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High Court underlines Breadth and Importance of s. 28G duty to further conservation and enhancement of environment in decisions affecting land

Mark Lowe QC and Jack Parker, acting for Cardiff City Council in R(Western Power Distribution Investments Ltd) v Cardiff City Council [2013], appeared before Mr Justice Burton, in a JR challenge to the Council's decision to appropriate open space land for allotments.

The relevant land was a narrow "dead-end" strip of grass running alongside allotment gardens that had together been fenced off for such purposes since 1976. The Council had been unable to produce evidence that the land had been formally appropriated for allotment uses from open space under s. 122 of the Local Government Act 1970 at that time. The formal appropriation had either been overlooked, or it had been carried out and the evidence lost in a fire that occurred some time ago.

In order to remedy the anomaly, the Council had decided (by way of a Cabinet resolution) to formally appropriate the land from open space to allotments under s. 122 LGA 1970 following appropriate statutory consultation.

The Claimant was a developer who owned a large tract of neighbouring land (largely comprising two reservoirs) in respect of which there was an outstanding application for planning permission for a large residential development. One of the reservoirs and the embankments of both were also the subject of separate SSSI designations. The embankments of both were regularly used by members of the public for walking. In some situations that activity constituted a trespass. The Claimant objected to the appropriation of the land as allotments contending that there remained a need to use the land for public open space purposes to alleviate recreational pressure on the reservoirs.

The decision to appropriate the land away from open space to allotment purposes was challenged in respect of the strip of grass (and not the allotment gardens themselves) on the following grounds:

(1)   In deciding whether the land was "no longer required" for open space purposes pursuant to s. 122 LGA 1972, the Council had unlawfully failed to comply with its obligation under s. 28G of the Wildlife and Countryside Act 1981 to "further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site [in this case the two reservoirs] is of special scientific interest". The judge found that the comparison drawn in the Officer's Report between the 'dead-end' nature of the strip of land with the "circular route" (and waterside views) "offered by a walk around a riverside embankment", which was the subject of the SSSI designation, was not consistent with the Council's s. 28G duty. The report failed to mention that the circular walk was only lawfully available at certain times of the year (and at other times such use being a trespass), and at no time were dog walkers lawfully able to use the reservoir embankment.

(2)   The Report made reference to a 2007 open space survey which stated that there was a surplus of open space provision in a neighbouring ward. The report failed to mention that this surplus included "educational land" which could not be used by members of the public and also failed to make reference to a more recent 2009 Council survey, which indicated that this surplus had now become a deficit. Although the 2009 survey was not a "published" planning document it was nonetheless available to the Claimant and the information put before members was therefore wrong.

(3)   A third ground, that the Council had unlawfully approached s. 122 LGA 1972 by reference to whether the use currently pertaining on the land (for allotment purposes) continued to be required rather than whether the lawful open space use was no longer required, failed.

This decision underlines the breadth and importance of the s. 28G duty in a range of decision-making contexts which affect designated SSSIs and other habitats or features of ecological interest, even where such land is not within the control of the relevant decision-maker.

This decision is not currently publically available. Please contact the Cornerstone Clerks for more information.