Town or village green – Registration – Judicial review – Defendant commons registration authority rejecting claimant’s application to register land as town or village green – Claimant applying for permission to seek judicial review – Whether arguable that defendant erred in law – Application dismissed
The claimant applied to the defendant commons registration authority to register land in Wokingham, owned by the interested party, as a new town or village green pursuant to section 15(3) of the Commons Act 2006. The defendant consulted on the application and the interested party objected. The defendant instructed a barrister inspector to conduct a non-statutory inquiry in accordance with the procedure approved in R (Whitney) v Commons Commissioners [2005] QB 282. The inspector found that the claimant had failed to show that it was more likely than not that there had been lawful sports and pastimes on the land of the required quantity and quality for the relevant 20-year period. The defendant subsequently refused the application.
The claimant applied for permission to seek judicial review of that decision. The claimant raised four grounds of challenge: (i) the defendant erred in not holding the whole of its decision-making process in public; (ii) in reaching her conclusion the inspector failed to consider the activities she had identified cumulatively and in total in deciding whether a substantial number of inhabitants had indulged in them; (iii) the inspector excluded from her consideration certain activities as lawful sports and pastimes when she should in law have included them; and (iv) the decision did not give sufficient or intelligible reasons.
Held: The application was dismissed.
(1) Section 100A(1) of the Local Government Act 1972 provided that a “meeting” of a principal council should be open to the public except to the extent that they were excluded. The defendant’s own constitution could not override obligations imposed by statute. It followed that, if the statute required what was done in private to be done in public, the defendant would have erred in law by following its constitution and doing it in private. However, there was no statutory procedure for the determination for an application such as in the present case. Therefore, a council was entitled to adopt any procedure which it thought appropriate, subject only to any relevant requirements of legality and fairness. It was clear that the procedure adopted and published by the defendant gave every proper opportunity for public input into a decision. By part 8.8 of its constitution, it was for the defendant to determine the extent to which the proceedings took place at a “meeting”. Under the defendant’s procedure, the process of decision-making, which was specified as taking place in private, was not a “meeting”.
(2) It was common ground that the claimant’s application for registration could succeed only if she was able to establish each of the requirements of section 15(3), namely (a) a significant number of the inhabitants, (b) of any locality, or of any neighbourhood within a locality, (c) had indulged as of right, (d) in lawful sports and pastimes on the land, (e) for a period of at least twenty years up to a date not more than two years before the date of the application. The period in the present case was from September 1994 to September 2014. At the heart of the inquiry was the decision as to what it was that inhabitants were doing “as of right”. The inspector noted, in her analysis of the evidence, the existence of worn tracks over the application land, and analysed the use which the witnesses said they had made of the land. The inspector’s conclusion was that, with the exception of one person, the evidence of use of the tracks was evidence referable to the assertion of a public right of way and therefore did not demonstrate assertion of a right of recreation. An inspector had to take into account all the material available in order to determine the user of the land. The inspector’s task in the present case was not to determine whether there was a right of way, starting from the proposition that there were recreational uses; but to determine whether there were any uses as of right and if so what. Her conclusions on the evidence were, provided that they were lawful, matters of judgment for her. It was not arguable that she was not entitled to come as she did to the conclusion that in many cases the user, of which there was evidence before her was attributable to an asserted right of way: Oxfordshire County Council v Oxford City Council and another [2004] EWHC 12 (Ch); [2004] 2 PLR 65 followed. Dyfed County Council v Secretary of State for Wales (1990) 59 P & CR 275 considered.
(3) The inspector had examined the evidence to see how much if any of it was referable to user other than that of a claim to a right of way. In a situation of ambiguity, looking through the eyes of the reasonable landowner, she was concerned to determine what interpretation should be placed on other observable activities. The uses referable to the assertion of a right of way, and uses incidental to that assertion, did not count towards the establishment of use for lawful sports and pastimes. Once the right of way use was discounted, the evidence pointed only to very limited recreational use. There was evidence of a few infrequent or single activities. The small amount of evidence of activities which would have been qualifying lawful sports or pastimes were not sufficient to show the use of the whole of the land as a green during the whole of the relevant period. The inspector dealt with, and decided to discount, evidence purporting to show general widespread use of the land for recreation and attributed some of that claimed use to a claimed right of way as well. She found that the claimant had failed to prove that it was more likely than not that there had been lawful sports and pastimes in such quality and quantity for the relevant 20-year period. In doing do, it was not conceivable that she was not looking at the non-right-of-way use as a whole.
(4) The defendant’s decision was not defective for failure to give proper reasons. The defendant had been invited to depart from the inspector’s conclusions and declined to do so because having looked at all the material it endorsed the inspector’s conclusions. The claimant did not appear to have indicated any point on which she was in doubt as a result of the decision that was made.
David Wolfe QC and Ashley Bowes (instructed by Richard Buxton Solicitors) appeared for the claimant; Ned Westaway (instructed by Select Business Services Legal Solutions) appeared for the defendant; Douglas Edwards QC and Daisy Noble (instructed by Mills and Reeve Solicitors) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of Forbes v Wokingham Borough Council
