicing the plant. The NIA concludes that the noise levels due to the operation of the new facility are generally unlikely to result in compliant at the nearest residential properties. In the worst case, the likelihood of complaint
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is of marginal significance.
The Council’s noise consultant is content with the proposal subject to conditions requiring the submission of a noise management plan, noise validation reporting and a noise monitoring compliance scheme.
It is therefore considered that subject to the proposed conditions the proposal is in compliance with the Framework, the NPPW, WLP policy W10E and BBLP policy BAS E10. Odour and Air Quality: It is noted that there has been objection from the Local Member due to concerns regarding odour and that representations have been received objecting to the proposal on the basis of, inter alia, odour.
The applicant submits that during normal operation the plant will not release odours other than those expected from the usual storage of silage on a farm or from cattle housed in yards and that such odours will be carefully managed to through the sheeting of clamps and clamp face management.
It is noted that silage is currently utilised at the site as cattle feed and that chicken manure has been imported and used on the farm as a fertiliser for more than 5 years. It also noted that to some extent digestate spreading will replace the spreading of artificial fertilises and manure.
In addition to the AODIA, the applicant has lodged an Air Quality Assessment in support of the proposal.
The AODIA states that under normal operating conditions there will be no odour emissions anticipated from the installation and that the installation has been designed to ensure there will be no fugitive emissions. Mitigation and control measures are detailed.
BBLP policy BAS C15 (Hazardous Substances) provides, inter alia, that the Council will not permit hazardous development which would cause material harm to the health and safety of the District's population.
The Air Quality Assessment concludes that the overall operational air quality of the proposal in terms of human health and local ecological sites are judged to be insignificant.
The Environment Agency has also advised that an odour management plan may be required.
The Council’s air quality consultant is content with the proposal subject to conditions requiring the submission of an odour management plan, odour validation reporting and an odour monitoring compliance scheme.
It is therefore considered that subject to the proposed conditions the proposal is in compliance with the Framework, the NPPW, WLP policy W10E, BBLP policy BAS E10 and BBLP policy BAS C15.
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Flood Risk and Drainage: The applicant submits that the design of the silage clamps has been in accordance with the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) Regulations 2010, DEFRA Codes of Good Agricultural Practice and the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) Regulations 1991 (as amended 1997). A concrete wall and bund has also proposed surrounding the site to seal the plant from leakage during spills.
The AODIA states in respect of drainage impacts that there will be no foul or contaminated discharges from the site into either groundwater or any controlled waterways, direct or via soakaways.
The Environment Agency has advised that it welcomes that the applicant has recognised the need for the silage tanks to be Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) Regulations 2010.
Paragraph 100 of the Framework provides, inter alia, that inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk, but where development is necessary, making it safe without increasing flood risk elsewhere.
Paragraph 103 of the framework provides:
When determining planning applications, local planning authorities should ensure flood risk is not increased elsewhere and only consider development appropriate in areas at risk of flooding where, informed by a site-specific flood risk assessment following the Sequential Test, and if required the Exception Test, it can be demonstrated that:
Within the site, the most vulnerable development is located in areas of lowest flood risk unless there are overriding reasons to prefer a different location; and Development is appropriately flood resilient and resistant, including safe access and escape routes where required, and that any residual risk can be safely managed, including by emergency planning; and it gives priority to the use of sustainable drainage systems.
WLP policy W4A (Flood Risk) restricts development where there would be an increased risk of flooding as a result of impediment to the flow or storage of surface water or where there would be an adverse effect on the water environment as a result of surface water run-off.
The site partially affects Flood Zones 3a, 2 and 1.
A Flood Risk Assessment has been submitted in support of the application. It states that following the guidelines contained within the Policy and Planning Policy Statement 25 – Practice Guide, the proposal is considered to be suitable provided mitigation (including adequate warning and evacuation procedure) can be maintained for the lifetime of the development.
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It is noted that the Policy and Planning Policy Statement 25 – Practice Guide has since been archived and replaced with Planning Practice Guidance – Flood Risk and Coastal Change (6 March 2014).
There has been no objection from the Environment Agency (EA). The EA advise that the proposed development would only meet the requirements of the Policy if the mitigation measures detailed in the in the Flood Risk Assessment, in particular that the finished floor levels of the development are set no lower than 5.81m above Ordnance Datum, are implement and secured by condition.
It is considered that subject to the proposed mitigation measures the development is not inappropriate in respect of Flood Zones 3a, 2 and 1 and it is therefore considered that the proposal is in compliance with the Policy and WLP policy W4A.
F HIGHWAYS
WLP policy W4C (Access) details that access for waste management sites will normally be by short length of existing road to the main highway network, via a suitable existing junction.
In addition, WLP policy W10E (Development Management) provides that waste management development will be permitted where satisfactory provision is made in respect of, inter alia, the impact of road traffic generated by the development on the highway network.
BBLP policy BAS E10 (General Employment Strategy) states that proposals for industrial, business and office development (Use Classes B1-B8) will be considered with regard to, inter alia, the following criteria:
the surrounding roads must be adequate to accommodate the increase in vehicle traffic generated; and Developments should relate to the primary road network without using residential estate roads.
Concerns have been raised that the proposed traffic movements associated with the proposal would have an adverse impact upon traffic using the A13. A Transport Statement was submitted in support of the application, which concluded that the net effect of the proposal would be an additional 1,196 extra movements per annum (3.28 movements per day on average) on the A13.
It is noted that the Highway Authority and the Highways Agency (East of England) have not objected to the proposal and that the Highways Authority has commented that:
The existing farm access has been in use for many years and in the last 5 years there have been no recorded personal injury accidents on the relevant section of the A13 relating to vehicles using the Marsh Farm access or vehicles associated with the current farm operations; The Highway Authority has reviewed the Transport Statement and noted Page 34 of 92
that at particular times of year there would be peak vehicle movements on the A13; The daily number of vehicle movements associated with the proposed development are low (3.28 movements per day on average); and The Highways Authority does not consider that the proposed development would be detrimental to highway safety, capacity and efficacy.
The access road crosses a railway line via a level crossing. It is noted that Network Rail has not objected to the application.
It is therefore considered that the proposal is in compliance with WLP policy W4C, WLP policy W10E and BBLP policy BAS E10.
7. CONCLUSION
It is considered that there is justified need for the proposal, primarily on the basis that the construction and use of the AD facility would allow for the production of large quantities of renewable ‘green’ energy.
Whilst the development is defined by the Framework to be inappropriate within the Green Belt, it is considered that there are a number of very special circumstances to justify the development within the Green Belt and the proposal is therefore considered to be in accordance with the Framework, NPPW and BBLP policy GB1.
On balance, it is considered that construction and use of the AD facility would be in conformity with the Framework, NPPW, WLP policies W3A, W3C, W4A, W4C, W7C, W8A, W8B and W10E, and BBLP policies BAS GB1, BAS C1, BAS C7, BAS C13, BAS C15, BAS BE12 and BAS E10.
Finally, it is considered that any impact the proposal would have in respect of odour, noise and the landscape and visual receptors would be offset by the environmental, social and economic benefits derived from the construction and use of the AD facility. Accordingly, it is considered that the proposed would represent sustainable development for the purposes of the NPPF, WLP Policy W3A and therefore planning permission should be granted.
8. RECOMMENDED
That planning permission be granted subject to conditions covering the following matters:
1. Commencement within 5 years 2. Development in accordance with Submitted details 3. No waste other than those waste materials defined in the application details shall enter the site. 4. Unless otherwise agreed in writing by the Waste Planning Authority, no more than 12,000 tpa of waste shall enter the site. Records of the tonnages of material entering the site shall be kept by the operator and made available to the Waste Planning Authority within 7 days of a written request.
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5. Details of the materials/colours used on tanks, digesters, CHP and transformers 6. The development shall only be carried out in accordance with the approved Flood Risk Assessment (FRA) 7. No development shall commence until an Odour Management Plan (OMP) has been submitted and approved 8. Within 3 months of the acceptance of the first load to feed the digester an odour validation report shall be submitted to the WPA 9. No development shall commence until a Noise Management Plan (NMP) has been submitted to and approved in writing by the WPA. 10. Within 3 months of the first operation of the development a Noise Validation report shall be submitted to the WPA 11. NSE3 Monitoring Noise Levels
BACKGROUND PAPERS
Consultation replies Representations National Planning Policy Framework National Planning Policy Guidance
THE CONSERVATION OF HABITATS AND SPECIES REGULATIONS 2010
The proposed development would not be located within a European site.
Therefore, it is considered that an Appropriate Assessment under Regulation 61 of The Conservation of Habitats and Species Regulations 2010 is not required.
EQUALITIES IMPACT ASSESSMENT: This report only concerns the determination of an application for planning permission. It does however take into account any equality implications. The recommendation has been made after consideration of the application and supporting documents, the development plan, government policy and guidance, representations and all other material planning considerations as detailed in the body of the report.
STATEMENT OF HOW THE LOCAL AUTHORITY HAS WORKED WITH THE APPLICANT IN A POSITIVE AND PROACTIVE MANNER
In determining this planning application, the Essex County Council has worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with the planning application by liaising with consultees, respondents and the applicant/agent and discussing changes to the proposal where considered appropriate or necessary. This approach has been taken positively and proactively in accordance with the requirement in the NPPF, as set out in the Town and Country Planning (Development Management Procedure) (England) (Amendment No.2) Order 2012
LOCAL MEMBER NOTIFICATION
BASILDON – Westley Heights
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Page 38 of 92 AGENDA ITEM 5b
DR/47/14
Committee: DEVELOPMENT & REGULATION
Date: 28 November 2014
INFORMATION ITEM - APPEAL DECISION Proposal: Erection and use of a concrete batching plant and ancillary water and aggregate recovery and recycling facilities Location: Former Goods Yard, Land off Brook Street, Chelmsford, Essex, CM1 1SU ECC Reference: ESS/32/13/CHL Planning Inspectorate Reference: APP/Z1585/A/14/2217629 Applicant/Appellant: Brett Concrete Limited
Report by Director for Operations, Environment and Economy Enquiries to: Tom McCarthy Tel: 03330 136816 The full application can be viewed at www.essex.gov.uk/viewplanning
The appeal site
Reproduced from the Ordnance Survey Map with the permission of the Controller of Her Majesty’s Stationery Office, Crown Copyright reserved Essex County Council, Chelmsford Licence L000 19602
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1. BACKGROUND AND SITE
At the October 2013 Development and Regulation committee meeting it was resolved that the application for the erection and use of a concrete batching plant and ancillary water and aggregate recovery and recycling facility at land off Brook Street, Chelmsford (the former goods yard) be refused planning permission.
The site itself is situated within Chelmsford city centre and is accessed via Brook Street to the north west of the site. Brook Street itself is accessed from New Street further to the north west of the site and both vehicular and pedestrian access, to the site, is from Brook Street.
The site is identified as an opportunity area (Opportunity Area 34) in the Chelmsford Town Centre Area Action Plan (part of Chelmsford City’s Local Development Framework). However, the site has an extensive history as an aggregates transhipment site and is safeguarded within the Minerals Local Plan (2014) for this purpose.
The application proposed an annual output of concrete and floor screed in the region of 22,400 cubic metres, which is an average of 81 cubic metres per working day (275 working days per year). The proposed hours of operation of the plant were:
07:00-18:30 hours Monday to Friday (excluding Public Holidays); and 07:00-13:00 hours Saturday
The application, to which a considerable number of public representations were received, was refused planning permission for the following reasons:
1. The development would fail to provide any environmental enhancement as required by the Chelmsford Borough Local Development Framework – Chelmsford Town Centre Area Action Plan (2008) and would therefore adversely affect and undermine the ability for the creation of a new built frontage to face Brook Street. The development would therefore undermine the overall objectives of the Chelmsford Borough Local Development Framework – Chelmsford Town Centre Area Action Plan (2008) and would not deliver sustainable development as required by the Framework. The development would also be contrary to policies CP7 (Area Action Plans) and CP22 (Securing Economic Growth) of the Chelmsford Borough Local Development Framework – Core Strategy and Development Framework (2008);
2. The development would introduce uses such as mixing, processing and manufacturing outside the lawful use of the current permitted use of storage and distribution causing a detrimental impact to the local environment and amenity contrary to policy MLP13 (Development Control) of the Minerals Local Plan (1997), Policy S10 (Development Management Criteria) of the Replacement Minerals Local Plan (SoS Submission 2013) and policies CP7 (Area Action Plans), CP13 (Minimising Environmental Impact), DC4 (Protecting Existing Amenity) and DC29 (Amenity and Pollution) of the
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Chelmsford Borough Local Development Framework – Core Strategy and Development Framework (2008);
3. The development’s plant/building design would not be in keeping with the surrounding town centre location, contrary to policy DC45 (Achieving High Quality Development) of the Chelmsford Borough Local Development Framework – Core Strategy and Development Framework (2008); and
4. The submitted Noise Impact Assessment provides insufficient information to be able to fully establish and determine whether there would be an acceptable noise impact from the proposed development on the local environment and amenity, including the impact upon nearby residential and business properties. It is therefore considered that the development could have an unacceptable impact from noise emissions on local amenity, contrary to the Framework, policy MLP13 (Development Control) of the Minerals Local Plan (1997) and policies CP13 (Minimising Environmental Impact), DC4 (Protecting Existing Amenity) and DC29 (Amenity and Pollution) of the Chelmsford Borough Local Development Framework – Core Strategy and Development Framework (2008).
2. CURRENT POSITION
An appeal was lodged, by the applicant, against the refusal and the case was determined by way of written representations. The Inspector who was appointed by the Secretary of State for Communities and Local Government to determine the case issued his decision on 29 September 2014 and this is attached at Appendix 1.
The Inspector in the determination of the appeal, and his subsequent report, considered that the main issues in the case were: a) whether the scheme would be an appropriate form of sustainable development for the site and for Chelmsford Town Centre, with particular regard to the development plan and to national planning policy; b) the effect of the proposed development upon the character and appearance of the appeal site and the surrounding area; and c) the effect of the proposed development upon local living and working conditions.
In respect of the above the Inspector considered that, on balance, the economic benefits of the scheme in terms of job creation and the appellant’s wider operational needs would not out-weigh the harm arising from the development. Expanding on this, it was considered that the proposed development would be contrary to the commitment of policy CP22 of the Chelmsford City Council Core Strategy, in supporting high value businesses, and policy CP7 which sees the purpose of the Area Action Plan to provide a framework for improvements that will reinforce the cities role as the ‘Capital of Essex’. With regard to this, it was also considered that the development would be inconsistent with the aims of the Framework in relation to sustainable development, transport and the welfare of town centres.
The Inspector furthermore considered that the development would significantly
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harm the character and appearance of the appeal site and surrounding area. Accordingly, it was considered the proposed development would be contrary to policy DC45 of the Chelmsford City Council Core Strategy and the Framework which places great importance upon sustainable, high quality design and the significance of local distinctiveness.
Whilst it was considered by the Inspector that the development would not be harmful to local living and working conditions, and would make other positive contributions to the area, it was considered overall that these benefits would be out-weighed by the harm arising in terms of sustainable development, and in terms of character and appearance. The appeal was therefore dismissed.
LOCAL MEMBER NOTIFICATION
CHELSMFORD – West CHELMSFORD – Central (adjacent) CHELSMFORD – Springfield (adjacent)
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APPENDIX 1
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AGENDA ITEM 6a
DR/48/14
committee DEVELOPMENT & REGULATION date 28 November 2014
TOWN AND VILLAGE GREENS - INFORMATION ITEM
HIGH COURT JUDGEMENT - town or village green application at ‘Mill Lane Green’ and adjoining sea wall at Walton on the Naze, Essex
Report by Director for Essex Legal Services Enquiries to Jacqueline Millward Tel: 033301 39671
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1. PURPOSE OF REPORT
To note the judgement of the High Court on 28th July 2014 to dismiss the judicial review application made by Mr Richard Naylor in relation to this committee’s decision to refuse Diana Humphreys’ application to register land at Walton on the Naze as a town or village green based on the recommendation of its inspector.
2. BACKGROUND TO THE JUDGEMENT
On 22 February 2103 this committee received a report relating to an application dated 11 April 2011 was made by local resident Miss Diana Humphreys for registration of land situated off Mill Lane and including the sea wall in Walton on the Naze under the Common Act 2006 (“the 2006 Act”). The area applied for is on the plan at the front of this report.
A non-statutory public local inquiry had been held into the matter and the committee consider the report of Mr Alun Alesbury of counsel on the matter. He concluded that that the evidence in relation to the application had not met the statutory criteria set out in section 15(2) of the 2006 Act which applied to Miss Humphreys’ application.
In particular the criteria were not met are those relating to ‘as of right’ use, because the land had been maintained by the district council for most of the 20 year period claimed and use for a sufficiently continuous period of 20 years up to the time of the application, because there had been an interruption when works had been carried out to the sea wall and part of the application land had been inaccessible.
These two principal points and others were subject to Mr Naylor’s application for leave to appeal. This was initially rejected by Elizabeth Cooke sitting as Deputy High Court Judge on 28 June 2013 (Appendix 1) but permission was later given by Deputy High Court Judge Anthony Thornton QC on 7th March 2014. That judgement is attached at Appendix 2. Mr Naylor had obtained a protected costs order limiting his costs to £3000 in the event his judicial review was unsuccessful. Judge Thornton also issued a note to the parties of his views on some of the points on which he had given permission to apply on 21 May 2014 (Appendix 3).
When the matter came to substantive hearing on 3 July 2014 three points were argued:- (i) that the committee erred in concluding, on the basis of the information it had, that the public’s use of the application land for lawful sports and pastimes had been ’by right’ during the 20 year period before the application for its registration was made, rather than being ‘as of right’ throughout the period (as section 15(2)(a) of the 2006 Act requires); (ii) that, in any event, it failed in the duty, which it had in the circumstances, to investigate before taking the decision impugned the basis on which Tendring District Council had been maintaining and managing the relevant land during the period; and (iii) that it further erred in concluding that the relevant land had not been continuously used without interruption for lawful sports and pastimes in that period. Both parties were represented by counsel at that hearing.
3. THE JUDGEMENT
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Judgement was given on 28th July 2014 by John Howell QC sitting as a Deputy High Court Judge.
The judge accepted that, since this is a claim for judicial review of a decision vested by Parliament in the registration authority, subject to issues of law or rationality, the factual issues were for the registration authority to resolve.
In relation to issue (i), the ‘by right’ issue, the judge considered that the inspector was right that it must be assumed, unless there is evidence to the contrary, that Tendring District Council did what it did properly and lawfully in pursuance of some statutory power enabling it to do so. That arrangement may have been terminable on notice or on reasonable notice or at some other time by the landowner or the district council but, while such an arrangement subsisted, the landowner had plainly permitted, or had at least authorised the district council to permit, the public to use the relevant land for recreational purposes.
In this case the district council had mown the grass regularly but also regularly picked up litter and erected and replaced a ‘dog poo bin’ on a post it erected there. The inspector found that it had been maintained ‘as something which looked like, and was de facto available as, a piece of public open space or park land, or indeed a town or village green’ and that ‘it was unsurprising … that several witnesses for the Applicant said that (until recent times) they had believed that the land was in fact owned by the district council, as some kind of common or public amenity land’. The judge agreed that it would appear to follow from the inspector’s findings of fact that permission to use the relevant land, whether granted by the landowner or by the district council pursuant to the arrangement which it is to be taken it had with the landowner, was communicated in the relevant period to the public using the land by such conduct.
Consideration was given to the relevant statutory powers which may have enabled the district council to do this. In relation to the power in the Open Spaces Act 1906 (“the 1906 Act”), when a local authority has acquired any control over an open space even if they have not acquired any estate or interest in it, then, subject to any conditions under which such control was acquired, in accordance with section 10 of the 1906 Act, it must hold and administer the land in trust ‘to allow, and with a view to, the enjoyment thereof by the public as an open space … and for no other purpose.’
The judge considered that when a local authority has acquired a right to manage or control land for the purpose of allowing the public to use it for recreational purposes it could not lawfully object to the public so using it whilst its rights subsist. It matters not whether section 10 of the 1906 Act or anything similar is applicable. Such rights as it has acquired are only held for the purpose of, and are limited to, allowing the public to use such land for recreational purposes and it has no power or rights to exercise for any other purpose.
He considered that it made no difference to the right which the public has to use the land that is made available for public recreational use by a local authority by virtue of an arrangement it has with the landowner which does not give the
Page 51 of 92 authority itself any estate or legal interest in that land. Whilst it was so made available, members of the public would not be using it ‘as of right’; they would be using it ‘by right’ for a purpose for which they had been lawfully invited to use it.
In his judgement, any other conclusion would be contrary to the public interest in the provision of recreational facilities for the benefit of the public. The provisions of the 1906 Act plainly indicate that Parliament thought that it was in the public interest that public enjoyment of open spaces should be facilitated by agreements under which local authorities maintained and managed them even if the local authority acquired no estate or interest in them. Those persons who may otherwise be prepared to enter into such agreements with local authorities may be deterred from doing so if the public may obtain indefeasible rights after 20 years.
He did not accept the submissions on behalf of Mr Naylor that the inspector unlawfully failed to ask himself the question whether the landowner’s discretion to put a stop to the use of the relevant land for lawful sports and pastimes was constrained. The relevant question was not whether the landowner could have brought any arrangements with the district council to an end. The relevant question was whether, whenever members of the public used the relevant land for lawful sports and pastimes in the 20 year period, they did so as trespassers. Whilst the arrangement with the district council subsisted, the landowner could not have contended that any member of the public using the land was a trespasser, any more than any landowner could do in respect of any person to whom he had given a revocable permission to use it for that purpose. Members of the public could use it for recreational purposes ‘by right’.
Nor did he accept the submission on behalf of Mr Naylor that the 1906 Act required a ‘super-added’ trust where the land belonged to someone else but was managed or controlled by a district council under section 9 of the 1906 Act.
The inspector had also considered that the district council may have been exercising powers available to them under section 164 of the 1875 Public Health Act (“the 1875 Act”). Mr Naylor’s counsel argued that this relied on the district council having taken ownership or a lease of the land. The judge considered this was too narrow a construction of the Act and it would not enable the powers to lay out, plant, improve and maintain land for the purpose of public walks and pleasure grounds in all the circumstances envisaged in the legislation. There was no ostensible reason why such powers should not be exercised in respect of land a local authority may be able to manage and maintain by virtue of an agreement with its owner which does not give it an estate or interest in the land.
The inspector was entitled to conclude on the basis of the evidence which he had that the use made of the land for lawful sports and pastimes had been ‘by right’ (not ‘as of right’) during part of the 20 year period before the application for its registration was made given that the relevant land had been made available by the district council for such use by the public during part of that period (in accordance with the presumption of regularity) with the agreement of the landowner under the powers which that authority had vested in it by section 9 of the 1906 Act.
In relation to issue (ii), the lack of 20 years use due to interruption, counsel for the
Page 52 of 92 claimant argued the inspector’s conclusion was flawed for three reasons. Firstly, to constitute a relevant interruption by a third party there must be a physical ouster of local inhabitants. Secondly, the use need not be continuous throughout the 20 year period and a three month interruption need not defeat a claim to registration. Thirdly, that in any event the period should be disregarded as an interruption within the meaning of section 15(6) of the 2006 Act concerning statutory prohibitions.
As to the first point, on physical ouster, the judge considered this was misconceived. Physical exclusion and carrying on an incompatible use of it are two different ways in which use may be interrupted. If there are works carried out that mean the use of the land cannot continue, in his judgement, there is no reason why such a use should be treated as continuing even if they are not physically excluded. The Court of Appeal in Betterment Properties (Weymouth) Ltd v Dorset County Council [2012] EWCA Civ 250, [2012] 2 P & CR 3 (“Betterment”) looked at ‘whether the physical disruption to public use caused by the fencing off of the site for about four months was sufficient to interrupt user of that land’. It did not address a case in which the land could not be used because of works being carried on on it, so the claimant was taking parts of that judgement out of its context.
As to the second point, on continuous use throughout the 20 year period, the judge considered that the question whether any break in use is sufficient to interrupt the continuous use of it for that purpose in the 20 year period, is a matter of judgement for the registration authority subject to establishing any grounds for Wednesbury unreasonableness. The claimant’s counsel had no shown the inspector had misdirected himself in law. The conclusion the inspector came to was not submitted to be one which no reasonable person could have reached in this case. Such a submission would have been difficult to advance given that the Court of Appeal had found no error in the conclusion that a four month break associated with the execution of works was sufficient to constitute an interruption in Betterment.
As to the third point, in relation to the saving for statutory prohibition periods, the judge considered the part of the complaint that the registration authority should have established the basis on which the National Rivers Authority carried out their works was without merit. No party had placed any reliance on the potential relevance of section 15(6) of the 2006 Act until after the determination by committee. In any event at the hearing the county council’s counsel submitted that the flood defence works were carried out under powers in section 165(2) of the Water Resources Act 1991. No other power to do the works had been identified by the claimant. The claimant had not shown it suffered any prejudice in advancing its recent contention that the interruption should be disregarded under section 15(6).
The judge considered section 15(6) is concerned with a case where statutory prohibition on access to the land is imposed on members of the public. The case of an area closed to the public by order under an enactment during an outbreak of foot and mouth disease, such as in accordance with DEFRA’s advice in relation to the interpretation of the Commons Act 2006, provides an example of such a statutory prohibition. Such a prohibition means the public cannot use the land lawfully for lawful sports and pastimes. But the prohibition is one on access by the public. It would not require any period in which the land could not lawfully be used
Page 53 of 92 for such purposes, such as by byelaws or an order made under any enactment, to be disregarded. It is not concerned with cases where works are carried out which in fact prevent any use by the public. Were it otherwise it would create an inexplicable distinction between the legal effect of works carried out by a private landowner and the legal effect of works carried out by a public authority on its own land which it can only do in the exercise of some statutory function. In each case the interruption may be the same but the legal result would be different for no apparent reason.
In relation to issue (iii), the investigative duty, the judge considered that a registration authority is entitled to assume that normally the evidence it obtains from the applicant and any objectors will be sufficient to provide it with sufficient information upon which it may reasonably determine the application, particularly if it has held a public inquiry. A claimant who contends that an authority should have made further investigations has to show that the authority failed to take steps which any reasonable authority would have done in order to obtain the information or evidence without which no reasonable authority could have made the decision it did. The inspector had noted there had been no want of trying by the parties to the inquiry to obtain relevant information with limited success. In his judgement, the registration authority was under no obligation to replicate what the parties had already done. This also applied to making enquiries about the powers under which the National Rivers Authority carried out its engineering works in 1993. This ground of complaint also failed.
A copy of the judgement is at Appendix 4.
Mr Naylor was ordered to pay £3000 towards the county council’s costs and asked for 3 months to pay instead of the usual 28 days which was accepted meaning payment was due by 28 October 2014.
Mr Naylor is seeking permission to appeal to the Court of Appeal.
4. CONCLUSION
In dismissing the claim the judge concluded that the committee were entitled to conclude that the public’s use of the land had been ‘by right’ rather than ‘as of right’ during the 20 year period claimed. In addition, and in any event, they were also entitled to conclude that the public’s use for that purpose had not continued throughout that period but had been interrupted in 1993.
As Mr Naylor has applied for the matter to be appealed to the Court of Appeal the outcome of his current application will be subject to a further report.
LOCAL MEMBER NOTIFICATION Frinton & Walton
Ref: Jacqueline Millward CAVG/63
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Neutral Citation Number: [2014] EWHC 2560 (Admin)
Case No: CO/6606/2013 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION PLANNING COURT
Royal Courts of Justice Strand, London, WC2A 2LL
Date: 28/07/2014
Before :
JOHN HOWELL QC Sitting as a Deputy High Court Judge ------Between :
Richard Naylor Claimant - and - Essex County Council Defendant -and- (1) Silverbrook Estates Ltd (2) Diana Humphreys Interested (3) Tendring District Coucnil Parties
------
Dr Ashley Bowes (instructed by KSN Solicitors) for the Claimant Alan Evans (instructed by Essex Legal Services) for the Defendant
Hearing dates: 3 July 2014 ------Approved Judgment I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
......
JOHN HOWELL QC
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JOHN HOWELL QC Naylor v Essex CC Approved Judgment
John Howell QC :
1. This claim for judicial review impugns the decision of the Development and Regulation Committee of Essex County Council, taken on February 22nd 2013, not to register an area of land in Walton on the Naze as a Town or Village Green pursuant to section 15(2)(a) of the Commons Act 2006 (“the 2006 Act”). The County Council is the relevant registration authority for its area for that purpose under the 2006 Act.
2. The Claimant, Mr Richard Naylor, lives near the relevant land and he has used it for recreational purposes. He was given permission to bring this claim by His Honour Judge Anthony Thornton QC, sitting as a Deputy High Court Judge, in a reserved judgment handed down in this Court on March 7th 2014: see R (Naylor) v Essex County Council and others [2014] EWHC 90 (Admin).
3. The Claimant seeks to impugn the decision not to register the relevant land on the basis (i) that the Committee erred in concluding, on the basis of the information it had, that the public’s use of it for lawful sports and pastimes had been “by right” during the 20 year period before the application for its registration was made, rather than being “as of right” throughout that period (as section 15(2)(a) of the 2006 Act requires); (ii) that, in any event, it failed in the duty, which it had in the circumstances, to investigate before taking the decision impugned the basis upon which Tendring District Council, the Third Interested Party, (“the District Council”) had been maintaining and managing the relevant land during that period; and (iii) that it further erred in concluding that the relevant land had not been continuously used without interruption for lawful sports and pastimes in that period.
4. Since this is a claim for judicial review of a decision vested by Parliament in the registration authority, subject to issues of law or of rationality, the factual issues were for the registration authority to resolve: see eg R (Barkas) v North Yorkshire County Council and another [2014] UKSC 31, [2014] 2 WLR 1360, (“Barkas”) per Lord Carnwath JSC at [70].
BACKGROUND
5. The application to register the relevant land as a Town or Village Green was made to the County Council by Ms Diana Humphreys, the Second Interested Party, on April 11th 2011. The owner of the relevant land, Silverbrook Estates Limited, the First Interested Party, objected to its registration.
6. The County Council accordingly arranged for Mr Alun Alesbury, MA, Barrister at Law, (“the Inspector”) to hold a non-statutory public inquiry into the application. This he did on November 6th, 7th and 8th 2012. The Inspector produced a report, dated January 11th 20131, that summarises and discusses the evidence and submissions to him and that contains his findings. He recommended that the application for registration should be rejected.
7. The County Council then gave Ms Humphreys and Silverbrook Estates Limited an opportunity to comment on the Inspector’s conclusions. Ms Humphreys took
1 The report is referred to as IR in the footnotes to this judgment. Page 66 of 92
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advantage of that opportunity to make further representations. The Inspector commented on them on February 1st 20132.
8. The Inspector’s Report, Ms Humphrey’s further representations and his comments in response to them them were all attached to a report (which also summarised those documents) which the County Solicitor made to the Development and Regulation Committee. The County Solicitor recommended the Committee to accept the Inspector’s analysis and recommendation to reject the application for registration of the relevant land as a town or village green for the reasons that the Inspector had given. The Committee did so in the decision which the Claimant impugns.
9. Section 15 of the 2006 Act provides (so far as relevant) that
“(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2)...applies.
(2) This subsection applies where
(a) 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; and
(b) they continue to do so at the time of the application.
...
(6) In determining the period of 20 years referred to in subsections (2)(a)..., there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.
(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied
(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and
(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land "as of right".
10. In her application for its registration Ms Humphreys described the relevant land as “the triangle of grass at the town end of Mill Lane, and the adjoining sea wall to the east of Mill Lane from the drainage ditch (south) to the flood gate (north)”. The main, southern (triangular-shaped) part of the site is a grassy, relatively flat area open to the
2 The Inspector’s additional comments are referred to in these footnotes as IC. Page 67 of 92
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carriageway of Mill Lane on its west side, with a small drop to the level of Mill Lane for some of its length. The other part of the site, on the north-east side of the triangular area, and then running for some distance further northwards, is a relatively steep-sided sea defence bank with a pedestrian path running along its top, although the path is not one which is officially recorded or recognised as such. Beyond the bank, outside the relevant land, is Walton Mere. It appears that a sea wall or bank was first constructed on the relevant land in 1954 following flooding in 1953.
11. The Inspector found that, with the exception of one period, during the relevant period of 20 years before the application for its registration was made, the relevant land had been clearly open and generally unfenced and that it had been well maintained and tended by the District Council as some sort of publicly available open space or recreation area3. The exception was that, for a considerable period during the summer of 1993, there were substantial civil engineering works, relating to the construction of a new higher sea wall or bank, which had effectively created that part of the land in the form that it now has. These works had affected the whole of that part of the relevant land and at least a substantial part of the larger, flatter triangular area in the southern part of the site4.
12. The Inspector found that there was an important distinction between two parts of the relevant land in terms of their use. In his view there was no substantial evidence that the sea wall or bank running along (but within) the entire eastern boundary of the site had ever been used to a material extent for lawful sports and pastimes in a way that would warrant registration5. By contrast, he found that, for nearly all of the relevant 20 year period, there had been a sufficiently continuous use of the relatively flat grassy triangle in the south for lawful sports and pastimes by a significant number of the inhabitants of the neighbourhood to support its registration6.
13. The Inspector found, however, that the relevant land did not qualify for registration for two reasons7.
14. First he found that the use made by local inhabitants had been “by right” during the relevant 20 year period rather than being “as of right” as required by section 15(2)(a) of the 2006 Act.
15. The Inspector found that the relevant land had been owned by Mr Ted Carter for a long time (apparently from 1945) until his death in 2004 and then by his executors and heirs until May 2009 when it was sold by them to Silverbrook Estates Limited8. But, except for the period of the works in 1993, the land had been managed and maintained by the District Council, at least from 1989-90 (when it appears to have been included in a grounds maintenance contract let by the District Council), as if it were an area of public open space or parkland available and open for all to use9. The Inspector found that it was probable that there had been a much longer term
3 see [IR 11.3], [IC3, IC4]. 4 see [IR11.4 and IR11.5]. 5 see [IR11.20- IR11.24]. 6 see [IR 11.25 – IR 11.33] and [IR 11.34 – IR 11.42]. 7 see [IR11.73]. 8 see [IR 11.48]. 9 see [IR 11.47], [IR 7.118], [IR 9.108]. Page 68 of 92
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arrangement for its management and maintenance going back to before 1974 (when, on local government reorganisation under the Local Government Act 1972, the District Council replaced Frinton and Walton Urban District Council)10.
16. In the Inspector’s view it had to be assumed, unless there was clear evidence to the contrary, that, what the District Council had done, it had done lawfully and that it could not have done so lawfully other than in discharge of some statutory function11. He had previously stated that it was “highly probable” that the relevant land was maintained (as it was) by the Council “precisely for the purpose of encouraging members of the public, including local people as well as visitors to the town, to use it for things which would fall into the category of ‘lawful sports and pastimes’”12. In his view it seemed clear that this was not the result of some mistaken belief on the District Council’s part that it owned the relevant land13. He found that the most probable explanation was that the District Council had managed and controlled the land under sections 9 and 10 of the Open Spaces Act 1906 (“the 1906 Act”) or section 164 of the Public Health Act 1875 (“the 1875 Act”) and that, when a local authority does so, the public have a right to use such land as they had done in this case14. They were thus using the relevant land “by right” rather than “as of right”.
17. These sections of the 1906 Act provide as follows:
“9. A local authority may, subject to the provisions of this Act,-
(a) acquire by agreement and for valuable or nominal consideration by way of payment in gross, or of rent, or otherwise, or without any consideration, the freehold of, or any term of years or other limited estate or interest in, or any right or easement in or over, any open space or burial ground, whether situate within the district of the local authority or not; and
(b) undertake the entire or partial care, management, and control of any such open space or burial ground, whether any interest in the soil is transferred to the local authority or not; and
(c) for the purposes aforesaid, make any agreement with any person authorised by this Act or otherwise to convey or to agree with reference to any open space or burial ground, or with any other persons interested therein.
10. A local authority who have acquired any estate or interest in or control over any open space or burial ground under this Act shall, subject to any conditions under which the estate, interest, or control was so acquired -
10 see [IR 11.51], [IR 11.47], [IR 2.11]. 11 see [IR 11.52]. 12 see [IR 11.26]. 13 see [IR 11.52]. 14 see [IR 11.53 - 11.58]. Page 69 of 92
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(a) hold and administer the open space or burial ground in trust to allow, and with a view to, the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation and for no other purpose: and
(b) maintain and keep the open space or burial ground in a good and decent state
and may inclose it or keep it inclosed with proper railings and gates, and may drain, level, lay out, turf, plant, ornament, light, provide with seats, and otherwise improve it, and do all such works and things and employ such officers and servants as may be requisite for the purposes aforesaid or any of them.”
18. Section 164 of the 1875 Act provides that:
“Any local authority may purchase or take on lease lay out plant improve and maintain lands for the purpose of being used as public walks or pleasure grounds, and may support or contribute to the support of public walks or pleasure grounds provided by any person whomsoever.
Any local authority may make byelaws for the regulation of any such public walk or pleasure ground, and may by such byelaws provide for the removal from such public walk or pleasure ground of any person infringing any such byelaw by any officer of the [local authority] or constable.”
19. Secondly, the Inspector found that the use of the relevant land for lawful sports and pastimes had not continued throughout the period of 20 years before the date of the application. He found that there had been a period of interruption of over some 3 months in the summer of 1993 when the major works took place for the replacement and heightening of the sea wall or bank. Although some part of the grassy area may not have been affected, it was unclear in his view how much might not have been15. The Inspector found that, when the works were not being actively carried out, members of the public interested in that sort of thing could probably have wandered onto the site of the works to look at them. But he did not accept that, during the period of these works, the site was available for local people to use for lawful sports and pastimes and he found that this was a substantial interruption that could not reasonably be regarded as de minimis or so temporary as to be of no significance16. Accordingly the Inspector found that the evidence did not show that there had been a continuous uninterrupted use of the application site for lawful sports and pastimes for the period of 20 years as required by section 15(2)(a) of the 2006 Act17.
15 see [IR 11.62-11.64]. 16 see [IR.11.65 - 11.66]. 17 see [IR 11.66 and 11.68]. Page 70 of 92
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WHETHER THE USE OF THE RELEVANT LAND WAS MADE “AS OF RIGHT”
20. On behalf of the Claimant, Dr Ashley Bowes contended that the Inspector had misdirected himself in law when considering whether the use by the public of the relevant land was “by right” and that the Committee, which adopted his reasoning, likewise did so. Dr Bowes supported this contention broadly on two main grounds. The first was that the Inspector had misdirected himself in law when use is “by right”. The second was that the Inspector had misdirected himself in various respects in concluding that the District Council had been acting under the 1906 Act or the 1875 Act.
(a) when a use made of land is “as of right”
21. Registration of a town of village green under section 15(2)(a) of the 2006 Act depends on the acquiescence or toleration by the landowner of a significant number of inhabitants of any locality or neighbourhood within in it indulging in lawful sports and pastimes on his land over a 20 year period without having any right to do so but as if they had. The legal meaning of the expression “as of right” in that provision is thus effectively the antithesis of “by right”. For example, in an ordinary case, if a person uses privately owned land as if he has a right to do so but his use is not permitted by its owner, his use is “as of right”. But, if his use has been permitted by the landowner, his use is rightful: it is “by right”: see eg Barkas supra per Lord Neuberger of Abbotsbury PSC at [14].
22. It is sometimes said that use “as of right” means “nec vi, nec clam, nec precario” (not by force, nor stealth nor permission). Dr Bowes and Mr Alan Evans, who appeared on behalf of the County Council, were not agreed whether a use “by right” was the same as one “precario” and whether the Inspector was drawing any distinction between them. Plainly a use “precario” is a use “by right”: see eg Barkas supra per Lord Neuberger at [29]. But a use “by right” need not necessarily be one “precario”, however, if that is taken to refer only to a permission granted by the landowner which is communicated to the person having it and not one arising in any other way, for example by virtue of an enactment, as Richards LJ assumed in R (Newhaven Port & Properties Ltd) v East Sussex County Council [2013] EWCA Civ 276, [2014] QB 186 at [7], [14], [79] and [82]; cf also R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11, [2010] 2 AC 70, (“Lewis”) per Lord Rodger at [87]. There appears no good reason, however, to say that a person’s use of the land is not by permission when that permission is derived from an enactment, such as section 2 of the Countryside and Rights of Way Act 2000 which gives anyone a right to enter and remain on “any access land” (such as mountain, moor or heath) for the purpose of open-air recreation. As Lord Neuberger said in Barkas at [27], “as against the owner (or more accurately, the person entitled to possession), third parties on the land either have the right to be there and to do what they are doing, or they do not. If they have a right in some shape or form (whether in private or public law), then they are permitted to be there, and if they have no right to be there, then they are trespassers” (emphasis added). Less easy to reconcile with the formula, “nec vi, nec clam, nec precario”, however, are cases in which there may be a constraint on the landowner’s capacity to do something to stop the use of that owner’s land by others when it occurs. Nonetheless, in Barkas supra at [51], Lord Carnwath treated the public’s use of the land as being one ““by licence” (or “precario”)” given the public law constraints on the local authority’s ability to cease using the land for public recreation. In my Page 71 of 92
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judgment, however, for the reasons I shall give below, there is no need to resolve such terminological questions for the purpose of determining this case.
23. In all cases, however, what is crucial if continuous uninterrupted use over the relevant 20 year period is not to give rise to a town or village green is that there is a reason why it would not have been reasonable to expect the owner to resist the exercise by the members of the public of any right to use the land for the purpose of lawful sports and pastimes which they were apparently asserting, since the prescription of such public rights depends on acquiescence by a person in a position to resist them: see R v Oxfordshire County Council ex p Sunningwell CC [2000] 1 AC 335 per Lord Hoffmann at pp 350h-351c, 353h-354b.
24. In this case the Inspector had available to him the decision of the Court of Appeal, but not that of the Supreme Court, in Barkas. He considered that it was clear from that decision “that where a local authority provides land for public [recreational] use under either of the 1906 or 1875 Acts...,use of that land by the (local) public will be ‘by right’ not ‘as of right’...the same principle must apply to land belonging to someone else, which is managed or controlled by a Council” under those Acts18.
25. Dr Bowes submitted that the Inspector had been wrong in law to “extend” this “by right” principle to land in which a local authority does not hold a legal estate. He submitted that, when a local authority makes its own land available for the purpose of public recreation, it is not free, unlike a private landowner, to cease making it available for, or to prevent members of the public using it for, that purpose lawfully on a whim, as Sullivan LJ pointed out in Barkas in the Court of Appeal: see [2012] EWCA Civ 1373, [2013] 1 WLR 1521, at [43]. As Lord Neuberger put it in Barkas at [24]:
“where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use (whether for a limited period or an indefinite period), it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land "as of right", simply because the authority has not objected to their using the land.... It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their allocation decision if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights.”
26. Dr Bowes submitted that, when a local authority does not itself hold an estate in land, it has no power to grant local inhabitants a right to use the land or an ability to exclude them from it. In this case the District Council may itself have had, at most, a licence from the landowner. It was thus the landowner who retained the exclusive ability to permit, or to prevent, others using the relevant land. No claim in public law could have been sustained against the District Council had the landowner prevented
18 see [IR 11.55-11.56]. Page 72 of 92
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members of the public from using it. Thus, in the absence of a deed of trust in writing from the landowner declaring the relevant land to be held in trust for public recreation, there was no basis for the Inspector to conclude that its use by local inhabitants was “by right”. Dr Bowes submitted, therefore, that the Inspector had failed to ask himself the relevant question, namely whether the landowner’s discretion to put a stop to the use of the relevant land for lawful sports and pastimes was constrained like that of a local authority which owns public open space.
27. In my judgment Dr Bowes’ submissions fail to engage with the nature of the arrangement that the landowner must be taken to have had with the District Council in this case. As the Inspector correctly pointed out, it must be assumed, unless there is evidence to the contrary, that the District Council did what it did properly and lawfully in pursuance of some statutory power enabling it to do so: see eg on ‘the presumption of regularity’ Calder Gravel Ltd v Kirklees MBC (1989) 60 P&CR 322 per Sir Nicholas Browne-Wilkinson VC at pp338-339. That will have involved the District Council having an arrangement with the landowner that the authority should maintain and manage the relevant land (as it did) for the public to enjoy as an open space, something the Inspector thought that the District Council had the power to do under the 1906 and 1875 Acts. That arrangement may have been one terminable on notice, or on reasonable notice, or at some other time, by the landowner or by the District Council. But, for present purposes that it is irrelevant. While such an arrangement subsisted, the landowner had plainly permitted, or had at least authorised the District Council to permit, the public to use the relevant land for recreational purposes.
28. Dr Bowes submitted, however, that, when it is said that the landowner has permitted the use of his land by local inhabitants, such permission needs to be communicated to them. He referred in support of that proposition to R (Newhaven Port & Properties Ltd) v East Sussex County Council supra. In his judgment in that case Richards LJ distinguished a case when a use may be “by right” by virtue (for example) of an express enactment, when the right need not be communicated during the relevant twenty year period to local inhabitants who have it, from a “use precario”, that is by permission of the landowner. In the latter type of case Richards LJ (with whom MacFarlane LJ agreed) considered that there must be some overt act communicating permission in that period: see [69]-[87]. Accordingly, he and MacFarlane LJ found that an implied permission contained in byelaws governing the relevant land in that case (which had been made by the landowner) had not made the public’s use of it “by right”, as the byelaws had not been communicated to the local inhabitants using it during the 20 year period before the date of the application for registration (although the byelaws had been properly publicised when promulgated). Lewison LJ (dissenting) regarded the public’s use of the land as one “by right” precisely because it was permitted (by implication) in a valid local law.
29. There is no doubt that permission to use land may be communicated by conduct. As Lord Bingham stated in R (Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889, at [5], “a landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants’ use of the land is pursuant to his permission.” In that case the registration authority considered that the use had been “by right”, by virtue of an implied licence, as the Development Corporation, the Commission for New Towns and then the City Council
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had maintained the land in question by keeping the grass cut and maintaining perimeter seating and it would have been perceived as a recreational area provided for the use by the public for recreation. This reasoning was regarded by the Supreme Court in Barkas supra as “unimpeachable in common sense and in law” (when finding that the decision in that case by the Appellate Committee was wrong): see per Lord Carnwath, with whom the other members of the Supreme Court agreed, at [73]- [74]; cf also at [85].
30. In this case the District Council did at least as much by way of management and maintenance as the public authorities did in Beresford. Not only (as the Inspector found) did it mow the grass regularly, it also regularly picked up litter from the relevant land and it erected and replaced a “dog poo bin” attached to a post it had erected there19. The Inspector found that the relevant land had been maintained by the District Council “as something which looked like, and was de facto available as, a piece of public open space or park land, or indeed a town or village green” and that “it was unsurprising….that several witnesses for the Applicant said that (until recent times) they had believed that the land was in fact owned by the District Council, as some kind of common or public amenity land”20.
31. In this case, therefore, it would appear to follow from the Inspector’s findings of fact that permission to use the relevant land, whether granted by the landowner or by the District Council pursuant to the arrangement which it is to be taken it had with the landowner, was communicated in the relevant period to the public using the land by such conduct.
32. Does the fact that in Beresford the land was always owned by a public authority, whereas in this case the relevant land was managed and maintained by the District Council pursuant to an arrangement with the landowner, make any difference? As I have indicated, Dr Bowes submitted that it does.
33. In analysing the decision in Beresford in Barkas Lord Carnwath stated that the judge at first instance in that case had, correctly, attached importance to the fact of public ownership as plainly being a relevant consideration: see at [74]. Similarly Lord Neuberger thought that, in Barkas itself, the public had “a public right, or a publicly based licence” (which the local authority could have withdrawn), which would be enforceable in public (rather than by private) law proceedings, to use the land in that case for recreational purposes (which the authority held for housing purposes) so long as it was allocated or devoted to use as a recreation ground by the authority. The local authority could not lawfully object to that use consistently with its allocation decision: see at [20]-[24]. Nor, as Sullivan LJ had pointed out in the Court of Appeal in that case, as Dr Bowes emphasised, could the authority have altered its use or withdrawn any such licence “on a whim”, unlike a private landowner. It was constrained in what it could lawfully do.
34. Neither of those two cases, however, dealt with a situation (as in this case) in which a public authority was maintaining and managing land vested in a private landowner for public recreational use under an arrangement with that landowner.
19 see [IR 11.51], [IR 11.47]. 20 see [IR 11.48] and [11.49]. Page 74 of 92
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35. Parliament has explicitly provided, for example, in the 1906 Act, that a local authority may manage and maintain land vested in others as a public open space by agreement (including land vested in, or held for the benefit of, private landowners). Under section 2(1)(c) of that Act, those in whom the care and management of an open space has been vested by enactment with a view to its preservation and regulation as a garden or open space may (with the consent of the owner or occupiers of any houses fronting it or liable to be rated for its maintenance) “make any agreement with any local authority for the opening to the public of the open space and the care thereof by the local authority, either at all times or at any specified time or times”. Similarly, under section 5(1)(c) of the 1906 Act, when any open space is subject to rights of user for exercise and recreation in owners or occupiers, or both, of any houses round or near it, its owner (with their consent) may “make an agreement with any local authority for the opening to the public of the open space and the care and management thereof by the local authority either at all times or at any specified times”. Likewise, under section 6 of that Act, the owner of any disused burial ground may “make any agreement with any local authority for the purpose of giving the public access to the burial ground, and preserving the same as an open space accessible to the public and under the control of the local authority, and for the purpose of improving and laying out the same”. Section 9(1)(c) of the 1906 Act (quoted in paragraph [17] above) authorises the local authority to make any agreement with persons authorised to do so under those provisions, and indeed also with any persons who may otherwise be able to make such agreements with respect to any open space or burial ground, under which the local authority may undertake the entire or partial care, management and control of such open space or burial ground, whether or not any interest in the soil is transferred to the local authority.
36. When a local authority has acquired any control over an open space or burial ground under the 1906 Act, even if they have not acquired any estate or interest in it, then, subject to any conditions under which such control was acquired, in accordance with section 10 of that Act (quoted in paragraph [17] above), it must hold and administer the land in trust “to allow, and with a view to, the enjoyment thereof by the public as an open space...and for no other purpose”. But in my judgment, when a local authority has acquired a right to manage or control land for the purpose of allowing the public to use it for recreational purposes (whether under the 1906 Act or some other enactment), it could not lawfully object to the public so using it (other than in the proper management of the land for that purpose) whilst its rights subsist. It matters not whether section 10 of the 1906 Act or anything similar is applicable. Such rights as it has acquired are only held for the purpose of, and are limited to, allowing the public to use such land for recreational purposes and it has no power or rights to exercise for any other purpose.
37. In this respect such a case is stronger than was the case in Barkas. There the land was originally acquired as a site for the erection of houses and it was accordingly held under Part II of the Housing Act 1985 for the provision of housing accommodation. Such land could be used in addition for a number of ancillary purposes (without the need for any appropriation) including the provision and maintenance of “recreation grounds”: see at [4] and [5]. Public recreation was not the only purpose, therefore, for to which the land could have been lawfully put. In that case the Supreme Court regarded the “public right or publicly based licence” as continuing so long as the Council continued to devote the land to that purpose.
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38. In that case, there was also no statutory trust such as section 10 of the 1906 Act imposes. As Lord Neuberger said in Barkas (at [45]), “once land is statutorily held by a council for the purpose of public recreation, it is hard to see why members of the public only have the right to use the land for that purpose if there is a super-added trust to that effect.” Indeed there is no such explicit statutorily super-added trust where land is held for the purpose of section 164 of the 1875 Act in respect of which the public have been recognised to have similar rights of access for recreational purposes: see eg per Sullivan LJ in the Court of Appeal in Barkas supra at [27]-[34]. It is equally hard to see, particularly given the development of public law since 1906, why members of the public should only have a right to use land maintained and managed by a local authority for recreational purposes under an arrangement with the landowner for that purpose if there is a super-added statutory trust.
39. In my judgment, therefore, it makes no difference to the right which the public has to use the land that it is made available for public recreational use by a local authority by virtue of an arrangement it has with the landowner which does not give the authority itself any estate or legal interest in that land. While such an arrangement subsists, the landowner has permitted (or has at least authorised the local authority to permit) the public to use the relevant land for recreational purposes. The local authority is empowered to permit such use by virtue of the enactment under which it acquires its rights for that purpose (as being consequential thereto). Permission to use the land for recreational purposes is communicated to the public (if that is required) by the local authority making the land available for use for such recreational purposes. While such an arrangement subsists and the land is made available for use by the public for recreational purposes by the local authority pursuant to it, neither the landowner nor the authority could assert that a member of the public using it for such purposes was a trespasser. Members of the public would not be using it “as of right”; they would be using it “by right” for a purpose for which they had been lawfully invited to use it. Use by members of the public would be “precario” in the narrower sense of permission from the landowner (or from a person the landowner had authorised to give it) and “by right” to the extent that that term may be wider.
40. In terms of acquiescence, given an arrangement between a landowner and a local authority that the authority will maintain and manage land for public recreation, it would not have been reasonable to expect the owner to resist the exercise by the members of the public of any right to use the land for the purpose of lawful sports and pastimes when the authority made that land available for such use while that arrangement subsisted. Nor could the authority have done so in that period (other than in the proper management of the land for that purpose) when its rights in respect of that land were held for purpose of making it available for public recreation.
41. In my judgment any other conclusion would be contrary to the public interest in the provision of recreational facilities for the benefit of the public. The provisions of the 1906 Act, to which I have referred, plainly indicate that Parliament thought that it was in the public interest that public enjoyment of open spaces should be facilitated by agreements under which local authorities maintained and managed them even if the local authority acquired no estate or interest in them. Those persons who may otherwise be prepared to enter into such agreements with local authorities may be deterred from doing so, however, if the public may obtain indefeasible rights
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precluding any subsequent beneficial or alternative use by such persons (or by any heir such persons may have) after 20 years.
42. I do not accept Dr Bowes’ submission, therefore, that the Inspector unlawfully failed to ask himself the question whether the landowner’s discretion to put a stop to the use of the relevant land for lawful sports and pastimes was constrained. The relevant question was not whether the landowner could have brought any arrangements with the District Council to an end. The landowner may have been able to do so (on notice or on reasonable notice) without constraint. The relevant question was whether, whenever members of the public used the relevant land for lawful sports and pastimes in the 20 year period before the date of the application for registration, they did so as trespassers. While the arrangement with the District Council subsisted, the landowner could not have contended that any member of the public using the land was a trespasser, any more than any landowner could do in respect of any person to whom he had given a revocable permission to use it for that purpose. Members of the public could use for it for recreational purposes “by right”.
(b) under what powers (if any) was the District Council acting
43. Dr Bowes contended that the Inspector erred in finding that the District Council had been acting under the 1906 Act or the 1875 Act. If that authority was acting under any power, he submitted that it would have been section 111 of the Local Government Act 1972 and, after 2000, possibly section 2 of the Local Government Act 2000 as well.
i. the 1906 Act
44. I have set out sections 9 and 10 of the 1906 Act in paragraph [17] above. Dr Bowes submitted that a local authority may only act under section 9(b) of that Act if it has first acquired an interest in an open space under section 9(a), which it had not done in this case. In any event, so he submitted, the Inspector had wrongly conflated mere management of the relevant land with its “control” and that the Inspector would have been irrational to have regarded what the District Council did as manifesting “control” of the relevant land. Without “control”, which, so he submitted, requires the authority to hold an estate in land (since, without it, the authority cannot exclude the world from the land), the statutory trust under section 10 was inapplicable.
45. In my judgment a local authority may act under section 9(b) of the 1906 Act even if it has not acquired any interest in an open space under section 9(a) of it. The open spaces and burial grounds in respect of which a local authority may acquire an estate, interest, right or easement under section 9(a) of the 1906 Act are ones which are situate not only within its district but also beyond. A local authority may undertake the entire or partial care, management and control of any such open space or burial ground under section 9(b) of that Act, whether or not it has acquired any interest in it. The authority is not required to acquire any estate, interest, right or easement in it before it may undertake such things. It may make an agreement for those purposes under section 9(c) with any persons who may themselves be authorised to reach such an agreement with the authority under the earlier provisions of the 1906 Act (to which I have referred in paragraph [35] above) or who are otherwise able to make such
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agreements with it21. Were it otherwise, the 1906 Act would have earlier authorised others (who may have needed such statutory authority) to enter into agreements with a local authority for the management or control of land in order for it to be opened up to the public for its enjoyment of it without conferring the necessary power on the local authority to enter into such agreements with them.
46. The Inspector found that the District Council “managed and controlled” the relevant land under sections 9 and 10 of the 1906 Act22. Dr Bowes contends that the Inspector conflated “management” with “control” and that it was irrational for him to regard the District Council as having “control” of the relevant land given that he had only found that they regularly mowed the grass, picked up litter and provided “dog poo” bins. “Control”, so he submitted, requires the local authority to have an interest in the land.
47. It does not appear that any argument was addressed to the Inspector that the District Council exercised powers only of “management”, not also of “control”. Had it been, the Inspector might have considered, for example, whether any significance should have been attached to the evidence (that he had23) that, since 1988, a local security firm had been asked by the District Council to check whether the relevant land was being used by travellers and what else a local authority having control of such a small area of land might have been expected to do given its nature.
48. I do not accept that, as Dr Bowes submitted, “control” for the purpose of the 1906 Act requires the authority to have acquired any estate or interest in the land. It is plain from section 10 of the 1906 Act itself that a local authority may have obtained “control” over an open space or burial ground, even if it has not acquired any estate or in it. They are potential alternatives. Moreover the authority is empowered under section 9(b) of that Act to undertake the entire or partial care, management and control over an open space or burial ground “whether any interest in the soil is transferred to the local authority or not”.
49. A more difficult question in my judgment, however, is whether or not there is in fact any difference between “management” of land and its “control” under the 1906 Act and, if there is, in what it consists. As I explained in paragraph [35] above, others are empowered by the 1906 Act to make agreements with a local authority for the “care and management” by it of an open space or burial ground (under sections 2(1)(c) and 5(1)(c) of the Act), and for such land to be “under the control of the local authority” (under section 6 of the Act), without transferring any estate or interest to the authority. It may appear, therefore, that a distinction is thus drawn elsewhere in the Act between “care and management” and “control” over land: see also section 15(1) and (2). That may appear to be reinforced by the power which the authority has (by virtue of section 9(b) and (c) of the Act) to undertake the entire or partial care, management and control of an open space or burial ground pursuant to agreements that others are empowered to make with it under those provisions. On the other hand, if there is such a distinction to be drawn on some basis, what would distinguish management from “entire or partial….control” of any land for the purpose of section 9(b) is by no means
21 This construction is consistent with the terms of section 5 of the Metropolitan Open Spaces Act 1881, as extended by section 5 of the Open Spaces Act 1887 and section 6 of the Open Spaces Act 1890, which section 9 of the 1906 Act consolidated. 22 See [IR 11.53] and [IR 11.58]. 23 see IR[9.39], [[9.41], [9.42], [9.46], [9.49] and [9.50]. Page 78 of 92
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self-evident. Moreover the obligations imposed on a local authority by section 10 will not apply to land in respect of which an agreement which has been made with the local authority for its care and management (for example under section 5(1)(c) of the 1906 Act).
50. For present purposes, however, it is not necessary to resolve this issue. In my judgment it is sufficient that any agreement which the District Council had was one for the care and management of the relevant land under section 9(b), even if it did not give the District Council “control” of it. In my judgment section 9(b) permits a local authority to make such agreement with (for example) those authorised to make such an agreement with the authority under sections 2(1)(c) and 5(1)(c) of the Act. The reason why such an agreement is sufficient (if any agreement was made under section 9 and the relevant land was made available to the public pursuant to it) is that the applicability of a “super-added” trust (such as that which arises under section 10 if the authority has acquired control) is unnecessary: see paragraph [38] above. In this case the Inspector himself thought, in my judgment correctly, that the principle that the public’s use will be “by right” when a local authority provides land for public use under the 1906 Act applied to “land belonging to someone else which is managed or controlled by a Council under section 9 of the 1906 Act”24 (emphasis added). Dr Bowes did not submit that the Inspector was not entitled to find that the land had been managed as an open space by the District Council for the enjoyment of the public. Accordingly Dr Bowes’ submissions that the Inspector conflated “management” with “control” and that he could not rationally have found that the relevant land was under the “control” of the Council, even if well founded, do not undermine the Inspector’s basic conclusion that the District Council had managed the land under the 1906 Act and that, while that was so, the public’s use had been “by right”.
ii. section 164 of the 1875 Act
51. I have set out section 164 of the 1875 Act in paragraph [18] above. The Inspector thought that the powers conferred by this section were arguably relevant as an alternative explanation and justification for the actions of the District Council over a prolonged period in relation to the management and maintenance of the relevant land25 and, although he thought the “most probable explanation” of its actions was that the District Council managed the land under the 1906 Act, he was “fortified by [its ability] to do much the same thing under section 164 of the Public Health Act 1875”26. Unsurprisingly Mr Evans submitted that, even if (for some reason) the District Council could not lawfully have done what it did under the 1906 Act, it could have done so under this section.
52. Dr Bowes submitted that the power to maintain land for the purpose of being used for public walks and pleasure grounds only arises under section 164 of the 1875 Act if the authority has purchased or taken the land in question on lease.
53. In my judgment that may well be too narrow a construction of this section. Such a construction would not enable the powers to lay out, plant improve and maintain land for the purpose of being used as public walks and pleasure grounds (which a local
24 see [IR 11.56]. 25 see [IR 11.54]. 26 see [IR 11.58]. Page 79 of 92
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authority would otherwise have) to be used in respect of land not so purchased or leased under this section but which were, for example, previously acquired under other powers for a purpose for which it is no longer required. I can see no reason why such powers should be not be available if the authority appropriates such land to be held for the purpose of being used as public walks and pleasure grounds under section 164 of the 1875 Act. Nor is there any ostensible reason why such powers should not be exercised in respect of land that an authority may be able to manage and maintain by virtue of an agreement with its owner which does not give it an estate or interest in the land.
54. Given that I did not receive full argument on this point and that the Inspector was entitled to explain the District Council’s actions by virtue of its exercise of the powers it had under the 1906 Act, however, I do not need, nor do I propose, to reach any conclusion on this point.
iii. other powers that the District Council may have had and used
55. It does not appear that the Inspector was invited to find that the District Council’s actions may have been explicable on some legal basis other than the powers it had under the 1906 and 1875 Acts27. Dr Bowes submitted, however, that, if that authority was acting under any power, it would have been section 111 of the Local Government Act 1972 and, after 2000, possibly section 2 of the Local Government Act 2000 as well.
56. In my judgment this submission lacked any basis. District councils only have such “functions” as are “vested in them” by enactment: see section 2 of the Local Government Act 1972. By virtue of section 111(1) of the 1972 Act,
“Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.”
As Lord Templeman stated in Hazell v Hammersmith LBC [1992] 1 AC 1 at p29, “in section 111 the word "functions" embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it.” Thus, as Woolf LJ put it in the Divisional Court in that case ([1990] 2 QB 697 at p723), in a passage subsequently endorsed by the Appellate Committee in McCarthy & Stone (Developments) Ltd v Richmond upon Thames LBC [1992] 2 AC 48 at p69,
“the subsection does not of itself, independently of any other provision, authorise the performance of any activity. It only confers, as the sidenote to the section indicates, a subsidiary power. A subsidiary power which authorises an activity where some other statutory provision has vested a specific function or
27 see [IR 11.58] and the Further Representations by the Applicant. Page 80 of 92
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functions in the council and the performance of the activity will assist in some way in the discharge of that function or those functions."
57. Accordingly it is not sufficient to refer to section 111(1) of the 1972 Act alone to identify the vires that a local authority may have for any activity. It is also necessary to refer to some other statutory provision or provisions in conjunction with which section 111(1) is said to authorise that activity. Dr Bowes identified none in the relevant 20 year period prior to the application for registration of the relevant land before the enactment of the power that local authorities were given in section 2 of the Local Government Act 2000 to do anything for the economic, social or environmental well-being of their areas. Thus he failed to identify any alternative explanation for the legal basis of the District Council’s activities in the relevant period before section 2 of the Local Government Act 2000 came into force.
58. Even if Dr Bowes’ submission had had a better basis, however, it is by no means clear that it would have assisted the Claimant’s case. Barkas indicates that the question whether a use is “by right” is concerned simply with the purpose for which in fact the land is being made lawfully available for the time being by a public authority rather than with the statutory function for which it is held: see paragraphs [33] and [37]-[38] above. In the circumstances, however, I need not consider whether the use made of the relevant land for lawful sports and pastimes would still have been “by right” if the District Council had made the land available for such use with the agreement of the landowner under statutory powers other those in the 1906 and 1875 Acts.
(c) conclusion on whether the use made of the relevant land was “as of right”
59. In my judgment, therefore, the Inspector was entitled to conclude on the basis of the evidence which he had that the use made of the relevant land for lawful sports and pastimes had been “by right” (not “as of right”) during part of the 20 year period before the application for its registration was made given that the relevant land had been made available by the District Council for such use by the public during part of that period (in accordance with the presumption of regularity) with the agreement of the landowner under the powers which that authority had vested in it by section 9 of the Open Spaces Act 1906.
THE REGISTRATION AUTHORITY’S ALLEGED INVESTIGATIVE DUTY
60. Dr Bowes contended, however, that the County Council was obliged to appraise itself of the relevant facts before making a decision which in this case included the powers under which the District Council managed and maintained the land. The question for the court was, he submitted, as Lord Diplock had put it in Secretary of State for Education and Science v Tameside Metropolitan Council [1977] AC 1014 at p1065b-c, “did [the County Council] ask [itself] the right question and take reasonable steps to acquaint [itself] with the relevant information to enable [it] to answer it correctly?”. He submitted that the County Council should have written to the District Council to obtain that information.
61. Mr Evans submitted that the County Council was under no such duty. The regulations governing the determination of the application made under section 24 of the 2006 Act which were applicable in this case, the Commons (Registration of Town and Village
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Greens) (Interim Arrangements) (England) Regulations 2007, did not require the County Council to make such investigations. When considering the position under earlier, similar regulations, Lord Hoffmann stated, albeit obiter but “in case there should be any doubt”, and, so Mr Evans submitted, correctly, that “the registration authority has no investigative duty which requires it to find evidence or reformulate the applicant’s case. It is entitled to deal with the application and the evidence as presented by the parties”: see Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674, at [61].
62. Regulations made under section 24 of the 2006 Act may make provision as to the evidence to be taken into account in making a determination: see section 24(2)(j). Accordingly they may require a registration authority to obtain, or preclude it from relying on, any evidence that such regulations may specify. In my judgment the fact that there is no requirement in the relevant regulations for a registration authority to obtain information other than from the applicant or to consider any information not provided by the applicant or in any written statement of objection does not necessarily mean that it has no power to do so. For example, under the regulations applicable in this case, an authority can rely to reject an application on matters, however obtained, not contained in written statements from objectors received following notification of it to the public and to those interested in (or occupying) the land to which it relates: see regulations 5 and 6 of the 2007 Regulations. Moreover, as Lord Hoffmann recognised, in the context of such regulations, a number of judicial decisions have sanctioned the practice of holding non-statutory inquiries and in one case, R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] JPL 975, Sullivan J decided that the holding of one in some circumstances would be necessary as a matter of fairness: see Oxfordshire County Council v Oxford City Council supra at [29]. Absent some applicable restriction, a registration authority may do anything which is calculated to facilitate the discharge of its functions as such under section 111(1) of the 1972 Act (quoted in paragraph [56] above). A public inquiry is one means by which, if it decides to do so, a registration authority may obtain evidence other than from the applicant and any objector or by which it may test or supplement that which it has received from them in written form. There is nothing in the relevant regulations which precludes it from doing so, or which precludes it from otherwise obtaining evidence, if it decides to do so, provided always that it acts fairly. Subject to any restriction in relevant regulations, it has a discretion whether or not to do so that it may not exercise, or fail to exercise, unreasonably.
63. In my judgment, however, a registration authority is entitled to assume that normally the evidence it obtains from the applicant and any objectors in accordance with any relevant regulations will be sufficient to provide it with sufficient information upon which it may reasonably determine the application made to it, particularly if it has held a public inquiry (as the County Council did in this case), given the nature of the issues to which an application for registration is likely to give rise. That even the holding of a public inquiry will not necessarily be sufficient in all cases, however, if the decision maker is to satisfy his obligation to “call his own attention to the matters which he is bound to consider” (to put it as Lord Greene MR did in Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at p229) is illustrated by the decision of the Court of Appeal in Prest v Secretary of State for Wales (1983) 81 LGR 193. But, in any case, what a claimant who contends that an authority should have made further investigations has to show is that the authority failed to take steps
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which any reasonable authority would have done in order to obtain the information or evidence without which no reasonable authority could have made the decision it did in the circumstances: see eg R v Westminster City Council ex p Monahan [1990] 1 QB 87 CA at pp 92e-f, 117f-118c, 121f, 122g; R (Katun) v Newham Borough Council [2004] EWCA Civ 55, [2005] QB 37 per Laws LJ at [35]; R (Badger Trust) v Secretary of State for the Environment Food and Rural Affairs [2012] EWHC 1904 (Admin) per Ouseley J at [45] and [67] (permission to appeal on this ground was refused by the Court of Appeal: [2012] EWCA Civ 1286 at [6]-[7]); R (Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (Admin) at [99]-[100].
64. In this case the Inspector noted that there had been no want of trying by the parties to obtain relevant information from the District Council; that the information they had each obtained was consistent and not disputed; but that their efforts had met with only limited success28. In those circumstances, in my judgment, as Mr Evans submitted, the County Council was under no obligation to replicate what the parties to the Inquiry had already done. The Claimant has not shown that any reasonable authority would have done so. Dr Bowes did not submit, for example, that there was anything which would have indicated to the County Council that, if it had itself made further enquiries, it was likely that it would (or even might) have obtained any further information from the District Council, much less any that would (or even might) have made any material difference to its determination.
65. Dr Bowes also submitted that the County Council should have made further inquiries about the powers under which the National Rivers Authority carried out the engineering works it did in 1993. For the reasons I shall give below, he has likewise failed to show that the County Council acted unlawfully in failing to do so.
66. In my judgment, therefore, this ground of complaint fails. Accordingly this claim for judicial review must be dismissed in any event regardless of the final ground on which it is pursued that concerns the break in the public’s use of the land in 1993.
INTERRUPTION TO THE USE MADE OF THE LAND
67. The final ground on which Dr Bowes contends that the decision impugned is flawed concerns the Inspector’s conclusion that there had been an interruption of the use of the relevant land for lawful sports and pastimes during the 3 months in 1993 during which the engineering works to refashion the sea wall or bank were carried out. Even if my conclusions are wrong in respect of the challenge to the finding that the use made of the relevant land was not “as of right”, the decision to refuse its registration would not be affected unless the Claimant can also show that the Inspector’s conclusion on the present issue was flawed.
68. Dr Bowes submitted that the Inspector’s conclusion was flawed for three reasons: (i) that, to constitute a relevant interruption by a third party, there must be a physical ouster of local inhabitants from the land but that here there was not; (ii) that the use made of land for lawful sports and pastimes need not be continuous throughout the 20 year period and a three month interruption need not defeat a claim to registration; and (iii) that, in any event, that period fell to be disregarded under section 15(6) of the 2006 Act.
28 See [IR 11.50] and [11.51]. Page 83 of 92
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(i) the alleged need for a physical ouster of local inhabitants from the land
69. Dr Bowes relied on the statement by Patten LJ in Betterment Properties (Weymouth) Ltd v Dorset County Council [2012] EWCA Civ 250, [2012] 2 P & CR 3 (“Betterment”) at [71], that “for the actions of a third party to be taken into account there must be a physical ouster of local inhabitants from the land and the disruption must be inconsistent with the continued use of the land as a village green.” On that basis he submitted that, for the flood defence works carried out by the National Rivers Authority on the relevant land in 1993 to have constituted an interruption, it was necessary for there to have been both (a) a physical ouster of local inhabitants from the relevant land and (b) a disruption inconsistent with continued use of the land for lawful sports and pastimes. He submitted that in this case the Inspector had failed to address the need for the first of these two necessary elements and that it was clear from his findings that there had been no such physical ouster of local inhabitants during the works, for example by a fence such as had occurred in Betterment.
70. In my judgment Dr Bowes’ submission that there are two necessary elements for there to be any interruption is misconceived. Physical exclusion of local inhabitants from the land and carrying on an incompatible use of it (in each case whether by the landowner or others) are two different ways in which its use for lawful sports and pastimes by local inhabitants may be interrupted: see eg Gadsden on Commons and Greens 2nd ed at 14-17-14.19.
71. The relevant question is whether the use of any land for lawful sports and pastimes has continued uninterrupted during the relevant 20 year period. An interruption may occur if the public are physically excluded from the land, however the land may be used when that occurs. But, if there are works carried out that mean that the use of the land for lawful sports and pastimes cannot continue, in my judgment there is no reason why such a use should be treated as continuing, even if members of the public are not physically excluded from the area of the works, for example, by a fence. The mere fact that it is physically possible for a local inhabitant to gain access to the area of the works to inspect them (if they are sufficiently interested) when the works are not actually in progress (as the Inspector found was possible in this case), for example, does not necessarily mean that the land can continue to be used for lawful sports and pastimes. Thus the Inspector did not accept in this case that, during the period of the works, the site was available for local people to use for lawful sports and pastimes. That finding Dr Bowes did not seek to impugn.
72. The question that the Court of Appeal had to address in Betterment supra was “whether the physical disruption to public use caused by the fencing off of the site for about four months was sufficient to interrupt user of that land”: see per Patten LJ at [70]. It did not have to address a case in which the land could not be used for lawful sports and pastimes because of works being carried on on it but where the land had not been fenced off so as to exclude local inhabitants from it completely. Patten LJ’s statement on which Dr Bowes relies must be read in the context of the issue in that case which he was addressing.
(ii) whether the use of the relevant land for lawful sports and pastimes continued notwithstanding the three month period of interruption in 1993
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73. Dr Bowes submitted that, even if there had been a break in the use of the relevant land by local inhabitants for lawful sports and pastimes for three months in 1993, that was an insufficient basis for finding that their use of it had not continued without interruption during the relevant 20 year period. He submitted that the public’s recreational use need not be without any break at all. For example a beach can be used by the public for recreational purposes even if it is covered by water for very substantial periods. Nor, so Dr Bowes submitted, need the public’s use be the sole use made of the land. He pointed, for example, to the discussion in Lewis supra of the compatibility of low level agricultural activities and the recreational use of the same land by local inhabitants. In that case Lord Walker of Gestingthorpe JSC thought that taking a single hay crop from a meadow (which might mean local inhabitants keeping off the field for three months) was compatible with the recreational use of the land in the late summer and from then until the next spring: see at [21]-[28]; cf also per Lord Hope of Craighead DPSC at [74].
74. In my judgment the question whether any break in the use made by local inhabitants of land for lawful sports and pastimes is sufficient to interrupt their continuous use of it for that purpose in the relevant 20 year period is a matter of judgment for the registration authority which, absent any misdirection, can be impugned only on well known Wednesbury grounds. Thus no one would reasonably suggest, for example, that the fact that the public may not use land for lawful sports and pastimes during the night would mean that their use of the land had not been continuous for the purpose of this legislation.
75. In my judgment Dr Bowes has not shown that in this case the Inspector misdirected himself in law. He was not required to compare the flood defence work in this case, whose nature and extent necessarily obstructed local inhabitants from using the relevant land for lawful sports and pastimes, with recurrent use of land by a landowner (for example, for low level agricultural activities or golf) which the public may choose to respect while continuing to use the land for such recreational purposes as of right. Moreover Dr Bowes did not submit that the conclusion that the Inspector came to was one no reasonable person could have reached in this case. Such a submission would have been difficult to advance given that the Court of Appeal had found no error in the conclusion that a four month break associated with the execution of works was sufficient to constitute an interruption in the continuity of the public’s use of land in Betterment supra.
(iii) whether any interruption fell to disregarded given section 15(6) of the 2006 Act
76. As I have mentioned above, Dr Bowes submitted that the County Council should have made further inquiries about the powers under which the National Rivers Authority carried out the flood defence works on the relevant land that it did in 1993. The significance of the powers which the National Rivers Authority relied on is that they may be relevant to the question whether any interruption to the use of the relevant land by the public for lawful sports and pastimes falls to be disregarded by virtue of section 15(6) of the 2006 Act.
77. I have quoted section 15 of the 2006 Act and subsection (6) in particular in paragraph [9] above.
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78. In my judgment this complaint is without merit. No party placed reliance on section 15(6) of the 2006 Act until after the determination of the relevant committee which the Claimant now impugns. Accordingly it was not unreasonable for the County Council not to have investigated the powers which the National Rivers Authority were relying upon. Moreover, and in any event, it appears, as Mr Evans submitted, that the flood defence works were in fact carried out by the National Rivers Authority under powers which that Authority then had vested in it by section 165(2) of the Water Resources Act 1991. No other power which that Authority had to do the works has been suggested by the Claimant. Thus the Claimant has not shown that it has suffered any prejudice in advancing the contention (which it now does) that the interruption of the use of this land for lawful sports and pastimes is to be disregarded given section 15(6) of the 2006 Act.
79. The question under section 15(6) of the 2006 Act is whether “access to the land was prohibited to members of the public by reason of an enactment”.
80. Mr Evans submitted that there is no evidence that access to the relevant land was prohibited in 1993 by reason of any enactment. It is not sufficient merely that access is in fact prevented: it must be prohibited by reason of an enactment. Dr Bowes submitted that access is prohibited by reason of an enactment when access for lawful sports and pastimes is in fact prevented by reason of works under statutory powers (as it was here in 1993).
81. In my judgment section 15(6) of the 2006 Act is concerned with a case in which a statutory prohibition on access to the land is imposed on members of the public. The case of an area closed to the public by order under an enactment during an outbreak of foot-and-mouth disease (given in DEFRA’s Guidance on Part 1 of the Commons Act 2006 published in January 2014 at [8.10.70]) provides an example of such a statutory prohibition. No doubt such a prohibition has the consequence that the public may not use the land lawfully for lawful sports and pastimes. But the relevant prohibition is one on access to the land by members of the public. Section 15(6) would not require any period in which the land could not lawfully be used for such purposes (for example by bye-laws or an order made under any enactment) to be disregarded.
82. Equally it follows in my judgement that section 15(6) of the 2006 Act is not concerned with cases in which works are carried out on land which in fact prevent any use of it by the public for lawful sports and pastimes. Indeed, were it otherwise, it would create an inexplicable distinction between (a) the legal effect of works carried out by a private landowner and (b) the legal effect of works carried out by a public authority on its own land (or on the land of others with their agreement or under compulsory powers) which it can only do in the exercise of some statutory function. In each case the interruption may be the same but the legal result would be different for no apparent reason.
CONCLUSION
83. For the reasons I have given, the County Council’s Development and Regulation Committee were entitled to conclude that the public’s use of the relevant land for lawful sports and pastimes had been “by right”, rather than being “as of right” (as section 15(2)(a) of the 2006 Act requires), during the 20 year period before the application for its registration was made. In addition, and in any event, they were also Page 86 of 92
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entitled to conclude that the public’s use for that purpose had not continued throughout that period but had been interrupted in 1993. This claim for judicial review must accordingly be dismissed.
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Page 88 of 92 AGENDA ITEM 7a
DR/49/14
Committee DEVELOPMENT & REGULATION
Date 28th November 2014
INFORMATION ITEM Applications, Enforcement and Appeals Statistics
Report by Director of Operations, Environment & Economy
Enquiries to Robyn Chad – tel: 03330 136 811 or email: [email protected]
1. PURPOSE OF THE ITEM
To update Members with relevant information on planning applications, appeals and enforcements, as at the end of the previous month, plus other background information as may be requested by Committee.
BACKGROUND INFORMATION
None.
Ref: P/DM/Robyn Chad/
MEMBER NOTIFICATION
Countywide.
SCHEDULE Minerals and Waste Planning Applications
No. Pending at the end of September 14
No. Decisions issued in October 1
No. Decisions issued this financial year 26
Overall % in 13 weeks or in 16 weeks for EIA applications this financial year 64% (target 60%) (CPS returns count)
Of the applications outside of 13/16 weeks, % in extension of time 78% agreed
Page 89 of 92 Nº Delegated Decisions issued in October 0
Nº Section 106 Agreements pending at the end of October 1
County Council Applications
% of minor applications in 8 weeks this financial year (Target 70%) 57%
Nº. Pending at the end of September 6
Nº. Decisions issued in October 2
Nº. Decisions issued this financial year 26
% of Major Applications determined in October (13 weeks allowed or 16 weeks 80% for EIA applications)
% of the applications outside of 13/16 weeks, within extension of time 0% agreed
Nº Delegated Decisions issued in October 2
All Applications
Nº. Delegated Decisions issued October 2
Nº. Committee determined applications issued in October 1
Nº. of Submission of Details dealt with this financial year 126
Nº. of Submission of Details pending at the end of October 83
Nº. of referrals to Secretary of State under delegated powers in October 1
Appeals
Nº. of appeals outstanding at end of October 2
Enforcement
Nº. of active cases at end of last quarter 28
Nº. of cases cleared last quarter 16
Page 90 of 92 Nº. of enforcement notices issued in October 1
Nº. of breach of condition notices issued last month 0
Nº. of planning contravention notices issued last month 0
Nº. of Temporary Stop Notices Issued last month 0
Nº. of Stop Notices Issued last month 0
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