R (Open Spaces Society) v SSEFRA [2022] EWHC 3044 – judgment available here.

The access road was needed to connect a development site for which planning permission had been granted to the public highway.

The High Court clarified a number of aspects of the Government’s 2015 Common Land Consents Policy (CLCP) and the relationship between applications for works on common land (under section 38 of the Commons Act 2006) and applications for the deregistration (and possible exchange) of common land under section 16.

The Judge held in summary:

1. That no assistance is generally to be gained from the guidance on section 16 applications in the CLCP when considering section 38 applications;
2. Under the CLCP, applicants for consent under section 38 “must adduce evidence of alternatives they have considered and, if they have rejected them, they should generally offer a proper explanation as to why they have done so” – the intensity of review will depend on the circumstances of the case, however that may include the alternative of making an application for deregistration and exchange under section 16 (a ‘replacement alternative’); and
3. Applicants for vehicular access works on common land do not need to pass an “only practical means” test, but must properly consider alternatives.

The inspector had granted consent for the access works on the basis that they would have a minimal impact on the common land and had not held against the applicant its failure to consider alternatives – in particular (i) the possibility of using land that was not on the common to access the development site (an ‘off-common alternative’) and (ii) the possibility of offering some land from within the development site in exchange for the common land affected by the works under section 16 (a ‘replacement alternative’).  In dismissing the claim, the Judge noted the guidance of the Supreme Court in Hopkins Homes Ltd v SSCLG [2017] UKSC 37 that “the courts should respect the expertise of the specialist planning inspectors and start at least from the presumption that they will have understood the policy framework correctly”.  The Judge held that in that regard that there was no reason to suspect that the inspector had misunderstood the CLCP and that he had given sufficient reasons justifying a departure from the policy in what he regarded as the specific circumstances of the case.

The case appears to be the first time that s.38 of the Commons Act 2006 or the CLCP have been considered by the High Court.

Ned Westaway appeared for the Secretary of State.