Barking Tye section 38 Commons Act 2006 important clarification

The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs [2022] EWHC 3044 (Admin) was a challenge by way of judicial review to a decision of an Inspector appointed by the Secretary of State, on an application under section 38 of the Commons Act 2006, to grant consent to carry out certain restricted works on common land at Barking Tye in Suffolk.  The application which led to the decision was made by a developer and comprised the construction on the common of a new permanent shared vehicular access way covering approximately 70m2 of common land in order to serve a proposed development site for nine dwellings immediately on the other side of the common.  The proposed access road would link the proposed development site with the nearby public highway (the B1078 Barking Road).

The Claimant (The Open Spaces Society) contended that the applicant developer had not adequately explored the possible alternatives to constructing a paved road across the common, and that the burden of proof was on the applicant to demonstrate that alternatives were either not available at all or were not suitable.  Specifically, the Claimant contended that the applicant had not properly investigated two possible alternatives here: (a) the possibility of constructing an access road in a nearby alternative location which was largely off the common, and (b) the possibility of offering land under the exchange mechanism in section 16 of the 2006 Act in exchange for the land to be paved over.  The Claimant contended that, under the Secretary of State’s Common Land Consents Policy (published by Defra in November 2015) (the “Policy”), consent should only be granted to the construction of a vehicular way over a common where this was the “only practical means” of achieving access to the land adjacent to the common (paragraph 5.9 of the Policy) and that “The Secretary of State will wish to know what alternatives have been considered to the application proposal” (paragraph 4.3 of the Policy), requirements which had to be complied with unless there was good reason to depart from them.  The Claimant also contended that these requirements had a clear statutory basis, namely, the requirement in section 39(1)(d) of the 2006 Act to take into account “any other matter considered to be relevant”.  In contrast, the Defendant (the Secretary of State) contended that the Policy was in discursive terms (not mandatory terms) and that the Inspector had taken into account all relevant factors so that, on the usual public law principles, the decision could not be challenged.

Comment

Sir Ross Cranston (sitting as a High Court Judge) provided important clarification on the principles to be taken into account.  These will provide welcome guidance for future applications for consent under section 38.  The Judge accepted many of the Claimant’s arguments, including the key points that the Secretary of State’s policy is to explore the alternatives, and that any prior grant of planning permission for a particular option does not remove the requirement to consider those alternatives.  Specifically, the Judge provided the following confirmations:

•  “a determination may depart from the policy if it appears appropriate to do so. In such cases, the Inspectorate will explain why it has decided not to follow the policy” ([34]).
• “… [U]nder the Policy applicants for consents must adduce evidence of the alternatives they have considered and, if they have rejected them, they should generally offer a proper explanation as to why they have done so” ([56]).
• “[A]n applicant may need to consider a section 16(1) application as an alternative in the circumstances of a particular section 38(1) application and explain (if that is the position) why it is impossible or undesirable” ([58]).
• “[A]n applicant for consent under section 38 of the 2006 [Act], whether or not it chooses to make a concurrent application under section 16, must properly explore potential alternatives and this may include a replacement alternative. The rejection of potential alternatives must be properly explained” ([59]).
• “… [Paragraph 5.7 of the Policy] does not permit a wider public benefit to be weighed against permanent (lasting) works to diminish their adverse impacts. Works having a permanent impact must confer a wider public benefit and that impact must not be significant” ([61]).
• “[The] alternative [of a section 16 application] is plainly to be preferred to a proposal under which the impact of the proposed works is both lasting and has some (albeit perhaps small) residual adverse effect” ([61]).
• “The upshot is that permanent works on a common which require section 38 consent are to be avoided if possible unless their effect is to maintain or improve the condition of the common (paragraphs 3.2, 5.7 [of the Policy]). It is difficult to conceive of how a paved vehicular way across a common to serve an adjoining development (or otherwise) will maintain or improve the common. That underlines the need for applicants to explore and explain suitable alternatives” ([63]).
• “[T]he Policy requires an applicant to consider alternatives to any application it proposes. It is for the applicant to produce evidence sufficient to persuade an inspector that alternatives have been properly considered and rejected. With a section 38(1) application these might include … off common and replacement alternatives” ([69]).
• “[T]hese alternatives were so obviously material that the inspector had to take both into account” ([72]).

On the particular facts of the case, the challenge was dismissed because the Court considered that there were sufficient reasons on the facts to permit a departure by the Inspector from the terms of the Policy.  Nevertheless, the general statements of principle which the Judge confirmed will provide clear and robust guidance for future applications.

George Laurence KC and Simon Adamyk acted for the Claimant.

30 November 2022

This case was discussed at our recent Public Rights Over Land Conference: Events – Public Rights Over Land Conference 2022 – New Square Chambers