QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|MEYRICK ESTATE MANAGEMENT LTD AND OTHERS||(CLAIMANTS)|
|SECRETARY OF STATE FOR ENVIRONMENT, FOOD & RURAL AFFAIRS||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
appeared on behalf of the CLAIMANTS
MR DAVID ELWIN QC & MR JAMES MAURICI (MR DAVID BLUNDELL)
(instructed by THE TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
Crown Copyright ©
MR JUSTICE SULLIVAN:
"1. 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 National Parks and Access to the Countryside Act 1949?
2. Should the boundary be altered to include or exclude any areas specifically referred to by the objectors to the Order, bearing in mind the criteria and purposes of designation?"
The Inspector's reference to the "criteria and purposes of designation" is a reference to section 5 of the Act, as amended by the Environment Protection Act 1990 and by section 61(1) of the Environment Act 1995 ("the 1995 Act"):
"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."
"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."
"4.165 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 its 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."
"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.
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.
4.192 Although there is little public access to this particular section of the area within the Designation Order south west of the preambulation 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.
4.193 Overall, therefore, I recommend inclusion of this area in the NFNP."
The grounds of challenge
(1) In not applying the statutory test in paragraph (b) of subsection 5(2) in examining whether there were "opportunities for open-air recreation", but a different test of whether there were "potential opportunities for open-air recreation".
(2) In not applying the statutory test in paragraph (a) of subsection 5(2), "natural beauty", but the extended definition applicable under section 114(2) only to the management of National Parks under subsection 5(1) once they had been designated under subsection 5(2).
(3) In failing to take into account the fact that the Countryside and Rights of Way Act 2000 ("CROW") did not confer upon the public any "right to roam" over land such as Hinton Park.
(4) In concluding, contrary to the evidence, that the Hinton Estate had a "track record of considering and granting access to other nearby areas within the same tract of 'heath associated estates'".
(5) In attaching importance to views into Hinton Park from the A35 and other roads, when such "visual opportunities" did not fall within the meaning of "opportunities for open air recreation" in subsection 5(2)(b).
(6) In reaching an irrational conclusion that criterion (b) in subsection 5(2) did not have to apply to disputed tracts of land at the outer boundary of the proposed National Park.
Ground (2) Natural Beauty
"The essential requirements of a National Park are that it should be of great natural beauty, high value for recreation and substantial continuous extent ... Lastly there is merit in variety; and with the wide diversity of landscape that is available in England and Wales, it would be wrong to confine the selection of National Parks to the more rugged areas of mountain and moorland, and to exclude other districts which, though of lesser grandeur, have their own distinct beauty ..."
"... areas of exceptional natural beauty. They contain important wildlife species and habitats, many of which have been designated as being of national or international interest. But the parks are also living and working landscapes and over the centuries their natural beauty has been moulded by the influence of human activity. Their character is reflected in local traditions which have influenced farming and other land management practices. It is also reflected in the local building material and vernacular style, monuments and landscape, often of archaeological or historical significance, and in the words, customs, crafts and art which mark the individual characteristics of each Park.'"
Paragraph 11 of the Circular gives National Park Authorities guidance on "identifying the nature of the special qualities" of a National Park and says:
"Particular emphasis should be placed on identifying those qualities associated with their wide open spaces, and the wildness and tranquillity which are to be found within them."
"LUC was appointed to establish the NFHA boundary and their starting point was that the revised boundary should:
'incorporate essential grazing land as well as the best of the landscape, around the forest's preambulation...'
The two principal criteria for the NFHA boundary drawing exercise were:-
(a) to incorporate the land of outstanding national importance for its natural beauty, including flora, fauna, geological and physiographical features, and elements that arose from human influences on the landscape, including archaeological, historical, cultural, architectural and vernacular features. (emphasis added)(b) To incorporate essential grazing land. This was to include peripheral farmland which was or had recently been used as grazing land in conjunction with the New Forest, or which was part of an area which could be suitably utilised for grazing relating to the New Forest ... so as in aggregate to include a sufficient pool of land to provide an adequate supply of back-up land and the continued functioning of the historic dispersed pastoral regime relating to New Forest commoning in the long term..."
Ms Reynolds commented in paragraph 3.17 of her proof of evidence:
"Unlike section 5(2) of the Act, these two NFHA criteria are not conjunctive. In other words, there is no necessity for land within the NFHA to satisfy both criteria: the satisfaction of just one is enough. Indeed, LUC identified that there were 'some areas where the landscape case is not strong, or which are of a landscape type not proposed for inclusion, which could be added on the grounds of their value as back-up grazing alone'. (CD206)"
"* Areas of high landscape quality should be included within the area of land identified for designation (criterion (a)').
* Areas to be included may be of differing landscape character; where this is so quality will be the key determinant rather than uniformity.
* Areas which provide or are capable of providing a markedly superior recreational experience should be included ('criterion (c)').
* Land and settlements which contribute to the rural economy and community life should be included.
* Features of scientific, historical or architectural value situated on the margins of the National Park should be included where practicable."
"* There is evidence that in the past, natural beauty has been regarded as the primary criterion for designation, which must be satisfied for all areas. Other factors (including opportunities for outdoor recreation) have tended to be regarded as secondary.
* "It can be seen that the natural beauty criterion effectively encompasses both of the criteria that were used to identify boundaries for the New Forest Heritage Area, that is natural beauty and essential grazing land. The principal 'additional' criterion is opportunities for open-air recreation.
* "The key question for the boundary study is how far the area of national importance for natural beauty and recreation extends. We assume that all areas included should meet both criteria, in varying degrees."
Ms Reynolds added:
"* The issue of whether land peripheral to the New Forest core (ie land outside the New Forest perambulation) satisfies the access designation criterion was assessed in terms of how that peripheral land could service and accommodate the Core, rather than whether this peripheral land satisfies the access criterion in its own terms. The approach states: 'The inclusion of marginal areas within the National Park offers new scope to alleviate pressures on the forest core ...
"* Existing and potential opportunities for understanding and enjoyment of the area's special qualities" (emphasis added) was considered to be a boundary designation factor.
"* In general, the approach (to National Park designation) was a more generous and inclusive one that was used in defining the boundary for the New Forest Heritage Area ..."
"8.77 The Countryside Agency's revised approach to boundary-making is to include areas of historical value. This is misguided as marginal areas are inappropriately included, based on a flawed understanding of the section 5(2) and the meaning of natural beauty. Hinton Park is such an area and should not be included within the New Forest National Park on account of its historical designation for the house (Grade I listing) and the parkland.
8.78 The Hinton Estate parkland and Grade I Listed house lie within the NFHA. However, as previously noted, the NFHA designation criteria are very different to the section 5(2) designation criteria. Consequently, and at the very least, the inclusion of Hinton Admiral House and the Hinton Park parkland requires consideration of its ability to satisfy the National Park designation criteria, and not just mere inclusion within the Designation Order area simply on the basis of its inclusion within the NFHA.
8.79 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. It would be incorrect to open the immediate grounds for public access for reasons already explained, and because the CROW Act deems parkland and gardens to be 'excepted land'.
8.80 Furthermore, the parkland does not exhibit the natural appearance of the adjacent woodland and countryside. By contrast, the parkland is a designed landscape and created for ornamental beauty and the control of nature, far removed by design from the remote wilderness of the wider landscape for which the National Parks are designated. The Hinton parkland has been managed with these roles and objectives for over a century and to change this approach would be historically inappropriate. The parkland therefore is neither suitable, nor appropriate, in relation to the qualities of natural beauty necessary for National Park designation."
"In contrast, the Avon Tyrell parkland and House has been managed by 'UK Youth' since 1949 and contains a less clearly designated parkland around the house, with the immediate gardens contained in part by walls. These gardens lie close to the fabric of the house, and the outer perimeter of the lawns are enclosed by woodland belts. As a consequence, UK Youth (pursuant to its own objectives) has been able to introduce footpaths away from the gardens and house and within the woodlands. This has changed, although not degraded, the historic fabric of the parkland."
"4.111. The Landscape Assessor's report deals with the following general conceptual matters raised by the objector:
- While nearly all landscape in England is heavily influenced by Man, natural beauty is not defined in section 114(2) of the Act in a way which incorporates the cultural or historical influence of Man in itself. Under the 1949 Act, as amended, the essence of natural beauty is that it must apply to countryside, it must be principally 'visible' and 'natural' (derived from nature) and it must be outstanding. Insufficient attention to these requirements has led the Agency into giving too much weight to inappropriate factors such as history, cultural associations, commoning considerations, archaeology and nature conservation interests (such as the presence of a rare species or habitat) even where this is unrelated to scenic landscape beauty. Such factors may be relevant to the process of landscape character assessments but they are not relevant to judgments on the quality of natural beauty required under the Act. In considering designation of the NFNP the Secretary of State must confine herself to the strict terms of the designation criteria in section 5(2). The extended definition of natural beauty in section 114(2) only relates to the statutory purposes set out in section 5(1), as does the reference to 'cultural heritage' in section 5(1), although flora and fauna may be relevant to designation if they have a major influence on the landscape. This is a very different situation from that applying in Scotland where more recent (and perhaps arguably more 'modern') legislation in the National Parks (Scotland) Act 2000 provides at section 2(2)(a) that an area may be designated for 'outstanding national importance because of its natural heritage or a combination of its natural and cultural heritage'.
- Some of the boundary-setting criteria in table 2 of CD104 also extend beyond the scope of the designation criteria, eg the following references:- at 2(d) to whether settlements contribute to the rural economy and community life of the Park and to its special qualities and purposes; at 2(g) to whether or not towns contribute to the character and purposes of the Park; at 2(j) to including features of historic or architectural value at the margins ...
- CD126 states at para 4.2.1 that 'in general the approach (to developing the boundaries) of the National Park was a more generous and inclusive one than was used in defining the boundary for the New Forest Heritage Area'. However, in reality the tests should be harder and the area more tightly defined."
"Historical and cultural (ie commoning) factors do not form part of the natural beauty criterion and therefore should not be used to support inclusion of land at Hinton Park."
She said that that point had been addressed by Mrs MacIlwaine, another of the witnesses called by the Agency, and so would not be covered in her proof of evidence.
"Hinton Park is historic parkland set within the heath associated estates landscape type that occurs in a number of areas around the New Forest preambulation. The objection land, which lies within the New Forest Heritage Area, comprises extensive areas of mixed woodland within the valley of Sheers Brook to the west, parkland forming the setting to Hinton Admiral House (listed Grade I), and a mosaic of mainly arable farmland and large blocks of woodland east and south of the A35.
25. The landscape in this area is very clearly part of the New Forest. Heath associated estates landscape are described in the 'New Forest District Landscape Character Assessment' as enclosed wooded estate landscapes, often on undulating ground, around the fringe of the Forest. They are closely associated with former heathland and still retain a healthy character. Pine and oak plantations are interspersed with tracts of intensively farmed land consisting of large fields enclosed by hedgerows and woodland edges. All these characteristics occur within the objection area, the landscape quality (ie condition) of which is very high, with few if any detractors. Because of the high degree of woodland cover, there is also a strong sense of being 'in the Forest'.
26. Hinton Park itself is identified in 'New Forest District Landscape Character Assessment' as being historic parkland, which means that its character differs, at a detailed level, from that of surrounding areas. However, historic parkland is also characteristic of many parts of the New Forest ... The landscape quality of the parkland (which can be seen from the A35) is high, and it is included on the Hampshire Register of Historic Parks and Gardens. English Heritage's Grade I listing of Hinton Admiral House indicates that it is of outstanding historical and architectural importance.
27. Much of the estate and its parkland have Forest rights of grazing attached and we note that the estate also lets backup grazing to commoners, at Poors Common and Burton Common just to the north and west of the objection area. In this sense it is an integral part of the historic dispersed pastoral system that created and helps to maintain New Forest character.
28. All these factors led the Countryside Agency to take the view that land around and within Hinton Park merits inclusion in the New Forest National Park on grounds of natural beauty." (my emphasis).
"12. As the Agency has already made clear to this Inquiry, the Agency shares Ms Reynolds' view that National Park purposes come into effect once a National Park has been designated. National Park purposes, as defined in the Environment Act 1995, do not form part of the statutory designation criteria. The Agency has not, as Ms Reynolds states, 'conflated the purposes and duties of the National Park Authority ... with the criteria for designation ...'
14. The 1949 Act, which defines the statutory criteria for National Park designation, does not exhaustively define 'natural beauty' or 'opportunities for recreation'. The way in which the Countryside Agency interprets and applies the statutory National Park criteria is explained in ... (CD/104). The Agency has not failed to appreciate that in assessing whether land should be included in the National Park, both of the statutory criteria need to be met. The Agency's position is that while both of the statutory criteria need to be met, they do not need to be satisfied to the same extent in every tract of country.
15. The Agency does not accept Ms Reynolds' assertion that it has 'adopted an understanding of 'natural beauty' which goes beyond its true meaning by incorporating cultural and historical components'. Section 114 of the 1949 Act sets parameters for the definition of 'natural beauty' when it states that it should '... be construed as including references to ...' but this does not mean that it should be limited only to the factors listed.
16. According to statute, natural beauty embraces flora, fauna, geological and physiographical features. Guidance and precedent [reference is made inter alia to Circular 12/1996] clearly indicate that historical, cultural, architectural and vernacular features form part of natural beauty, as stated in Table 1 of ... (CD/104). This is why landscape, ecological, historical and cultural considerations, ie commoning, were each considered in turn in section 3 and 5 of the 'New Forest National Park Boundary Study' (CD/126), [and] in (CD/104). ... All of these factors (ie landscape, ecological; historical and cultural) were assessed as part of the 'natural beauty' criterion in identifying the extensive tract of country that meets the statutory criteria."
4.119 Hinton Park is historic parkland set within the 'heath associated estates' landscape type that occurs in a number of areas around the preambulation. The area of contention is all within the NFHA and comprises extensive areas of mixed woodland within the valley of Sheers Brook, parkland forming the setting to Hinton Admiral House, and a mosaic of mainly arable land and large blocks of woodland east and south of the A35.
4.120 The landscape here is very clearly part of the New Forest. Heath associated estates are described in the District Landscape Character Assessment as enclosed wooded estate landscapes, often on undulating ground, around the fringe of the Forest. They are closely associated with former heathland and retain a heathy character. Pine and oak plantations are interspersed with tracts of intensively farmed land consisting of large fields enclosed by hedgerows and woodland edges. All these characteristics occur within the objection area, the landscape quality of which is very high, with few if any detractors. The high degree of woodland cover imparts a strong sense of being in the Forest.
4.121 Hinton Park itself is of high landscape quality and included on the Hampshire Register of Historic Parks and Gardens. Hinton Admiral House is listed as Grade I.
4.122 In the Hinton Park area the boundary follows the clear transition in landscape character and quality that occurs south and east of Hinton and Beckley beyond which the land is adversely affected by arable intensification, transmission lines and urban fringe development.
4.123 Much of the estate and its parkland have grazing rights and some land is let to commoners. In this sense it is an integral part of the historic dispersed pastoral system."
"Table 1 on page 6 explains the Agency's approach to interpreting the statutory criteria for the NFNP, the first being natural beauty. The natural beauty criterion is interpreted in the following terms:
* 'Natural beauty' implies a landscape of outstanding national or international importance.
* It is defined to embrace flora, fauna, geological and physiographical features. Archaeological, historical, cultural, architectural, and vernacular features are also included (in accordance with guidance and precedent).
* A key concept is that of landscape quality. This is a function of distinctive character, presence of key characteristics, absence of atypical or incongruous features, and the state of repair of the landscape as well as how intact it is.
*Visual, intangible, ecological, historical and cultural characteristics, features and values are all relevant to natural beauty and landscape quality.
* In the New Forest, the historic dispersed pastoral system is a key cultural characteristic that created and helps to maintain New Forest character, and as such should be taken into account in designation."
"Several objectors (particularly ... Hinton Estates ...) commented on the way in which the Agency had defined and interpreted the natural beauty criterion. In section 1 of this report I detail the way in which the Agency reached their understanding of the criterion, as set out in Tables 1 and 2 in CD104.
3.4. Although I have found the Agency's interpretation of the criterion to be generally justified by the explanation given in the audit trail in CD301, I am not always convinced by the way in which this interpretation has been applied in defining the precise NFNP boundary.
3.6. I support the notion (as did the Agency in Table 1 of CD104), and in many of their responses to objectors) that the key primary consideration of natural beauty is the presence of outstanding landscape quality through the presence of intact and distinctive New Forest landscape character, with an absence of atypical or incongruous features. However I did not find that the Agency applied this approach consistently or with rigour in the case of the Southampton Waterside boundary of the NFNP, or around Lymington and in parts of the Avon Valley.
3.7. All the landscapes of England are heavily influenced by human activity. Bearing that in mind, natural beauty as defined in section 114(2) of the Act cannot imply pristine or completely natural landscapes or there would be no land in England that could meet the natural beauty criterion. The terms of the Act must therefore require a high degree of 'relative naturalness', accepting that the cultural influences on the landscape should be taken into account in assessing any English landscape. I agree, however, that the essence of natural beauty under the Act is that it must apply to countryside. It must be principally 'visible' and 'natural' (derived from nature) and it must be outstanding.
3.8. Hinton Estates argue that the Agency paid insufficient attention to section 114(2) of the Act, and gave too much weight to inappropriate factors, such as history, cultural associations, commoning considerations, archaeology and nature conservation interests, even where these are unrelated to landscape beauty. In my view the Landscape Character Assessment (LCA) process needs to take account of these factors, as they are important in understanding how the countryside has evolved to its present state. However, the weight to be attached to them in assessing landscape quality needs to be carefully considered if they are not to be given undue attention in reaching judgments on natural beauty under the Act.
3.9. I believe that the inextricable linking of criteria and purposes is unavoidable in considering designation of the NFNP, as the strict terms of the designation criteria in section 5(2) should be informed by the extended definition of natural beauty in section 114(2) even if the latter only relates to the statutory purposes set out in section 5(1) (as does the reference to 'cultural heritage' in section 5(1))."
"... 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.
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 preambulation ..."
"All of these factors (ie landscape, ecological, historical and cultural) were correctly assessed as part of the 'natural beauty' criterion in identifying the extensive tract of countryside that met the statutory criteria?" (my emphasis).
"The strict terms of the designation criteria in section 5(2) should be informed by the extended definition of natural beauty in section 114(2) even if the latter only relates to the statutory purposes set out in subsection 5(1)."
"References in this Act to the natural beauty of an area shall be construed as including references to its flora, fauna and geological and physiographical features."
"To incorporate the land of outstanding national importance for its natural beauty, including flora, fauna and geological and physiographical features, and elements that arose from human influences on the landscape, including archaeological, historical, cultural, architectural and vernacular features [and] To incorporate essential grazing land ..."
She had also referred to the fact that the criteria in the Agency's draft consultation report (CD104) had included, for example, the proposition that "features of scientific, historical or architectural value situated on the margins of the National Park should be included where practicable." She had argued that rather than defining a National Park boundary upon an approach to "natural beauty" that the Agency itself had said in CD104 was "more generous and inclusive" than that which had been adopted in defining the boundary of the NFHA, the test should have been harder and the area more tightly defined (see paragraph 4.111 of the Inspector's report).
"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. ... 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."
Ground (1) "Opportunities ... for open air recreation"
"* ... CROW provides guidance on types of land which are suitable and these specifically exclude parkland, gardens, improved grassland, ploughed land and land close to animal accommodation from the access regime for open-air recreation. In addition, woodland and riversides are not deemed worthy or suitable for public access rights. These areas are equally unsuitable for access in relation to the National Park designation. Hinton Park is comprised of these land types and does not contain any 'open country' as defined by the CROW Act.
* Existing opportunities for open-air recreation: there are no public rights of access over Hinton Park."
In paragraph 8.68 she said:
"Large parts of the Hinton Estate, including Hinton Park, Holmhill Lane and Allensworth, have been included within the Designation Order area notwithstanding the non-existence of public rights of way. Furthermore, as these areas comprise parkland, woodland and agricultural land they are not eligible for public access rights under the CROW Act and therefore must be questioned under their suitability under the National Park designation. The consequence is designation with no reasonable prospect of the public being able to enjoy lawful opportunities for open air recreation."
She said in paragraph 8.69 that the Agency's failure to consider the meaning of opportunities for open air recreation had resulted in an inconsistent approach to designation:
"... On the one hand, some areas have been excluded from National Park designation on the grounds of limited access [examples were given]. On the other hand, [other land, examples given had been included] ... Another example of inconsistency is the inclusion of Hinton Park parkland, an area with no existing public access."
In paragraph 8.72 she said:
"Considerable concern is felt by the estates at the prospect of providing areas of farmland for public access. It is uncertain how conflicts in the use of land will be resolved."
"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 quite 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."
"4.116 CROW indicates the current Parliamentary view about which parts of the countryside have a character that lends to open-air recreation. The 'access land' referred to in section 2(1) of CROW for the purpose of open-air recreation as defined in section 1(1) is being limited to 'open country' defined on the appropriate statutory map (predominantly mountain, moor, heath or down) or registered common land. According to the draft CROW map there is no such land or proposed land within the area that the estate seeks to exclude from the NFNP.
4.117 ... access or open-air recreation facilities should either exist now or there should be a realistic potential for them to be provided within the land to be included in the NFNP. Vague or unrealistic aspirations are not sufficient."
"(1) 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?"
The Inspector said that that issue has been raised by, among others, the claimants. In paragraph 9 he said:
"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."
"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.
15. So in my view the following question needs to 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?
16. In other words, 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."
Grounds (3)-(6) Detailed matters
"... the result of this Core-focused approach to designation has been that land with little opportunities for open air recreation or otherwise unsuitable has been proposed for National Park designation. Indeed, inclusion of land within the NFNP without adequate opportunities for open-air recreation is likely to create conflicts with the existing farming and management aspects of the estates. This is not to say that there is not land outside the New Forest Core or land within the Estates capable of providing opportunities for open air recreation. There may be areas of land within the Estates, for example Burton Common, Poors Common, Beckley Common and Shirley Common, which could be made available for public access subject to protection of their nature conservation status and interest. Indeed, the Estates specifically have made no objection to the inclusion of these areas within the NFNP."
Burton Common and Poors Common were both managed by the estate to conserve and promote their nature conservation value.