England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE SULLIVAN)
CO/2605/05

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st February 2007

Lord Justice Chadwick :

1. This is an appeal from an order made on 3 November 2005 by Mr Justice Sullivan in the Administrative Court on an application under Part III of the First Schedule to the National Parks and Access to the Countryside Act 1949 ("the 1949 Act") by way of challenge to the decision of the Minister of State for Rural Affairs and Local Environmental Quality, acting on behalf of the Secretary of State for Environment, Food and Rural Affairs, to confirm the New Forest National Park (Designation) Order 2002. Effect was given to that decision on 1 March 2005 by the New Forest National Park (Designation) Confirmation Order 2005. The judge upheld the challenge and quashed (in part) the Confirmation Order. Permission to appeal to this Court was granted by Lord Justice Keene on 10 March 2006.
2. The Designation Order was made by the Countryside Agency pursuant to Part II of the 1949 Act. Following the judge's order of 3 November 2005 – and, as a response to his judgment [2005] EWHC 2618 (Admin) - section 5 of the 1949 Act, which prescribes the criteria for designating areas as National Parks, was amended by the Natural Environment and Rural Communities Act 2006 ("the 2006 Act"). It is common ground that the amendment is not retrospective: in the sense that it does not alter the law by reference to which the question whether the Minister had power to confirm the Designation Order on 1 March 2005 must be determined in these proceedings. Nevertheless, in deciding what order should be made on this appeal, it is necessary to have in mind that (if the judge's order stands) on any future consideration of the question whether the Designation Order should be varied by the Secretary of State will have regard to the amendments introduced by the 2006 Act: section 59(2) of that Act. As I shall explain, the effect of the 2006 Act is to limit the issues which need to be addressed on this appeal.

The legislative framework

3. The power to designate areas as National Parks is conferred by section 5 of the 1949 Act. At the time that the Designation Order was made by the Countryside Agency (24 January 2002), the section (following amendment by the Environmental Protection Act 1990, the Environment Act 1995 and the Development Commission (Transfer of Functions and Miscellaneous Provisions) Order 1999, SI 1999/416) was in these terms:

"5(1) The provisions of this Part of this Act shall have effect for the purpose -

(a) of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and

(b) of promoting the opportunities for the understanding and enjoyment of the special qualities of those areas by the public.

(2) The said areas are those extensive tracts of country in England as to which it appears to the Agency that by reason of

(a) their natural beauty and

(b) the opportunities they afford for open-air recreation, having regard both to their character and to their position in relation to centres of population,

it is especially desirable that the necessary measures shall be taken for the purposes mentioned in the last foregoing subsection.

(3) The said areas, as for the time being designated by order made by the Agency and submitted to and confirmed by the Minister, shall be known as, and are hereinafter referred to as, National Parks."

Paragraph (a) in section 5(1) is to be read in conjunction with section 114(2) of the 1949 Act:

"114(2) References in this Act to the preservation or the conservation of the natural beauty of an area shall be construed as including references to the preservation or, as the case may be, the conservation of its flora, fauna and geological and physiographical features."

4. Section 6(1) of the 1949 Act requires the Countryside Agency to consider, from time to time, what areas there are in England falling within section 5(2) and to proceed with their designation at such times as the Agency may determine. Before making a designation order the Agency must consult with any local authority whose area includes any land in the area to be designated: section 7(1). Any designation order shall describe the area to be designated by reference to a map and such other descriptive matter as may appear to the Agency to be requisite: section 7(2).
5. Section 5(3) of the 1949 Act (following a number of other Transfers of Functions Orders which it is unnecessary to recite) requires that, before the designated area becomes a National Park, the designation order made by the Agency be submitted to and confirmed by the Secretary of State. Section 7(3) gives effect to the provisions in the First Schedule to the Act "as to the making, confirmation, coming into operation and validity of any order designating a National Park". Section 7(4) provides that the Secretary of State may by order made after consultation with the Agency, vary an order designating a National Park
6. Paragraph 1 in Part I of the First Schedule to the Act requires that, before a designation order is submitted to the Secretary of State for confirmation, the Agency must give notice in a form which enables representations and objections to be made. Paragraph 2(2) of the schedule provides that if any objection duly made is not withdrawn, the Secretary of State must either cause a local inquiry to be held or afford to the objector an opportunity to be heard by a person appointed for the purpose. After considering the report of the person appointed to hold the inquiry (or to hear the objector, as the case may be) the Secretary of State may confirm the designation order with or without modifications. Paragraph 3 requires that, on confirming a designation order, the Secretary of State must publish a notice stating that it has been confirmed. Paragraph 8 in Part III of the First Schedule provides that, if any person desires to question the validity "of an order to which Part I of this Schedule applies" on the ground that it is not within the powers of the Act, he may (within six weeks of the publication of notice of the confirmation) apply to the High Court. If, on any such application, the court is satisfied that the order is not within the powers of the Act, it may quash the order generally or so far as it affects the applicant.

The Designation Order

7. The Designation Order made by the Countryside Agency on 24 January 2002 designates as a National Park "all that area of land comprising approximately 670 square kilometres situated in the counties of Hampshire, Wiltshire and Dorset, and bounded by an orange line on the map annexed hereto and further described in the Schedule to this order". In the context of these proceedings, it is sufficient to note that the designated area extends from the northeastern edge of the New Forest (on the outskirts of Southampton) to the southwestern corner, north of New Milton and Christchurch. It is the boundary at the southwestern corner that is in issue. So far as material, that boundary (as designated in 2002) followed the B3055 westwards for 3 kilometres towards Beckley, then turned north on a loop of minor roads to Beckley Common, rejoined the B3055 for a another 200 metres, and turned south along field boundaries to include Hinton House, Cranemoor Wood and Meetinghouse Plantation, where it joined the mainline railway. The boundary then followed the mainline railway westwards for about two and a half kilometres before turning north to Waterditch Farm, and then west along Preston Lane.

The Hinton Estate

8. The Hinton Estate comprises some 6,000 acres (2,428 hectares) in and around the village of Bransgore, which is in the southwest corner of the designated area. The estate includes, in particular, Hinton Park and Hinton Admiral House (within the Park) which is the ancestral home of the Meyrick family. The estate is owned by trustees and managed by Meyrick Estate Management Limited. Most, although not all, of the estate (including Hinton Park) lies within the boundary as designated in 2002. The management company lodged an objection to the Designation Order. The basis of that objection was that some 800 acres of the estate – comprising Hinton Park and bounded on the south and east by the boundary proposed by the Designation Order – should be excluded from the designated area on the grounds that it did not meet the criteria prescribed in section 5(2) of the 1949 Act. It is important to have in mind that the effect of the objection, if upheld, would be to alter the boundary of the area designated by the Designation Order by diverting that boundary around, and to the north and west of, Hinton Park. That would take Hinton Park outside the National Park boundary: it would not create an "island" of excluded area within the National Park boundary.

The local inquiry

9. Following submission of the Designation Order for confirmation - the Secretary of State appointed an inspector to hold a local inquiry into the following matters (so far as material): (i) does the area as a whole enclosed within the proposed boundary meet the criteria and purposes of designation as a National Park set out in the 1949 Act; (ii) should the boundary be altered to include or exclude any areas specifically referred to be objectors to the Order, bearing in mind the criteria and purposes of designation? The inspector appointed a Landscape Assessor ("the assessor") to assist him. The inquiry was conducted over the period 8 October 2002 to 10 April 2003. The inspector made his report to the Secretary of State on 19 December 2003.
10. Evidence was given to the inquiry on behalf of the Hinton Estate – and on behalf of a neighbouring estate, the Avon Tyrell Estate, which lies to the north of the Hinton Estate – by a landscape consultant, Ms Sarah Reynolds, BSc (Hons), DipLD, MA, MLI. Ms Reynolds had provided a substantial proof of evidence, which has been put before us. It is, I think, sufficient to refer to three paragraphs in that proof which are of importance in relation to the criteria prescribed in paragraph (b) of section 5(2) of the 1949 Act – opportunities for open air recreation. At paragraph 7.14 of her proof, Ms Reynolds noted:

"7.14 The extent of public footpaths and rights of way are somewhat limited within the Estate. There are no public rights of access within the central part of the Hinton Estate. This area includes Hinton Park and the adjacent woodlands of Allensworth Wood, Holmhill Lane and Poors Common."

After noting at paragraph 8.68 that large parts of the Hinton Estate, "including Hinton Park, Holmhill Lane and Allensworth" had been included within the Designation Order area "notwithstanding the non-existence of public rights of way", she observed (at paragraph 8.74) that there might be areas of land within the Estate (of which Burton Common, Poors Common and Beckley Common were examples) "which could be made available for public access subject to protection of their nature conservation status and interest". She pointed out, correctly, that the estate had made no objection to the inclusion of those areas within the National Park. In recording that evidence (which was not challenged) the inspector noted, at paragraph 4.118 of his report, that "the estate would not welcome pressure to provide access to the areas which it wishes to exclude from the [National Park] apart from the occasional opening of the private parklands around the house for certain special events".

11. The assessor confined her report to the inspector to matters concerning the natural beauty criteria – paragraph (a) of subsection 5(2) of the 1949 Act. Section 3 of her report addressed "Concepts and Issues relating to the Natural Beauty Criterion": section 4 gave consideration to "Areas satisfying the Natural Beauty Criterion" and recommended boundary modifications. Her conclusions in relation to Hinton Park, with which the inspector agreed, are incorporated into the inspector's report at paragraphs 4.165 to 4.168:

"4.165 I find that the contended land at Hinton Park and the surrounding associated countryside has long been recognised for its natural beauty, having been part of the NFHA [New Forest Heritage Area].

4.166 While accepting that the landscape of Hinton Park is not often visible from surrounding countryside due to the extensive layout of woods beyond the central parkland area and the mosaic of smaller woodlands within, I do find that the wider landscape setting is appreciable at various locations in the surrounding countryside and from longer distance viewpoints. The landscape character is one that is redolent of the New Forest, markedly intact and of a very high quality, which typifies a well-managed estate that is intrinsically part of the wider New Forest landscape and amply meets the natural beauty criterion.

4.167 Beyond the highly regarded designed landscape of the parkland, which is recorded and detailed in the Hampshire County Register of Historic Parks and Gardens, with English Heritage Grade I listing for the buildings it contains, I find the wider landscape within which it sits consistently includes all the characteristics of its Heath Associated landscape type which is a classic New Forest type found elsewhere within the NFNP [New Forest National Park].

4.168 I therefore have no hesitation in recommending that this area should be included in its entirety within the NFNP as it more than adequately satisfies the natural beauty criterion and I see no reason on these grounds for a boundary revision in this area."

12. As I have said, the inspector adopted those conclusions as his own. He said this:

"4.190 Turning to the large area of contention based on Hinton Estate, I agree with the Landscape Assessor that this area meets the natural beauty criterion. From our extensive accompanied visit I am satisfied that the area has a very high quality, intact, well-maintained landscape containing considerable elements of variety from broad parkland to intimate wooded valleys to the well-ordered woodland-fringed fields of the dairy farms."

It is curious, however, to find that conclusion under the section of the report headed "Opportunities for Open-Air Recreation" (paragraphs 4.176 to 4.194) rather than under the section headed "Natural Beauty" (paragraphs 4.171 to 4.175) into which it would seem more aptly to fall. The same may be said, I think, of the inspector's conclusion at paragraph 4.191:

"4.191 This area of Heath-Associated Estates landscape is extensive and forms an important and integral part of the highly attractive ring of landscapes immediately surrounding the perambulation. The various elements of this landscape provide the foreground for those travelling through the area on the A35 and the various other minor roads, including that leading to Forest Lodge, and there are also occasional longer distance views into the landscape. These visual opportunities all add greatly to public enjoyment of the area by considerably extending the experience of being in the Forest."

13. At paragraph 4.192 the inspector did address the second of the two statutory criteria: the need for the designated areas to afford opportunities for open-air recreation. He said this:

"4.192 Although there is little public access to this particular section of the area within the Designation Order south west of the perambulation it is not necessary for such access to exist across every part of a qualifying tract. The estate has a track record of granting and considering access to other nearby areas within the same tract of 'heath-associated estates' landscape type although it has expressed a current desire not to provide access to the area in contention other than, as now, to the Hinton Admiral parklands on special occasions. However, circumstances can change and, given the quality, scale and tranquillity of the landscape resource here, I do not consider it unreasonable to conclude that the general question I have posed in relation to 'potential opportunities' for open-air recreation offering a markedly superior recreation experience (at paragraph 15 of Appendix 2) could be answered in the affirmative. "

14. The inspector's conclusions, in relation to the application of the two statutory criteria to Hinton Park, led him to reject the objection to inclusion of Hinton Park in the National Park.
15. For completeness I should mention that, although the inspector rejected the objection to the inclusion of Hinton Park within the designated area, he did recommend a change to the boundary immediately to the west, so as to exclude the built-up area of Bransgore. The recommended boundary turned north from the mainline railway about one kilometre west of Hinton Admiral station, towards Burton Common and Waterditch, following the boundary of the New Forest Heritage Area.

The Confirmation Order

16. By a letter dated 28 June 2004, signed on behalf of the Minister of State for Rural Affairs and Local Environmental Quality, it was indicated that the Minister had decided "in line with the Inspector's conclusions and having accepted his reasons and those of the Landscape Assessor" that there was a core area which met the designation criteria under the 1949 Act and that "the principle of a National Park for this area has been established". The letter went on, under the heading "National Park Boundary":

"7. The inquiry also addressed whether the boundary as defined in the Designation Order should be altered to include or exclude any areas specifically referred to by objectors to the Order, bearing in mind the criteria and purposes of designation . . .

8 The minister has decided to accept the designation boundary subject to the following modifications -

. . . "

With minor exceptions (not here material) the Minister accepted the inspector's recommendations for the inclusion of additional areas and for the exclusion of some existing areas within the designated boundary. As the judge observed, nothing turns on the terms of the decision letter of 28 June 2004, as (so far as material in the present context) the Minister accepted the inspector's reasoning and recommendations in relation to Hinton Park.

17. The Designation Order was confirmed – but with boundaries altered so as to give effect to the decision letter – by the Confirmation Order made on 1 March 2005. The Confirmation Order was first published on 14 March 2005. It may be noted that, although (whether in section 5(3) or otherwise) the 1949 Act does not provide, in terms, for confirmation of a designation order to be by way of further order, the confirmation of 1 March 2005 is described on its face as a "Confirming Order" and contains the direction that "This Order may be cited as the New Forest National Park (Designation) Confirmation Order 2005".

These proceedings

18. These proceedings were commenced by the issue of a claim form, under CPR Pt 8, on 25 April 2005. The claimants are the management company and the trustees of the Meyrick 1968 Combined Trust (together "the estate owners"). The claim was accompanied by grounds of challenge. It was said that the Secretary of State had made errors of law in the following respects: (1) she had not applied the statutory test of examining whether there were "opportunities for open air recreation" but a different test of whether there were "potential opportunities for open air recreation"; (2) she had not applied the statutory test for designation of "natural beauty" in section 5(2) of the 1949 Act, but the extended definition applicable under section 114(2) only to the management of National Parks under section 5(1); (3) she had failed to take into account the relevant consideration that (as appeared from section 2(1) of, and schedule 4 to, the Countryside and Rights of Way Act 2000) land such as Hinton Park was not thought by Parliament to be suitable for open air recreation; (4) she had found, contrary to the evidence, that Hinton Estates had a track record of giving access to other nearby areas within the same tract of "heath associate estates"; (5) she had attached importance to views into Hinton Park from the A35 and other roads as "visual opportunities"; (6) she had decided that the second criterion for designation (open air recreational opportunities) did not have to be satisfied in relation to disputed tracts of land at the outer boundary of the proposed National Park; and (7), in the alternative, she had failed to make her approach clear in respect of those matters.
19. The proceedings came before Mr Justice Sullivan on 24 October 2005. He gave judgment on 3 November 2005. At paragraph [13] of that judgment he set out the first six grounds of challenge, noting (at paragraph [14]) that the reasons challenge (ground 7) was not pursued as an independent head. He recognised (at paragraph [12]) that, in substance, the challenge was directed to the reasoning in the inspector's report.
20. The judge upheld the challenge on ground (2) – failure to meet the natural beauty criterion. He did so for the reason expressed, succinctly, at paragraph [59] of his judgment: "The Assessor and the Inspector's approach [to the natural beauty criterion] effectively discarded the requirement for a high degree of relative naturalness and substituted a test of 'visual attractiveness' or 'landscape quality'". He pointed out (at paragraph [61]) that the question before him was not "what factors should, as a matter of good countryside planning practice in the 21st century be taken into consideration in designating a National Park", but rather "what factors may lawfully be taken into consideration under an enactment that is now over 55 years old. He accepted that "It might well be the case that 'more modern' legislation would not be satisfied with such a straightforward and simple concept as 'natural beauty'". He gave, as an example of "a more up-to-date approach to countryside planning" the provisions of the National Parks (Scotland) Act 2000, which provided for designation on the grounds of "outstanding national importance because of its natural heritage or a combination of its natural and cultural heritage". At paragraph [62] of his judgment he said this:

"[62] . . . Views as to which tracts of countryside have the quality of 'natural beauty' may (or may not) have changed over the last 50 years, but the 'natural beauty' criterion in subsection 5(2)(a) of the Act has not been changed to embrace wider considerations such as 'cultural heritage'. If the 'natural beauty' criterion in subsection 5(2)(a) is to be changed to reflect 21st century approaches to countryside and leisure planning then the change must be effected by Parliament, and not by administrative action on the part of the Agency in adopting a wider range of factors for the purposes of designation."

Accordingly, the application to quash the order, in so far as it affected so much of the claimant's land as was in contention at the inquiry, was entitled to succeed on ground (2) alone: paragraphs [62] and [85] of the judgment.

21. Nevertheless, the judge went on to consider the other grounds of challenge. He held, in relation to ground (1), that the inspector's approach to the need for opportunities for open air recreation was open to criticism: in that it was impermissible to "water down the statutory requirement by applying a vaguer test such as 'potential scope' or 'potential opportunities'". But he observed that that criticism might be regarded as merely academic if the inspector had, in his report, "clearly explained why the claimant's land did afford opportunities for open air recreation".
22. The judge pointed out that, for the reasons which he explained, paragraph 4.192 of the inspector's report provided "the only substantive discussion . . . of the section 5(2)(b) criterion in so far as it relates to the claimant's land". He identified the two factors on which (as he held) the inspector had relied: (i) the estate's "track record" and (ii) the fact that "circumstances can change". He accepted that the inspector was wrong to think that there was any "track record of granting access" over the Hinton Estate. As he said (at paragraph [80] of his judgment) "The evidence before the inspector clearly demonstrated precisely the opposite: there was no track record of the Hinton Estate granting access". So the challenge under ground (4) was made out. He noted that the inspector had acknowledged (at paragraph 4.192 of his report) that the estate had "expressed a current desire not to provide access to the area in contention [Hinton Park]"; and that the inspector had not rejected the evidence which suggested that the Countryside and Rights of Way Act 2000 ("the CROW Act") could not be relied upon in that context. At paragraph [82] of his judgment the judge observed:

"[82] . . . Absent any track record of granting access, absent any 'current desire' to do so, and absent any prospect of the public being able to assert any rights under CROW, what was left other than (as the claimants put it) 'vague aspirations'?"

He concluded that ground (3) was made out. That ground reinforced ground (1). The inspector had not applied the correct statutory test under section 5(2)(b) of the 1949 Act (either in theory or in practice), "but instead a watered-down test where vague hopes, rather than opportunities, sufficed".

23. The judge rejected the challenge under ground (5). He noted that it was conceded on behalf of the Secretary of State that motorists enjoying views from the A35 and other, minor, roads could not be said to be enjoying "open air recreation". But he accepted that, in reaching his conclusions, the inspector did not fall into the error of thinking that they would be.
24. The judge accepted that, in principle, it was not necessary for there to be rights of access over every part of a qualifying tract of land: a designation could "wash over" a large tract even though there was no public access to parts of the tract. He accepted, also, that there was no basis in the statutory language for a distinction to be drawn, in this context, between the main body of a designated tract and its outer boundary. But he observed that "in practice there may well be more scope for excluding certain areas which do not meet the criteria in subsection 5(2)(b) when defining the outer boundary of a National Park". Whether that would be so in any particular case would be very much a matter for the judgment of the inspector on the ground. He concluded that, having found (i) that the Inspector erred in principle in his application of the "natural beauty" criterion, and (ii) that the inspector erred both in principle and in detail in his application of the "opportunities for open air recreation" criterion to Hinton Park, ground (6) did not add anything of substance.
25. The relief claimed in the proceedings was an order "quashing the aforesaid Designation Order and the Notice of Confirmation Order published on 14 March 2005, insofar as it applies to the Claimants' land at Hinton Admiral Park". The judge did not think it necessary to distinguish between the Designation Order and the Confirmation Order. At paragraph [1] of his judgment he described the application before him as "an application . . . to quash the New Forest National Park (Designation) Order 2002 ('the Order') as confirmed by the defendant on 1st March 2005, in so far as the order relates to Hinton Park". In the final paragraph of his judgment (paragraph [85]) he stated that he intended to "grant the application and quash the order in so far as it affects so much of the claimant's land as in contention at the Inquiry". Nevertheless, it is plain that the grounds of challenge were all directed to the Secretary of State's decision to confirm the Designation Order; rather than the decision of the Countryside Agency to make that Order. And that it was the Secretary of State's decision (to which the Confirmation Order gave effect), rather than the decision of the Countryside Agency, that was thought to be the subject of the challenge in these proceedings is reflected in the form in which the order of 3 November 2005 was drawn and entered. After referring to "the Appellant's Notice of Appeal dated the 25^th day of April 2005 for an order that the Respondent's decision dated the 1^st day of March 2005 be quashed", the order continues in these terms:

"It is ordered that the appeal be allowed and that the said order of the respondent dated the 1^st day of March 2005 be quashed so far as it concerns the Appellants' land as was in contention at the public inquiry . . ."

For reasons which I shall explain, it may be that the more appropriate order would have been in a form which quashed (in part) the Designation Order itself.

The position following the enactment of the Natural Environment and Rural Communities Act 2006.

26. As I have said, section 5 of the 1949 Act has been amended since the date on which the judge made his order. By section 1 of the 2006 Act the Countryside Agency was dissolved and its functions were transferred to a new body, to be known as Natural England. Section 59(1) of the 2006 Act introduced an additional subsection – subsection (2A) – after section 5(2) of the 1949 Act. The new subsection is in these terms:

"5(2A) Natural England may –

(a) when applying subsection 2(a) in relation to an area, take into account its wildlife and cultural heritage

(b) when applying subsection 2(b) in relation to that area, take into account the extent to which it is possible to promote opportunities for the understanding and enjoyment of its special qualities by the pubic."

Further, section 99 of the 2006 Act provides that:

"99 The fact that an area in England or Wales consists of or includes –

(a) land used for agriculture or woodlands,

(b) land used as a park, or

(c) any other area whose flora, fauna or physiographical features are partly the product of human intervention in the landscape,

does not prevent it from being treated, for the purposes of any enactment (whenever passed), as being an area of natural beauty (or of outstanding natural beauty)."

27. The effect of the amendment to section 5 of the 1949 Act, in the present context, is twofold. First, when considering whether it is especially desirable that a tract of land be designated a National Park by reason of its natural beauty, Natural England is required to take into account its cultural heritage, so adopting what the judge described a "a more up-to-date approach to countryside planning". And, when the section is read with section 99 of the 2006 Act, it is clear that land is not prevented from being of "natural beauty" by the fact that it is used for agriculture or woodlands, or as a park, or that its physiographic features are partly the product of human intervention in the landscape. Second, when considering whether designation is especially desirable by reason of the opportunities afforded for open-air recreation, Natural England is required to take into account the extent to which "it is possible to promote" opportunities for the understanding and enjoyment by the public of the special qualities of the tract of land proposed for designation.
28. As I have said, the amendment introduced by the 2006 Act does not alter the law by reference to which the question whether the Minister had power to confirm the Designation Order on 1 March 2005 must be determined in these proceedings. But it is given some limited retrospective effect by section 59(2):

"59(2) The amendment made by subsection (1) applies for the purposes of the confirmation or variation on or after the day on which this section comes into force of orders made before that day as it applies for the purposes of the confirmation or variation of orders made on or after that day."

The provisions in section 59 and 99 of the 2006 Act came into force on 1 May 2006: section 107(3(a) and (7)(a) of that Act.

29. It is said on behalf of the estate owners (as respondents to the appeal) that the effect of the 2006 Act is to make it unnecessary for this Court to consider and decide whether the judge was correct in his conclusions under grounds (1) and (2) of the challenge which was before him: a ruling in this Court on grounds (1) and (2) "would be academic". The Secretary of State, as appellant, takes a different view. It is said that, since the confirmation of the order in this case occurred on 14 March 2005, section 59(2) of the 2006 Act does not apply to the part of the Order challenged: "the issue is therefore not academic".
30. Nevertheless, the Secretary of State has gone on to submit, at paragraphs 15 and 16 of a supplementary skeleton argument dated 27 October 2006, that:

"15. However, even were the Court to consider that Sullivan J was correct in his approach to this issue [ground (1) of the challenge before him], in any event the appeal should be allowed since if the Order designating the NFNP were quashed with respect to the Hinton Estate, it would fall to the Secretary of State to consider making a variation order under section 7 of the 1949 Act to reinstate the Hinton Estate into the NFNP having regard to the new s. 5(2A). In other words, the law to be applied on any subsequent consideration would be that which was in fact applied at the time of the Secretary of State's confirmation.

16 Accordingly, the Secretary of State will submit in the alternative that if Sullivan J's judgment on these grounds was correct in the light of the law which applied at the time the Order was confirmed, then the Court should not quash the Order in respect of the Hinton Estate but should exercise its discretion not to quash. There would be little point in requiring the Secretary of State to vary the NFNP Order to include the Hinton Estate since the law has now changed to reflect the position as it was assumed to be at the time of the decision under challenge."

The Secretary of State takes a similar point in relation to ground (2) of the challenge: paragraphs 21 and 22 of the skeleton. And, in that latter context, reliance is placed on section 99 of the 2006 Act: paragraph 26 of the skeleton.

31. It might be said that, in referring to the Designation Order as the order which has been quashed (in part) by the judge's order of 3 November 2005, the Secretary of State has overlooked the terms in which that order was made. As I have pointed out, the order (as made) was to quash the Confirmation Order. But it seems to be common ground – on the basis of the observations of Mr Justice Mann in de Rothschild v Secretary of State for Transport [1988] 1 PLR 67, 71D-72A, (which received tentative approval in this Court [1989] 1 All ER 933, 941g) – that the true effect of the successful challenge to the Minister's decision to confirm the Designation Order was, indeed, to quash (in part) the Designation Order itself. There can be no doubt that Mr Justice Sullivan (who had appeared as counsel in the de Rothschild case) would have appreciated that that was the effect of what he was doing. There is force in the view that the order of 3 November 2005, as drawn and entered, did not give effect to his intention. Be that as it may, it has not been submitted by the estate owners that (if the judge's order stands) it is not now open to the Secretary of State to consider the matter again. It is accepted that he may do so in the context of making a variation order under section 7(4) of the 1949 Act. And it is, I think, common ground that, if the Secretary of State does consider the matter again, he will do so on the basis of the law as it now stands following the enactment of the 2006 Act.

This appeal

32. The appellant's notice was filed on behalf of the Secretary of State before the enactment of the 2006 Act. Six grounds of appeal were advanced. It was said that the judge erred in holding (i) that the expanded meaning of "natural beauty" in section 114(2) of the 1949 Act was not applicable to the test under section 5(2)(a) of that Act; (ii) that the phrase "natural beauty" requires "a high degree of relative naturalness", such that "'well maintained' historic parkland providing the setting for a Grade I Listed building, and 'well ordered' dairy fields of dairy farms would seem to be the antithesis of naturalness"; (iii) that the effect of giving consideration to "whether there are potential opportunities for something to occur" in the context of the criterion as to "opportunities for open air recreation" in section 5(2)(b) of the 1949 Act, was to lower the statutory threshold; (iv) that the decision to confirm the Designation Order should be quashed (in part) because the Secretary of State failed to take into account that the CROW Act did not confer on the public any "right to roam" over land such as Hinton Park; (v) that the decision to confirm the Designation Order should be quashed (in part) because the Secretary of State had found, contrary to the evidence, that the Estate had a "track record of considering and granting access to other nearby areas within the same tract of 'heath associated estates'"; and (vi) that the decision to confirm the Designation Order (in part) should be quashed because the Secretary of State had attached importance to views into Hinton Park from the A35 and other roads.
33. Those grounds were developed (and grounds (i), (ii) and (iii) were re-ordered) in the skeleton argument filed on behalf the Secretary of State on 20 February 2006 – again, before the enactment of the 2006 Act. It can be seen that they raise two issues of principle: (A) what meaning should be given to the phrase "natural beauty" in section 5(2)(a) of the 1949 Act – and, in particular, is that phrase to be given an expanded meaning in the light of section 114(2) of the Act – and (B) what meaning should be given to the phrase "opportunities . . . for open air recreation" in section 5(2)(b) of the 1949 Act – and, in particular, is it necessary that opportunities for open air recreation on or over the land to be designated should exist at the time when the decision to designate is made, or is it enough that such opportunities might exist in the future. If the judge were correct to hold (as he did) that it was necessary that opportunities for open air recreation should exist at the time when the decision to designate was made, then there is the further issue (specific to the facts in this case) whether such opportunities did exist at the relevant time. It is in that context that it becomes necessary to consider the grounds summarised under (iv), (v) and (vi) in the preceding paragraph.

Opportunities for open air recreation

34. It is, I think, convenient to consider, first, whether the judge was correct to hold that the inspector gave too wide a meaning to the criterion "opportunities . . . for open air recreation". As the judge pointed out, the inspector had addressed this criterion in Appendix 2 to his report. In particular, the inspector had asked himself "how far can 'potential opportunities' be taken into account in areas currently without major areas of current open access or substantial networks of rights of way?". At paragraph 9 in Appendix 2 the inspector had observed:

"9 It seems to me inherent in the term 'opportunities for open-air recreation' that consideration needs to be given not only to existing conditions but also to appropriate assessment of the potential of land with qualifying natural beauty to provide for additional forms of recreation in the future. I therefore have no difficulty in agreeing with the Agency's boundary setting criterion 2c that areas should be included if they 'provide or are capable of providing a markedly superior recreational experience'. The issue is what factors need to be considered in making a judgment about an area's 'capability' to do so."

35. The judge commented (at paragraph [71] of his judgment) that the estate owners did not take issue with that approach. They accepted that "it was inherent in the term 'opportunities' that one could look to the future, and that consideration was not limited to the present facilities for open air recreation, for example the existing network of footpaths and bridleways." He went on:

"71 . . . That was undoubtedly correct, given the powers in the other parts of the Act, for example to create new public rights of way, to promote long distance routes for walkers and riders and to make agreements for public access to open country."

36. At paragraph 10 of Appendix 2 the inspector had set out his understanding of the position taken by the Agency on the question how far potential opportunities were to be taken into account. As he put it:

"10 The Agency's general view is that there is a direct relationship between the outstanding landscape resource and the recreational experience. In other words, an existing or potential markedly superior recreational experience flows from the degree to which the area offers the ability to gain enjoyment and understanding of the character and special qualities of the nationally-important landscape setting. While this must be so, it does [not] assist very far in determining what is required to demonstrate that an area does in fact offer, or is capable of offering, a markedly superior recreational experience."

The context requires, as it seems to me, the negative which I have added to the last sentence: the word "not" does not appear in the original text. And, in passing, it may be noted that the Agency's view (as recorded by the inspector) that opportunities for open air recreation – "an existing or potential markedly superior recreational experience" – may be found in the degree to which the area "offers the ability to gain enjoyment and understanding of the character and special qualities of the nationally-important landscape setting" seems to have been given force in the new subsection – subsection (2A) of section 5 of the 1949 Act - which requires that, when applying subsection (2)(b) of that section in relation to an area, there is to be taken into account "the extent to which it is possible to promote opportunities for the understanding and enjoyment of its special qualities by the public".

37. At paragraph 11 of Appendix 2 the inspector had referred to material produced by the Agency relating to the area of search for the South Downs National Park (3504/6). He described as helpful a list of thirteen factors, included in that material, which the Agency had used (in that context) "to assess opportunities for a markedly superior recreational experience in the various landscape character areas". Those factors included "Current use of area and future recreational capacity" and "Potential for improving recreation provision with possible changing land uses". He commented, at paragraphs 13 and 14 of Appendix 2:

"13. The view of Hinton and Avon Tyrrell Estates was that while consideration can be given to realistic potential facilities, vague or unrealistic aspirations will not suffice. However, at times some objectors appeared to adopt a very narrow approach, for example to rule out any facilities not already programmed for implementation, or not specifically identified by the Agency as likely candidates for adoption by a future NPA.

14. I consider this an unrealistic and excessively conservative approach. The Concise Oxford dictionary defines 'opportunity' as 'a chance or opening offered by circumstances'. It does not require one to be too 'speculative' to recognise that the circumstances surrounding the realisation of recreational potential can and do change, but that some forms of change are more likely to occur than others, having regard to particular local conditions."

The inspector did not, as I understand those paragraphs, reject the view that "vague or unrealistic aspirations will not suffice". It was the "very narrow approach" – ruling out facilities not already programmed for implementation or not specifically identified as likely candidates for adoption – that he had dismissed as "unrealistic and excessively conservative".

38. The inspector had gone on, at paragraph 15 of Appendix 2, to identify the question which, as he thought, should be posed in relation to "potential opportunities":

"Is it feasible to conclude that the area's potential scope to provide a markedly superior recreational experience (based upon and complementing the landscape character and quality of the area) could be achieved within a reasonable timescale after designation, without the application of unrealistic levels of resources, and without interfering excessively with other competing interests?"

He observed, at paragraph 16, that "a broad, practical and common sense conclusion is needed about the ways that an NPA (or independent landowners in a designated National Park) might act within the circumstances of the particular tract of land".

39. The inspector's observations and conclusions in Appendix 2 to his report, in relation to the question "how far can 'potential opportunities' be taken into account in areas currently without major areas of current open access or substantial networks of rights of way?", were carried forward into his consideration, in the body of the report, of the question whether the section 5(2)(b) criterion (opportunities for open air recreation) was met in relation to the individual areas in contention – and, in particular, were met in relation to Hinton Park: paragraph 27 of Appendix 2.
40. As I have said, the judge took the view (at paragraph [77] of his judgment) that paragraph 4.192 of the inspector's report contains "the only substantive discussion in the Inspector's report of the section 5(2)(b) criterion in so far as it relates to the claimant's land". I agree with that view. Paragraph 4.192 is set out earlier in this judgment, but it is convenient to set it out again. It can be seen to contain six distinct propositions (which I have identified as [A] to [F]), and a conclusion (introduced by the words "I do not consider . . ."):

"4.192 Although [A] there is little public access to this particular section of the area within the Designation Order south west of the perambulation [B] it is not necessary for such access to exist across every part of a qualifying tract. [C] The estate has a track record of granting and considering access to other nearby areas within the same tract of 'heath-associated estates' landscape type although [D] it has expressed a current desire not to provide access to the area in contention other than, as now, to the Hinton Admiral parklands on special occasions. However, [E] circumstances can change and, [F] given the quality, scale and tranquillity of the landscape resource here, I do not consider it unreasonable to conclude that the general question I have posed in relation to 'potential opportunities' for open-air recreation offering a markedly superior recreation experience (at paragraph 15 of Appendix 2) could be answered in the affirmative. "

41. Propositions [A] – little existing public access – and [D] – the estate's current wish to deny access - are not, I think, controversial. The inspector had accepted the evidence of Ms Reynolds to that effect. Propositions [B] and [E] – in the general terms in which they are expressed – are self-evident and not in dispute. Nor is it in dispute that Hinton Park offers a landscape of "quality, scale and tranquillity" – proposition [F]. It may be said that that is likely to have been the objective of the Meyrick family in establishing a parkland setting for their home.
42. As I have said, the judge held that proposition [C] was based on a mistaken view of the facts: there was no "track record" of the Hinton estate granting access to "other nearby areas within the same tract". He reached that conclusion on the basis of Ms Reynolds' evidence: in particular, that at paragraph 8.74 of her proof of evidence, which, as he said, was not altered in any way by oral evidence at the inquiry. The judge's conclusion is the subject of what, I think, may fairly be described as a muted challenge in paragraph 55 of the skeleton argument filed on behalf of the Secretary of State in this Court:

"55. However Sullivan J failed to refer in this part of his judgment [paragraph [80]] to the Inspector's finding that the Estate did currently, and intended to continue, to provide access to the area in contention including Hinton Park albeit only 'on special occasions' (see para. 4.192 of the Inspector's report). That was evidence which supports a finding of a 'track record of granting access' if not to other nearby areas then actually to Hinton Park itself. The Respondents have adduced no evidence to suggest that the Inspector's finding as to the Estate providing access to Hinton Park and other parts of its land on special occasions was erroneous or based on no evidence."

The inspector did not identify the evidential source for his view that the estate owners are content to provide access "as now" to the Hinton Admiral parklands "on special occasions"; and counsel were not able to assist us in that respect. But I am content to accept that, from time to time and "on special occasions" the Meyrick family are happy to invite others to share in the enjoyment of the parkland surrounding their home. Nevertheless, the evidence of Ms Reynolds (at paragraph 8.79 of her proof of evidence) was that: "The role of the parkland is to provide the setting to the Grade I Listed house and to provide the private gardens to the family home". In my view, when read in the context of paragraph 4.192 of the inspector's report, it is clear that the reference to "a track record of granting . . . access to other nearby areas within the same tract of 'heath-associated estates' landscape type" was not founded on occasional access – from time to time and "on special occasions" - to the Hinton Admiral parklands. For my part, I would hold that the judge was entitled to conclude that there was no "track record" of the Hinton estate granting access to "other nearby areas within the same tract". Proposition [C] in paragraph 4.192 of the inspector's report was based on a mistaken view of the facts.

43. The inspector's conclusion, which he expressed in somewhat tentative terms ("I do not consider it unreasonable to conclude . . .") was that the question identified in paragraph 15 of Appendix 2 of his report - whether the area's potential scope to provide a markedly superior recreational experience (based upon and complementing its landscape character and quality) could be achieved within a reasonable timescale after designation, without the application of unrealistic levels of resources, and without interfering excessively with other competing interests – "could be answered in the affirmative". The judge held that that conclusion could only be supported (if at all) on the basis that the test of "potential scope" went well beyond that contemplated by the legislature when it enacted section 5(2)(b) of the 1949 Act in the terms that it did – "opportunities . . . for open-air recreation".
44. In my view the judge was plainly correct to hold that the inspector had failed to explain how it could be said – absent the willingness of the Estate to afford public access to Hinton Park or some identifiable means of imposing rights of access - that the Park offered, or was capable of offering, some "markedly superior recreational experience", even if that expression could (under the legislation as it stood before the enactment of the 2006 Act) be understood as meaning "the ability to gain enjoyment and understanding of the character and special qualities of the nationally-important landscape setting". As I have said, he observed, at paragraph [82] of his judgment:

"[82] . . . Absent any track record of granting access, absent any 'current desire' to do so, and absent any prospect of the public being able to assert any rights under CROW, what was left other than (as the claimants put it) 'vague aspirations'?"

45. In reaching that conclusion, the judge had explained, at paragraph [74] of his judgment, that:

"[74] . . . in deciding in the somewhat convoluted final sentence of paragraph 4.192 that it was not unreasonable to conclude that the general question posed in relation to 'potential opportunities for open air recreation' (my emphasis) in paragraph 15 of Appendix 2 could be answered in the affirmative, the Inspector was neither using the statutory language, nor was he answering the simple question: 'Does this area have potential (or scope) to provide a markedly superior recreational experience'; but instead he was considering whether it was feasible to conclude that an area's 'potential scope' to provide a markedly superior recreational experience could be achieved within a reasonable timescale after designation. Whether one chooses to translate the statutory criterion in relation to any particular area as 'the potential' it affords for open-air recreation, or 'the scope' it affords for open-air recreation, rather than 'the opportunities it affords for open air recreation' may not matter overmuch, but what one should not do is water down the statutory requirement by applying a vaguer test such as 'potential scope' or 'potential opportunities'."

And he had accepted (ibid) that:

[74] . . . these criticisms of the Inspector's approach to paragraph (b) in subsection 5(2) might be regarded as merely academic if he had, in his report, clearly explained why the claimant's land did afford opportunities for open air recreation."

But, on testing "the Inspector's approach in principle by reference to his approach in practice in respect of the claimant's land" by looking at grounds (3) to (6) of the challenge which was before him, the judge found that there was no explanation which met that need. In my view he was correct in that view.

46. Ground (3) of the challenge – the CROW Act point – is reflected in ground (iv) in the appellant's notice in this Court. The judge had accepted (at paragraph [81] of his judgment) that the inspector had not, in fact, relied on the CROW Act as a source of public rights of access over Hinton Park. It has been common ground that that Act does not create rights over parkland. The Secretary of State submits that the full extent of the judge's finding in this context was that "the agreed absence of any CROW rights over Hinton Park is in someway illustrative of what he thought was the erroneous application of a 'watered-down' test in relation to opportunities". It is said, at paragraph 47 of the Secretary of State's skeleton argument, that:

"47 . . . there is in fact no rational basis upon which it can be contended that the 'opportunities for open-air recreation' criterion in section 5(2) of the 1949 Act is to be limited by (i) the existence or otherwise of CROW 'access land'; and/or (ii) reference to the definitions of 'access land' in the CROW. The two Acts have very different purposes. One source of access rights can be found in the measures taken under the CROW but others exist, such as public rights of way, etc."

So, it is submitted, no adverse inference can be drawn from the Secretary of State's approach which rightly rejected the absence of CROW Act rights as determinative of the "opportunities . . . for open air recreation" criterion.

47. In my view there is no substance in this ground of appeal. I can find nothing in the judge's reasons which suggests that he did draw any adverse inference from the inspector's approach to the absence of CROW Act rights in relation to Hinton Park. The judge did no more than point out that reliance could not be placed on the CROW Act to establish or impose public rights of access. The relevant passages in his judgment are at paragraphs [81] and [82]:

"[81] That leaves the Inspector's proposition that 'circumstances can change' . . . While I accept [counsel's] submission that the Inspector did not erroneously rely on CROW in deciding whether the claimants' land afforded "potential opportunities for open air recreation", neither did he reject the claimants' evidence that CROW could not be relied upon for this purpose at Hinton Park: see paragraph 8.77 of Ms Reynolds' evidence, and paragraph 4.116 of the report.

[82] . . . Absent any track record of granting access, absent any 'current desire' to do so, and absent any prospect of the public being able to assert any rights under CROW, what was left other than (as the claimants put it) 'vague aspirations'? As a general proposition, the assertion that "circumstances can change" cannot possibly be gainsaid, but absent a realistic assessment of the prospects for change in any given set of circumstances, the general proposition cannot, by itself, justify a conclusion that criterion (b) in subsection 5(2) is met in respect of any particular area. . . ."

If the CROW Act did not provide opportunities to establish or impose public rights of access, it was necessary to find the opportunities elsewhere. The thrust of the judge's criticism of the inspector's reasoning in this context is that (other than the estate owner's supposed "track record") the inspector did not explain from where he thought those opportunities would come. He was left relying upon "vague aspirations".

48. Ground (4) of the challenge – the "track record" point – is reflected in ground (v) in the appellant's notice in this Court. I have already explained why I take the view that the judge was entitled to hold that the inspector's view that "The estate has a track record of granting . . . access to other nearby areas within the same tract of 'heath-associated estates' landscape type" was based on a mistaken appreciation of the facts. The Secretary of State seeks to overcome that finding by a submission that the judge was wrong to treat the error of fact which he had identified as material. We were referred to the observation of Lord Justice Henry in R v Independent Television Commission, ex p Virgin Television (unreported, The Times 17 February 1996) cited by Lord Justice Carnwath, giving the judgment of the Court, in E v Secretary of State for the Home Department, R v Secretary of State for the Home Department [2004] EWCA Civ 49, [56]; [2004] QB 1044, 1068G-H, for the proposition (affirmed in E and R (ibid [66]; 1071F) that the mistake of fact, to be legally relevant, must have played a material (but not necessarily decisive) part in the tribunal's reasoning.
49. The proposition is not in doubt. But it provides no assistance to the Secretary of State in the present case. The inspector's view that the estate owners had a track record of granting access to other nearby areas within the same tract was, plainly, material to the conclusion which he reached in paragraph 4.192 of his report. Indeed, on analysis, it may be said to be the predominant factor (other than the aphorism "circumstances can change") which enabled him to conclude that the "potential opportunities" were more than speculative. Absent that mistaken view of the facts there was really nothing to suggest that there was any potential for public access to Hinton Park.
50. Ground (5) of the challenge – the visual opportunities point – is reflected in ground (vi) in the appellant's notice in this Court. It is said that the judge was wrong to reject the inspector's finding that views from the A35 and other minor roads afforded "opportunities for open air recreation". The inspector's finding is at paragraph 4.191 of his report. The passage is set out earlier in this judgment, but it is convenient to cite it here:

"4.191 . . . The various elements of this landscape provide the foreground for those travelling through the area on the A35 and the various other minor roads, including that leading to Forest Lodge, and there are also occasional longer distance views into the landscape. These visual opportunities all add greatly to public enjoyment of the area by considerably extending the experience of being in the Forest."

51. As I have said, the judge thought that "most, if not the whole" of paragraph 4.191 was concerned with the natural beauty criterion, rather than with opportunities for open air recreation. At paragraphs [75] and [76] of his judgment he said this:

"[75] . . . [Counsel for the Secretary of State] accepted that motorists enjoying views from the A35 and other minor roads would not be enjoying "open air recreation" for the purposes of section 5(2). He submitted that the visual attractiveness of the land of Hinton Park from the A35 and other roads was "an important part of the background" and that, particularly on other minor roads, including that leading to Forest Lodge within the park, there could be others - walkers, riders, on horses and bikes - who could be enjoying open air recreation. Unfortunately, paragraph 4.191 does not distinguish between, for example, walkers and riders on the minor roads (about whom there appears to have been no detailed information.. . . ), and others travelling through the area, including motorists on the A35.

[76] While I accept [counsel's] submission that the Inspector did not erroneously believe that motorists enjoying the views from their cars on the A35 would be engaging in "open air recreation", and would not therefore have allowed the application on ground (5) if it had stood alone, I am satisfied that reading paragraph 4.191 as a whole (and in conjunction with paragraph 4.190) it is not primarily, if at all, concerned with whether the claimant's land affords 'opportunities for open air recreation' but rather with its visual attractiveness as high-quality landscape, which is quite a different matter . . ."

52. It is important to note the judge's observation that it was accepted on behalf of the Secretary of State that motorists enjoying views from the A35 and other minor roads would not be enjoying "open air recreation" for the purposes of section 5(2). Indeed, as appears from paragraph [76] of his judgment, the judge accepted counsel's submission that the inspector did not fall into the error of thinking otherwise. Nevertheless, it is said in this Court that: "The Inspector was considering a member of the public enjoying views of the landscape from roads (not just the A35 but also other minor roads) both within and outside the NFNP and enjoying views of the landscape that makes up the NFNP including Hinton Park" (paragraph 64 of the Secretary of State's skeleton argument).
53. In that context, reliance is placed on evidence given at the inquiry by Ms Julie Martin BA, MA, MLI, MRTPI, MIEEM on behalf of the Countryside Agency. At paragraphs 29 and 30 of her proof of evidence Ms Martin had said this:

"29. The tract of country that includes Hinton Park makes an important contribution to visitors' experience of the New Forest. Although the Park itself does not include rights of way or access land, the parkland and woodland can be seen and enjoyed from surrounding areas, notably from Ringwood Road and the A35. In addition, in the southern and eastern parts of the objection area, around Hinton House and Beckley, there are a number of footpaths, a bridleway and quiet rural lanes which offer excellent opportunities for walking, riding and cycling and for the enjoyment of the special qualities of the New Forest. The footpath network provides links to the south, giving the urban residents of Highcliffe easy access to these recreational opportunities.

30. Therefore in the Countryside Agency's view, the Hinton Park area fully meets the recreational criterion for inclusion in the National Park."

In my view the judge was right to find little or no assistance in those paragraphs. It is, I think, clear that, in the second sentence of paragraph 29, Ms Martin is referring to views from roads: but there is nothing to indicate whether those roads are used by walkers and riders, rather than by motorists. It is clear, also (when the second and third sentences of paragraph 29 are read together), that there is no public access over the footpaths, bridleway and quiet rural lanes to which Ms Martin refers in the third sentence. They might offer "excellent opportunities for walking, riding and cycling and for the enjoyment of the special qualities of the New Forest" if they were - or might reasonably be expected to become "within a reasonable timescale after designation, without the application of unrealistic levels of resources, and without interfering excessively with other competing interests (to adopt the test in paragraph 15 of Appendix 2 to the report) – open for use by the public; but there is nothing to suggest that that is other than a speculative possibility.

54. Ground (6) of the challenge – the land at the boundary point – was not thought by the judge to add anything of substance to the other grounds. It has not given rise to a separate ground of appeal.
55. It follows that I would hold that the judge was correct to hold that the estate owner's challenge to the order was entitled to succeed on the basis that, on the material before the Secretary of State at the relevant time, the criterion in section 5(2)(b) of the 1949 Act – opportunities for open air recreation – had not been met.
56. That conclusion makes it necessary to consider whether – on the basis that the law has been changed by the 2006 Act - this Court should, nevertheless, vary the judge's order so as to delete the direction that the order dated 1 March 2005 be quashed so far as it concerns the area of land in contention in these proceedings. As I have said, the Secretary of State invites the Court to take that course for the reasons set out in his supplementary skeleton argument dated 27 October 2006.
57. If I were persuaded that, in applying section 5(2)(b) of the 1949 Act to the facts found by the inspector, the Secretary of State, taking into account the matters which section 5(2A)(b) now requires to be taken into account ("the extent to which it is possible to promote opportunities for the understanding and enjoyment of [the area's] special qualities by the public") would, necessarily, reach the conclusion that the statutory criterion was met, I would see much force in the submission that this Court should recognise that a quashing order can now serve no sensible purpose. But I am not so persuaded. As I have sought to point out, the lacuna in the inspector's report, in the present context, is that he failed to explain why he took the view that the opportunities for open air recreation, in relation to Hinton Park, went beyond "vague or unrealistic aspirations". To my mind, it is far from self evident that that lacuna would no longer exist if the section 5(2)(b) test required consideration of "the extent to which it is possible to promote opportunities . . .". In that context, the question, as it seems to me, would be whether the inspector had explained how it is possible to promote opportunities for the understanding and enjoyment of the area's special qualities by the public in the absence of public access. Without seeking to suggest an answer to that question – which would be outside the proper scope of this appeal – I am satisfied that the estate owners are entitled to require that it be addressed before the Designation Order is varied by the Secretary of State.

Natural beauty

58. Given that I would dismiss the appeal – and uphold the judge's order - on the ground that that the judge was correct to hold that the estate owners' challenge was entitled to succeed on the basis that the criterion in section 5(2)(b) of the 1949 Act had not been met, I do not think that it would serve any useful purpose to extend this judgment by addressing the question whether the judge was also correct to hold that the challenge was entitled to succeed in relation to the natural beauty criterion in section 5(2)(a). On any future consideration of the question whether the Designation Order should be varied, the Secretary of State will be required to take into account the area's wildlife and cultural heritage – section 5(2A)(a) of the 1949 Act – and will have regard to section 99 of the 2006 Act. Without intending to prejudge any issues which may arise in that context, it seems to me that there is force in the submissions advanced in paragraphs 21 and 22, and 26, of the Secretary of State's supplementary skeleton argument dated 27 October 2006.

Conclusion

59. I would invite the parties to consider whether the order of 3 November 2005 should be varied so as to direct (in terms) that it is the Designation Order (as well as, or instead of) the order of 1 March 2005 that is to be quashed in part. Subject to that, I would dismiss this appeal.

Lord Justice Wall:

60. I agree. There is nothing that I can usefully add.

Lord Justice Lloyd:

61. I also agree.