Development Plan and TVG

May 20th, 2019 by James Goudie KC

The issue in Wiltshire Council v Cooper Estates Strategic Land Ltd (2019) EWCA Civ 840 was what it takes in a development plan document to identify land for potential development. If land is so identified, the right to apply for registration of a town or village green (a “TVG”) is suspended.

The reference to the “development plan” now includes development plan documents, and neighbourhood plans: Planning and Compulsory Purchase Act 2004 Section 38 (3). A neighbourhood plan must be in general conformity with the strategic policies contained in the development plan for the area: Town and Country Planning Act 1990 Schedule 4B paragraph 8 (2) (e). But it need not slavishly adopt every detail. Once made, a neighbourhood plan becomes part of the statutory development plan. The importance of development plan documents is stressed in the National Planning Policy Framework.The key parts of a development plan document are the policies themselves. The interpretation of a development plan document is a question of law, which is ultimately for the courts to determine. A development plan document must be construed as a whole; but recognising that in some cases broad statements of policy may pull in different directions. Supporting text is relevant to the interpretation of the policies; but cannot trump the policies themselves.

It is not a requirement of a trigger event that only the land in question is identified. It may be part of a larger identified area.

But the question remains: identified for what? The trigger event is not that the land in question has been identified “for development”; but that it has been identified for “potential development”. “Potential”, is a very broad concept, is not qualified, and is not to be equated with likelihood or probability.  In the context of town and country planning, it can, for example, be contrasted with “allocation” where a site is allocated for a particular use or development.

“The land” must refer to the land the subject of the application for registration as a TVG. That land is not identified merely by narrowing the field. It must be specifically identified. But that land could be identified in a number of different ways. It could be identified by a line on a map. If so, the line on the map need not be restricted to the application land alone. It could be identified by a verbal description of the parcels. But it could also be described by reference to prescribed criteria.

The Court of Appqel held (paragraph 40) that the land had been identified by the development plan document; and that the development plan identified the land “for potential development”. “Potential” and “development” are both very wide terms. The former falls a very long way short of “suitable for” and the latter includes within its scope developments which do not include any new construction, such as a change of use.

The Council’s registration of the land as a TVG was quashed, because the identification of the land for potential development in the Council’s adopted Development Plan document constituted a “trigger event” for the purposes of Section 15C of the Commons Act 2006, inserted by Section 16 of the Growth and Infrastructure Act 2013.

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