Through court action the society has saved part of Leigh Common from developers.
Leigh Common is a nine-hectare woodland and grassland nature reserve in Colehill, near Wimborne—the first common land in Dorset to be registered in 1967 and given permanent protection. In 2016 developers Gleeson Developments Ltd applied to Dorset County Council (now Dorset Council) to deregister a broad swathe of Leigh Common either side of Leigh Road—about 1.3 hectares, or one-seventh of the entire common. Lewis Wyatt (Construction) Ltd then applied in 2017 to deregister part of the same land. The developers applied under section 19 of the Commons Act 2006, on the grounds that a mistake had been made by the commons registration authority. Both developers at that time had interests in building on land to the south of Leigh Road, and had obtained consents from the secretary of state—also opposed by the society—for road works on the common to facilitate access to their development sites.
In December 2018, the council granted the applications relating to most of the land south of Leigh Road, agreeing with the developers that it must have made a mistake in 1967 in provisionally registering the land under the Commons Registration Act 1965. It agreed with the developers that the land at that time was part of the highway comprised in Leigh Road, and should not have been registered. It ignored the society’s objections that:
(a) the council had made no mistake in 1967—it was obliged, on an application made to it, to register the land as common land, and did so;
(b) the council’s then county surveyor objected only to the registration of a six foot strip of verge on the north side of the road, and the strip was removed by agreement—so the highway authority had no belief at the time that the highway had a greater extent;
(c) the evidence that the land was part of the highway was highly questionable—and not anyway available to the council in 1967;
(d) the applications should have been referred to the Planning Inspectorate for determination, as the council had a clear interest in the outcome as highway authority, and as the beneficiary of a planning agreement concluded for the nearby developments;
(e) the council failed even to consider the ‘fairness’ test in section 19(5), as it was required to do.
We asked George Laurence QC and Ross Crail, instructed by Richard Buxton, to challenge the decisions. Following receipt of the pre-action protocol letter, the council, to its credit, agreed that its decisions were wrong, and that they should be quashed.
But that was not the end of the story. Pre-action protocol requires notice to be given to other parties with an interest in the proceedings. Neither Gleeson nor Lewis Wyatt objected, but late in the day, BDW Trading Ltd (part of Barratt Developments plc), which had purchased Gleeson’s interest in adjoining land, refused to agree to the decisions being quashed. The society was therefore obliged to apply to the high court to seek permission to bring an action for judicial review. BDW maintained its objection, saying to the court that the society’s application for leave was ‘hopeless’ and opposing the society’s bid for a costs-capping order under the Aarhus rules on environmental litigation, but failing to engage with the society’s key point: that no mistake had been made by the council in registering the land in 1967. High court judge Mrs Justice Andrews DBE granted permission for judicial review, saying she was ‘unimpressed by the bullying tone of the correspondence from BDW’, and granting a costs cap, describing it as ‘plainly an Aarhus case’ and the society ‘a paradigm example of the type of claimant who should be afforded costs protection in cases of this nature’.
Finally, less than a month before the high court hearing, having seen the society’s admirable skeleton argument prepared by counsel, BDW offered to settle the case, and after negotiation, the society was prepared to agree. BDW has consented to the council’s decisions being quashed, as the society had sought, and pay £37,000 towards our costs (the council also will contribute £4,260). As part of the agreement, we have agreed not to object to a potential application for consent under s.38 of the Commons Act 2006 to construct a short section of cycle track on the south side of Leigh Road: this will merely link sections of cycle track already authorised.
Case officer Hugh Craddock said: ‘This is a major victory for the society. With their colossal resources, developers think they can barge opposition out of the way. BDW tried to stop the council’s decisions being quashed even though the council itself, to its credit, agreed the decisions were indefensible. We have stood our ground, and ensured that this land is preserved as part of Leigh Common and protected for future generations.’
Hugh adds: ‘The society argued that it was correct that land was registered as common land, even though it might also be part of the highway, and the court order supports that view. There are many commons in England which are partly or wholly highway land, and had BDW’s view prevailed, it could have led to local authorities deregistering land all over the country, opening it up to development—just as was wanted at Leigh Common.
‘We are very grateful to our members and others, and to our legal team at New Square Chambers and Richard Buxton, who supported our campaign to resist the deregistration of part of Leigh Common. We now expect that other local authorities will take note that the status of land as highway is not a reason for deregistration—and if they don’t, we shall see them in court.’
Here are some earlier articles relating to planning and development that we have challenged at Leigh Common: