England and Wales High Court (Administrative Court) Decisions

HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES

		Sitting at: Cardiff Civil Justice Centre, 2 Park Street Cardiff CF10 1ET
		25 January 2013

Mr Justice Burton:

1. The claim arises out of a decision taken by Cardiff City Council ("the Defendant") to appropriate a plot of land in Lisvane, Cardiff to use as allotments pursuant to section 122 of the Local Government Act 1972, whereby, in material part:

"... a principal council may appropriate for any purpose for which the council are authorised by this or any other enactment to acquire land by agreement any land which belongs to the council and is no longer required for the purpose for which it is held immediately before the appropriation ...

(2A) A principal council may not appropriate under subsection (1) above any land consisting or forming part of an open space unless before appropriating the land they cause notice of their intention to do so, specifying the land in question, to be advertised in two consecutive weeks in a newspaper circulating in the area in which the land is situated, and consider any objections to the proposed appropriation which may be made to them."

2. The history is unusual in two respects:

(i) the plot is unitary and has at no time been divided, having been fenced off in 1976. But the case made by way of objection to the Defendant's decision by Western Power Distribution Investments Ltd ("the Claimant"), as adjacent land owner, was that the plot should be so divided, as to plot B, which is the majority of the land which has been laid out as will be described in allotment plots, and which remains unchallenged, and plot A, sometimes referred to as "the Blue Strip", a strip to the side of B, which the Claimant contends should be left as public space.

(ii) A and B had been acquired by the Defendant in 1948 pursuant to s 164 of the Public Health Act 1878, whereby:

"Any local authority may purchase or take on lease lay out plant improve and maintain lands for the purpose of being used as public walks or pleasure grounds, and may support or contribute to the support of public walks or pleasure grounds provided by any person whomsoever."

3. Plots A and B thus became subject to a statutory trust in favour of the public as public space. When in 1976, A and B were fenced off, as discussed, either there was a lost appropriation pursuant to s 122, which cannot be shown to have occurred (there was some time ago a substantial fire in which all possible material Council records were destroyed) or, more likely, the need for such s 122 appropriation was overlooked. On any basis the Defendant accepts and accepted that once the fact that there was no provable s 122 appropriation became clear (in the course of planning disputes between the Claimant and Defendant in 2010 and 2011), the Defendant needed and sought to make the decision which is now challenged, first by an In Principle Resolution of November 2011, and then in due course by the impugned decision of 12 July 2012.
4. There were in fact, it now appears, two planning permissions given in 1976, the first of which, dated 19 March 1976, ("the First Planning Permission"), was the only one that was known to the Defendant at the time it was taking the steps leading to the In Principle Resolution and, in due course, to the July decision.
5. The Second Planning Permission, dated 16 July 1976, was only subsequently discovered via the South Rise Leisure Gardens Society (the "Allotments Society") which has been operating the "South Rise Allotment Site" since 1976. In those circumstances it must be accepted that the relevant planning permission to be taken into account was the First Planning Permission, but in any event that Permission permitted the use of A and B for, inter alia, allotments ("Leisure Gardens").
6. What has happened since 1976 is that B, the much larger part, has been laid out with allotment plots. A contains a car park, on hard standing, with secure shared storage, used exclusively for those accessing and tending and maintaining the allotments, and the strip of land alongside the plots, containing grassy areas and trees, which has been used (and fenced in) ancillary to the allotment plots.
7. When the absence of a s 122 appropriation was discovered, the Defendant sought to put it right and made the In Principle Resolution referred to, in November 2011, resolving that there should be publication of the proposed appropriation by way of the necessary advertisements so that:

"Any objections to the proposal shall be reported back to the executive for consideration. The executive will take a final decision on appropriation following the public consultation whether the land at South Rise allotments is no longer needed as part of public trust land and open space, and if so whether it wishes to appropriate the land for allotments purposes under the Allotments Act 1925, taking account of all the material circumstances set out in this report. Any objections to the proposal will be considered transparently before a final decision is made."

8. The Claimant objected. The Claimant owns land adjacent to A and B, consisting for the purposes of this application of two reservoirs, Lisvane and Llanishen. Both are Sites of Special Scientific Interest ("SSSI"s), the former by virtue of overwintering birds and the latter by reference to waxcap fungi. As set out above, the Defendant does not object to that part of the plot A + B which has been occupied by allotment plots, ie B, being appropriated, but only objects to the appropriation of A, containing the car park (which it submits should be available to all members of the public), and the rest of the strip adjacent to the allotment plots.
9. There was some delay to the appropriation exercise because, as the Defendant contended, of its desire to seek to resolve the objections in the context of an ongoing planning dispute with the Defendant. This delay was the subject of a first judicial review proceeding, CO/0175/2012, which led to the Defendant's advertising and proceeding with the decision now challenged in these proceedings.
10. After the advertisement, the Claimant sent an "Objections Letter" dated 27 June 2012, opposing the proposal. The Allotments Society supported the proposal by its detailed submissions dated 2 July 2012. There was then a Report of the Chief Operating Officer to be presented to the members on 12 July 2012, dated 6 July 2012 ("the Report"). A "Further Objections Letter" dated 11 July 2012 was then sent by the Claimant, which resulted in an "Addendum Report" to the members by the Chief Operating Officer dated 12 July. The meeting took place on 12 July, and there is in the papers an Attendance Note dated 13 July of that meeting, made by the Claimant's solicitors ("Meeting Note"). The decision taken on 12 July 2012 is recorded as follows:

"Appropriation of land at South Rise Allotments, Llanishen Cardiff

RESOLVED:

that having taken account of both the objection and the expression of support the Site (including the Blue Strip) be appropriated for the purpose of allotment use pursuant to section 122 of the Local Government Act 1972.

Reasons

Formal appropriation of the Site including the Blue Strip to allotment use would be in the public interest of the locality and that the ongoing benefits of retaining the allotment car park and the grassed area for potential additional plots are significant when set against the likely benefits of excluding the Blue Strip from the appropriation and provided a narrow, dead-end public walking area.

Public consultation has been carried out in regard to the proposed appropriation."

11. The Claimant challenges the Defendant's decision. Plainly the decision was a matter for the Defendant, but can be challenged on judicial review grounds. Mr Mark Lowe QC for the Defendant refers to Dowty Boulton Paul Limited v Wolverhampton Corporation (No 2) [1973] 2 All ER 491; [1973] 25 P&CR 282 (CA), but, as is clear from the first instance decision to which Mr John Steel QC for the Claimant referred me, [1973] Ch 94, the decision in that case, that the Corporation was sole judge of the question as to whether the land was still required for a purpose, fell to be made by the Court within the context of a construction site, and when the Court decided that the decision was one for the Corporation, it was not addressing any of the issues raised in an ordinary judicial review context.
12. Mr Steel raises three such judicial review challenges:

(i) that the Defendant did not perform its statutory duty under s 122 (the "de facto" argument);

(ii) that the Defendant did not lawfully address whether or not Plot A was any longer required for public space –

(a) so as to reduce pressure on the two SSSIs, the two reservoirs, or

(b) consistently with its obligation under s 28G of the Wildlife and Countryside Act 1981 ("s 28G") (the "circular walk" argument);

(iii) that the Defendant relied upon and was supplied by its officers with incorrect information as to the availability of other public space in the locality and thus took into account irrelevant considerations, and did not take into account relevant considerations (the "2009 figures" argument).

The De Facto argument

13. In order to consider this point I must set out, first, relevant paragraphs from the Report:

"1. The South Rise Allotments site ("the Site") was established following a Resolution by the Parks Committee of the former City Council in 1976.

Due to an oversight at the time, the City Council did not formally appropriate its landholding to allotment purposes. As such, the land remains legally held for its original acquisition purpose for recreation ground use under the Public Health Act 1875.

2. At its meeting on the 3 November 2011 the Council's Executive decided in principle that in all the circumstances the Site . . . was no longer required for its present legal landholding purpose under the Public Health Act 1875 and that it should be formally appropriated to the legal use of allotments under the Allotments Act 1925. As the land was public open space in 1976, the Executive also approved the publication of the proposed appropriation in a local newspaper on two consecutive weeks with a view to any objections to the proposal being reported back for consideration. That is a statutory requirement imposed by s 122 of the Local Government Act 1972 in regard to appropriation of public open space land. A final decision on appropriation was to be made following the public consultation.

3. The public consultation has been carried out in regard to the proposed appropriation and the purpose of this report is to make the Cabinet aware of the responses received so that it can make a transparent decision in regard to the proposed appropriation by considering whether the site is no longer required for the legal purpose for which is currently held being recreation ground use, and if not whether it should be appropriated to the legal purpose of allotments

. . .

5. The Site is shown edged red on the site plan . . . and that land has been fenced off and excluded from public use since 1976, including the strip which is shown edged blue ("the Blue Strip"). The Site has been used and maintained for de facto allotment purposes with associated car parking. There has been no objection to that de facto use during the past 35 years. It should be noted that the Blue Strip includes both a grassed area and the tarmaced allotment car park. . . .

. . .

7. The Site continues to be satisfactorily managed by the [Allotments] Society. The Blue Strip is currently maintained by the Society as a grassed area and car park. The grassed area has not been utilised previously due to a sewer pipe which runs under the land. . . . There is nothing in the Self-Management agreement to prevent the Society from using the Blue Strip for leisure gardening activities. Welsh Water's standard requirements in respect of sewer pipes is that landowners should not build over them, but there is no requirement to exclude gardening use. The Society has not previously used the grassed strip to any significant degree because it was under the impression that the presence of the sewer pipe stopped its members from doing so. The car parking area is at the end of the access lane which connects with Lisvane Road. There is no other adjacent parking facility and the car park is well used by allotment holders including the Society's more senior members.

. . .

14. [The Claimant's] stated reasons for objection to the proposed appropriation of the Blue Strip are set out in the [Objections] Letter. . . . The letter states that the allotment use of the Blue Strip is contrary to the current landholding power under the Public Health Act 1875 and that an appropriation is necessary. It further states that two planning permissions were granted in 1976 by reference to plans showing some of the land being used for allotment purposes and the remainder being grassed with a footpath running through it, which would be publicly available. [The Claimant] asserts that both permissions show the car park being available to both allotment holders and recreational users and contemplate public open space provision on the areas not used for allotment purposes [The Claimant] further asserts that fewer allotments have been created than originally planned and a grassed area has been provided which is larger than originally conceived. The whole area of the allotments, car park and grassed areas has been fenced off.

. . .

17. The [Allotments] Society's comments are set out in full at Appendix 7. They are summarised as follows -

(a) The Blue Strip has been an integral part of the allotment gardens since 1976. There has been no public access during that time, with boundary fencing and a padlocked gate.

(b) The Blue Strip, including the current fencing, car park and grassed area has been maintained as an integral part of the site.

(c) Plot holders come from the wider community, relying on their own transport for access and carrying gardening equipment. Secure car parking is essential and in continual use.

(d) The Society provides plots for people with disabilities in accordance with Council policy. Transport access and secure parking is essential for this group.

(e) The parking area is used for secure storage of ride mowers and mechanical cultivators. It also has a storage shed which is used as a site shop. Delivery lorry access is required to these sheds.

(f) The parking area is also utilised for the delivery and storage of recycled woodchip.

(g) In line with Council policy to increase allotment membership, the society is creating new plots on the grassland strip adjacent to Plot 63.

(h) To improve biodiversity the Society intends to create a wildflower meadow on the grassland strip adjacent to plots 58a and 58b.

Considerations

18. In deciding whether to appropriate the Site for allotment purposes, the Council's decision makers are required to consider whether the Site is no longer required for the legal purpose for which it is held immediately before the appropriation. In that respect, the courts have interpreted "not required" as meaning "not needed in the public interest of the locality". Objections can relate to both whether the Site is still needed for allotment use.

. . .

Whether the land is no longer required for the purpose for which it is held immediately before the proposed appropriation

22. (a) There has been no objection to formal appropriation of the site to allotment purposes save for [The Claimant's] objection in respect of the Blue Strip.

. . .

(e) In terms of de facto use, the Site including the Blue Strip has been fenced off for allotment use without public objection for the past 35 years.

(f) The Society has expressed its intention to create a wildflower meadow on part of the Blue Strip.

In light of the above it is not considered that retention of the Blue Strip for its longstanding de facto use would amount to a breach of the Council's obligation when exercising its functions to take account of furthering conservation and enhancement of flora and fauna at the reservoir SSSIs.

. . .

Whether the appropriation would be in the public interest of the locality

24. There [is] a demand for allotment plots at the site as evidenced by a current waiting list of 24 persons.

25. The Council's Allotment Strategy for Cardiff includes objectives which are to increase the uptake of allotments, promote the healthy impact of growing and producing fruit and vegetables and increase the environmental sustainability of allotments.

26. The Self-Management Agreement of the site includes an implied right for the Society to enjoy quiet possession of the Site without interruption by the Council provided that it observes it obligations as set out in the agreement. There is no good reason for the Council to terminate the agreement for the purpose of moving the fence line and gates, thereby excluding the car parking area and the grassed area within the Blue Strip. That would represent a loss of amenity to the Society which has been available at the site for the past 35 years.

27. It is concluded that the formal appropriation of the site including (the Blue Strip) to allotment use would be in the public interest of the locality and that the ongoing benefits of retaining the allotment car park and the grassed area for potential additional plots are significant when set against the likely benefits of excluding the Blue Strip from the appropriation and providing a narrow, dead-end public walking area.

Legal Implications

28. The Council can appropriate land under s 122 Local Government Act 1972 which states that a principal Council may appropriate for any purpose for which the Council are authorised by this or any other enactment to acquire land by agreement any land which belongs to the Council and is no longer required for the purpose for which it is held immediately before the appropriation. The outcome of consultation is set out in the body of the Report. The decision makers must take account of all material circumstances in coming to their decision and disregard those which are not material."

I then refer to two paragraphs from the Addendum Report:

"4. The Allotment Site has been fenced off and gated for 35 years, including the Blue Strip. The car park is used by allotment holders and the grass strip is maintained by allotment holders. That is the de facto use.

5. The allotment use has existed for 35 years. There is no need for planning permission to dig some extra plots within the established cartilage of the allotment gardens. . The Allotments Society has expressed its intention to lay out more plots and there is a waiting list."

14. Mr Steel submits on the Claimant's behalf as follows:

(i) The Defendant has reversed the onus of proof, or not asked itself the correct question under s 122, namely whether plots A and B are "no longer required" for the purpose for which they were held immediately before the appropriation, (i.e. for public space).

(ii) The Defendant has placed excessive emphasis on the so-called de facto use of the land, particularly since Plots A and B had been in fact subject to statutory trusts in favour of the public, because there has been no appropriation under s 122, and thus the exclusion of the public from the Plots has been unlawful since 1976 (see AG v Loughborough Local Board, The Times, 31 May 1881 and Western Power Distribution Investments Ltd v Cardiff County Council [2011] EWHC 300 (Admin) at paragraphs 13 to 18).

(iii) The Defendant misunderstood or misinterpreted and/or misrepresented the effect of the First Planning Permission in considering that there was not intended to be public use thereafter and/or a public footpath.

15. Mr Lowe submits on the Defendant's behalf that:

(i) the Report plainly sets out correctly the question to be decided, in particular at paragraphs 1-3, 18 and 28 above set out. See also the Meeting Notes:

"Cllr Huw Thomas introduced the matter by saying that the appropriation had originally been considered in principle by the Council's previous executive in November 2011, after an oversight in appropriating the land in 1976 when the allotments were created. Since then statutory consultation had taken place and only one objection had been received, from [the Claimant]. His recommendation was that the meeting to appropriate the whole of the Site (including what is described in the report from officers as the Blue Strip) for the purpose of allotment use pursuant to s 122 ...

The Council's solicitor, . . . explained that what was being considered was a formal change of the status of the land from open space to allotments, for legal purposes."

(ii) The Defendant did not misrepresent the planning permission, but in any event what was said as to the use since 1976 was correct.

(iii) The Defendant was lawfully entitled to balance against the fact that there would be a loss of public space the fact that the land had in fact been used for allotments, and that there was substantial and well argued support for such use and its continuation, and to take into account, in considering whether there was no longer a need for A and B to be public space, the fact that for 36 years the community had got along without it.

16. I do not consider that the issue of what was intended by the planning permission is relevant. The fact is that for 36 years A was used for allotment purposes and B ancillary to such allotments.
17. The Claimant accepted the relevance of allotments to the question to be decided by the Defendant in its Objections Letter, though asserting that the impact on the decision should be minimal, in a passage headed "Impact on allotments" in paragraphs 18 to 21 of the Objections Letter, which I do not need to set out in this judgment.
18. In the original In-Principle Decision, the Defendant had stated that the decision would be, as set out above, whether the land at South Rise Allotments was no longer needed as public trust land. I consider that the Defendant was entitled to take into account the submissions of, and use by, the Allotments Society, even though facilitated by (unlawful) exclusion of the public. But, in any event, I am satisfied that the Defendant asked itself the correct question and did not reverse the onus of proof.

The Circular Walk Argument

19. In the Claimant's Objections Letter it set out the following:

"12. The shortage of open space provision (including for informal recreation) in the area was understood not to be in dispute: it was clearly demonstrable by reference to the Council's own data regarding open space provision and need across the City, as set out most recently in Cardiff Council's Open Space Survey dated September 2009. That survey confirmed that in each of the wards around the allotments (as well as in Cyncoed, lying by the Nant Fawr Meadows on the other side of the reservoirs), there was a significant deficit in the provision of formal and informal recreational open space (as well as in children's play areas) when set against the applicable per capita standards. The total deficit was in itself significant too:



13. That general position had been exacerbated further by the enforcement of rules at Lisvane Reservoir (owned by WPD) preventing people from walking their dogs there. Those rules had been enforced with the full support of the Countryside Council for Wales (CCW), to ensure the proper management of each of the SSSIs. Further, [the Claimant] had temporarily restricted any access to Lisvane Reservoir following consultation with and support and consent from CCW. The result was that, notwithstanding demonstrable demand for the use of open space, those rules and restrictions had meant that the use of Lisvane Reservoir was no longer available to members of the public in the area as it had been.

. . .

16. The Council was obliged to have regard to these matters. It was under a duty to have regard to biodiversity in the exercise of its functions under the Countryside and Rights of Way Act 2000 and the Natural Environment and Rural Communities Act 2006. Moreover, given the threat to the features of special ecological interest caused by the shortage of accessible public open space in the immediate vicinity of the SSSI, and pursuant to s 28G of the Wildlife and Countryside Act 1981, the Council is under a duty to take reasonable steps, consistent with the proper exercise of the authority's functions (which would include making the A land available for public recreation in accordance with the statutory trust under which the land is held), to further the conservation and enhancement of the special interest features of the SSSIs.

17. In light of the above, it would be unreasonable to conclude that the A land is not required for public open space purposes."

20. In addition, there was enclosed a Position Statement by the Countryside Council for Wales (CCW) which confirmed the position in relation to the two reservoirs.
21. The relevant paragraphs of the Report as are as follows:

"15(a) there is a clear and demonstrable shortage of informal recreation provision in the Llanishen Ward.

(b) the position has been exacerbated by [the Claimant's] prevention of people walking on its land adjacent to the reservoir with the support of Countryside Council for Wales so as to protect the two [SSSI's]. [The Claimant] has also imposed restrictions for management purposes and these may be put in place seasonally in future.

(c) [The Claimant's] planning applications, if approved, are not expected to be implemented for a number of years. Hence the open space benefits included within those proposals will not be available in the short term.

(d) There are no other proposals to improve the shortage of recreational open space in the area.

(e) Trespass by dog walkers onto the SSSIs is difficult to control.

(f) Use of the Blue Strip as an open space which is alternative to the reservoir embankments would be ecologically desirable.

. . .

(19) The Council has a statutory responsibility pursuant to s 28G to take reasonable steps when carrying out its functions to further the conservation and enhancement of the flora and fauna by reason of which a site is of special scientific interest. The view of the Council's Parks Manager is that use of the Blue Strip for public open space would not be likely to relieve the reservoir's SSSIs from recreational pressure. That is because the Blue Strip is a dead-end piece of land which would not offer walkers the circular route and waterside views which are offered by a walk around the reservoir embankments.

. . .

(22)(b) The view of the Council's Parks Manager is that the long linear shape of the Blue Strip limits its value and use as recreational open space. Use by walkers would have limited appeal as the strip would lead to a dead-end, whereas the reservoir embankments form a circular walk.

(c) The Parks Manager also considers that the linear strip is of a very different nature and character from the reservoir embankments which give long and elevated views over the surrounding area."

22. Mr Steel submits that the Defendant erred in law in taking into account incorrect (and thus irrelevant) considerations, and failed to comply with its duty under s 28G by putting forward the Circular Walks as a viable, (indeed preferable), alternative to the public space in A:

(i) The Report, as set out above, pejoratively contrasted the "dead-end" nature of the strip in A with the "circular route" (and waterside views) "offered by a walk round a riverside embankment" when:

(a) as was clear from the Objections Letter (and from the Position Statement by the CCW, although this was not apparently provided to the members), there was no circular walk available around Llanishen, (no access at all being permitted), and only a circular walk around Lisvane between May and August each year. In the rest of the year access to Lisvane has been very limited indeed. This comparison (or purported contrast) with the "circular walk formed by the riverside embankment" was inapt; those taking such a walk would be trespassing, save in respect of Lisvane in the summer months.

(b) No reference was made at all to the fact that dog walkers are not entitled to use either of the reservoir embankments, and would have thus only been entitled to access, if it were permitted, to the dead-end strip.

(ii) In any event, it was irrational to make reference to the Council's statutory responsibility under s 28G, and then express the view that a circular walk around the reservoirs, which could only be obtained, save as to May to August, around Lisvane by trespassing in SSSIs, was preferable.

23. Mr Lowe submits:

(i) The Report was entitled to point out the unattractiveness of A to walkers. The comparison of the unappealing strip with the (albeit restricted) circular walk, but in any event with the waterside views available over the reservoirs, was appropriate.

(ii) The members knew that access to Llanishen Reservoir was not available and knew of the fact that access to Lisvane was restricted.

(iii) The duty by reference to s 28G did not extend to providing alternative additional land, if there was otherwise good reason not to do so.

(iv) CCW made no objection to the Defendant's proposal, (although neither side, it seems, specifically asked them for their views).

24. I shall set out my conclusions in respect of the second ground, when I have considered the third, which is plainly interlinked, relating to the availability of other public space.

The 2009 Figures Argument

25. In paragraph 12 of its Objections Letter, (set out in paragraph 19 above) the Claimant had referred to a deficit in open space provision in Llanishen, Lisvane and Cyncoed Wards.
26. The Report stated as follows:

"22. (d) The Council's Open Space Supplementary Planning Guidance (2007) indicates a deficiency of recreational open space in Llanishen Ward.

However, the immediately adjacent Lisvane Ward shows a small surplus. Moreover, there are substantial tracts of public open space to the east (Nant Fawr Meadows) and to the south (Nant Fawr Open Space/Rhydypenau Open Space) which lead into an accessible corridor of green space stretching down to Roath Park and beyond. These areas are available to walkers."

27. In its Further Objections letter, the Claimant stated:

"3. The Report refers to the substantial deficiency in open space in the Llanishen ward (the ward in which the allotments are in) but then goes on to talk about the minor surplus in the Lisvane ward. It also says that alternative areas of open space or available at Park Rhydypenau and the Nant Fawr Meadows. Both these points are relied upon in support of the suggestion that the Blue Land is no long required for use as open spaces. We comment as follows:

(a) Firstly, the surplus to which the report refers is a small surplus in the adjacent ward to which the Blue Land is located. That surplus is dwarfed by the substantial deficit in the Llanishen ward within which the Blue Land is physically located. It is however artificial to look at the matter on a ward by ward basis – the fact of the matter is that there is clear pressure for recreational usage of the reservoirs which are not public open space. This is as a result of a lack of accessible alternatives from Lisvane Road. The Parks Manager's reliance on the open space statistics leads to an irrational conclusion.

(b) Secondly, the Report ignores the fact that the situation has in fact worsened since then.

(c) Thirdly, Park Rhydypenau and the Nant Fawr Meadows are of little use to anyone living close to the access to the reservoirs from Lisvane Road: it has been confirmed through many years of public inquiry, with express findings by the Chief Inspector of the Planning Inspectorate and the Welsh Ministers in that regard, that the areas referred to by the Parks Manager in the report are not easily accessible to residents of Lisvane and they do not provide appropriate open space alternatives. It is for this reason that the SSSI's have become so heavily used."

28. The Addendum Report stated as follows:

"3(a) the Report does not look at open space provision on a ward by ward basis. It refers to the open space at Nant Fawr meadows and Nant Fawr Open Space/Rhydypenau Open Space

(b) the reduction in access to open space around the reservoir is referred to at paragraph 14 [the reference must in fact be to 15(b]

(c) the view of the Parks Manager in regard to Park Rhydypenau and Nant Fawr Meadows is contained in the Report for members' consideration."

29. I leave aside minor quibbles about the suitability of the other open space referred to. Mr Steel's main complaint is that the information supplied by the Report to the Defendant's members was incorrect.

(i) The reference in paragraph 22(d) of the Report may be a reference to a document called the "Open Space Survey 2005-2006", published in February 2007, as the Claimant has suggested in evidence, although Mr Lowe submits that it is more likely to be a reference to a document called "Open Space Assessment 2007", which does appear to me to be more probable. On any basis, however, neither of those surveys is adequate as the source of information for members in a Report intending to give them the wherewithal to decide the issues under s 122:

(a) They are both out of date. The most recent survey as of July 2012 was the Open Space Survey 2009.

(b) Both the 2007 surveys include in their calculation of public open space Educational Land, which is of no assistance, not available to the general public and not relevant to s 122. Had the correct and (more) up-to-date information been supplied by reference to the 2009 survey, it would have shown that there was a deficit of open space compared to requirements in all three relevant wards: in Lisvane of 6.67 hectares; in Llanishen of 23.46 hectares; and in Cyncoed of 21.73 hectares. This information, certainly together with the correct information about the position in relation to the reservoir walks, would have made a very substantial difference to the picture set out in the Report (paragraph 22(d) in paragraph 26 above).

30. Mr Lowe submits that the 2009 survey was not a published document, although he accepts that it was available to the Defendant, being prepared by its planning department. But, in any event, if the fact of a net deficiency had been disclosed, it would not have made any difference to the decision, because:

(i) The members knew the position (see the Meeting Notes):

"Cllr David Walker expressed support for the recommendation of Cllr Thomas. However, he urged caution in regard to the availability of open space in the area, with particular reference to paragraph 22(d) in the report."

He made the point that there were substantial tracks of land to the north of the reservoir that were the subject of consideration of housing provision. His view was that the areas of open space that might be seen as presently available would not necessarily remain, as there was a potential for more housing in the area.

(ii) The Report said that there was a deficiency in the Llanishen ward (and that there was a small surplus in Lisvane). In any event, the Claimant had said in the Further Objections Letter that it was artificial to look on a ward by ward basis.

31. As to (i), Mr Steel submits that information contained in the Report to members is more significant than what one member may have said at the meeting, and, in any event, Councillor Walker's comments do not reflect on the inaccurate information supplied, as set out above.
32. As to (ii), I am persuaded by the fact that the statement in paragraph 22(d) of the Report as to the deficiency in Llanishen ward is followed by the word "However", (itself followed by "Moreover"), which must have been intended to show that the deficiency was outweighed. It is clear that paragraph 22(d) was intended to be the riposte to paragraph 12 of the Objections Letter set out above.
33. Mr Lowe relies on, or adopts, the words of HHJ Seys-Llewellyn when granting permission to the Claimant:

"Insofar as the Claimant relies on a flawed consideration of the amount, proportions or locality of existing open space it is at best doubtful whether the ground is arguable. It was a matter for the members how far they were assisted by ward based statistics with respect to an issue which related to the need for and local attractiveness of the A land as a public open space. The decision was (if reference to an immaterial consideration was otherwise absent) for the decision maker. It was not, at least on hitherto conventional principles, one for, or to be evaluated, by the court itself by reference to persuasiveness or otherwise of the opinion or interpretation of the Claimant's advisers on the point."

However, the significance is that the information supplied to the members was incorrect.

Conclusion

34. Taking the second and third grounds together, I am satisfied that incorrect and inadequate information was put before the members, and that the Defendant was in no position to reach the decision as to whether there was no longer a need in the locality of a public space, when (1) the members were led to believe, wrongly, that the reservoirs provided a viable, indeed preferable, alternative; and (2), the material deficiency in local space in all three relevant wards was not disclosed or was misrepresented, and in addition the members were given no opportunity to comply with their obligations under s 28G.
35. I accordingly quash the decision of the Defendant.