“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.”
“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.”
“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.”
“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 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. ”
“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 - . . . ”
“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’”
“[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.”
“[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’?”
“It is ordered that the appeal be allowed and that the said order of the respondent dated the 1st day of March 2005 be quashed so far as it concerns the Appellants’ land as was in contention at the public inquiry . . .”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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?”
“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. ”
“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 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”
“[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’?”
“[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’.”
“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.”
“[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. . . .”
“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.”
“[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 . . .”
“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.”