Town or village green – Registration – Commons Act 2006 – Defendant local authority refusing to register land as town or village green under section 15 of 2006 Act – Claimant applying for judicial review – Whether inspector erring in concluding that use by local residents “by right” rather than “as of right” – Whether defendants failing in duty to investigate basis on which land maintained and managed – Whether defendants erring in finding non-continuous use of land – Application dismissed
The claimant was a resident who lived near a triangle area of land adjoining a sea wall in Walton on the Naze which he had used for recreational purposes. The second interested party had applied to register the land as a town or village green pursuant to section 15(2)(a) of the Commons Act 2006. The owner of the land (the first interested party) objected to its registration. An inspector appointed to hold a non-statutory inquiry into the application recommended its rejection. He found that, although the land was not owned by the district council (the third interested party), it had managed, controlled and maintained the land as if it were an area of public open space or parkland available and open for all to use under the Open Spaces Act 1906 and the Public Health Act 1875. Accordingly, the relevant land did not qualify for registration because the use by the local inhabitants had been “by right” during the relevant 20 year period rather than “as of right” as required by section 15(2)(a) of the 2006 Act. Further, the use of the land for lawful sports and pastimes had not continued throughout the period of 20 years before the date of the application because there had been a three months in 1993 when major works were carried out for the replacement and heightening of the sea wall or bank.
The claimant applied for judicial review to impugn the decision not to register the land on the basis that: (i) the defendants had erred in concluding, on the basis of the information they had, that the public’s use of the land had been “by right” rather than “as of right”; (ii) that, in any event, they had failed in their duty to investigate, before taking the decision impugned, the basis upon which the third interested party had been maintaining and managing the land during the relevant period; and (iii) the defendants had erred in concluding that the land had not been continuously used without interruption for lawful sports and pastimes in that period. The High Court granted permission to bring the claim: [2014] EWHC 90 (Admin).
Held: The application was dismissed.
(1) If continuous uninterrupted use over the relevant 20 year period was not to give rise to a town or village green it was crucial that there was a reason why it would not have been reasonable to expect the owner to resist the exercise by the members of the public of any right to use the land for the purpose of lawful sports and pastimes which they were apparently asserting, since the prescription of such public rights depended on acquiescence by a person in a position to resist them: R v Oxfordshire County Council, ex parte Sunningwell County Council [1999] 2 EGLR 15 applied.
In the present case, it made no difference to the right which the public had to use the land that it was made available by the third interested party by virtue of an arrangement it had with the landowner which did not give the authority itself any estate or legal interest in that land. A local authority was empowered to permit such use by virtue of the enactment under which it had acquired its rights for that purpose. Whilst such an arrangement subsisted, the landowner had authorised the local authority to permit the public to use the land for recreational purposes and neither the landowner nor the authority could assert that a member of the public using it for such purposes was a trespasser. Members of the public would not be using the land “as of right” but “by right” for a purpose for which they had been lawfully invited to use it: R (on the application of Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11; [2010] 1 EGLR 153, R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 EGLR 94, R (on the application of Newhaven Port & Properties Ltd) v East Sussex County Council [2013] EWCA Civ 276; [2013] 2 EGLR 1 and R (on the application of Barkas) v North Yorkshire County Council [2014] UKSC 31; [2014] PLSCS 158 considered.
It was sufficient that any agreement which the third interested party had was one for the care and management of the land under section 9(b) of the 1906 Act, even if it did not give the third party “control” of it. Further, although the court had not received full argument on the point, there seemed to be no reason why the same should not apply to land held for use as public walks and pleasure grounds under section 164 of the 1875 Act.
(2) A registration authority was entitled to assume that normally the evidence it obtained from the applicant and any objectors in accordance with any relevant regulations would be enough to provide it with sufficient information upon which it might reasonably determine the application made to it. A claimant who contended that an authority should have made further investigations had to show was that the authority had failed to take steps which any reasonable authority would have done in order to obtain the information or evidence without which no reasonable authority could have made the decision it did in the circumstances. In the present case, the claimant had not shown that any reasonable authority would have done so: R v Westminster City Council, ex parte Monahan [1990] 1 QB 87, R (on the application of Katun) v Newham Borough Council [2004] EWCA Civ 55, R (on the application of Badger Trust) v Secretary of State for the Environment Food and Rural Affairs [2012] EWHC 1904 (Admin), R (on the application of Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (Admin) considered.
(3) In any event, the defendants were entitled to conclude that the public’s use had not continued throughout the relevant period but had been interrupted. Whether any break in the use made by local inhabitants of land for lawful sports and pastimes was sufficient to interrupt their continuous use of it for that purpose was a matter of judgment for the registration authority which, absent any misdirection, could be impugned only on well known Wednesbury grounds. The claimant had not shown that the inspector had misdirected himself in law. Moreover, the interruption in 1993 did not fall to be disregarded by virtue of section 15(6) of the 2006 Act which was concerned with cases where in which a statutory prohibition on access to the land was imposed on members of the public: Betterment Properties (Weymouth) Ltd v Dorset County Council [2012] EWCA Civ 250; [2012] PLSCS 53; [2012] 2 P&CR 3 considered.
Dr Ashley Bowes (instructed by KSN Solicitors) appeared for the claimant; Alan Evans (instructed by Essex Legal Services) appeared for the defendants.
Eileen O’Grady, barrister
