Town or village green – Registration – Locality – Claimant local authority owning land adjacent to primary school – Interested party applying to register land as town or village green – Inspector deciding most of land should be registered – Claimants applying for judicial review – Whether inspector erring in law – Application dismissed
The claimant local authority owned land known as Moorside Fields in Lancaster. The land was adjacent to a primary school and was held by the claimants as local education authority. The interested party applied to the claimants as registration authority to register the land as a town or village green. As landowner, the claimants objected to the application. Regulation 15 of the Commons Registration (England) Regulations 2008 (SI 2008/1961) required the application for registration to be made on a form provided by the registration authority which required the applicant to state the locality or neighbourhood relied on. The interested party said that the locality was three wards of Lancaster City Council. This was later amended so that the application relied on the SE Ward alone as the locality and a revised neighbourhood plan, which included some postal districts in the other two wards. The application was referred to the planning inspectorate. An inspector held a public inquiry and held that most of the land should be registered but that part should not.
The claimants applied for judicial review contending that: (i) the “locality” relied upon for registration did not qualify as it had changed within the relevant 20-year period relied upon, (ii) the applicant for registration needed to show that there was a geographical spread of users throughout the locality, (iii) the inspector ought to have found that the land was held for educational purposes and that registration as a town or village green would be incompatible with that statutory purpose (applying R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7); and (iv) the inspector’s conclusion that use of the land was not “as of right” was irrational.
Held: The application was dismissed.
(1) The inspector decided that SE Ward was a qualifying locality for the purpose of section 15 of the Commons Act 2006 and it was not in dispute that an electoral ward could be a qualifying locality. There was nothing in the 2006 Act which required the locality to have existed for 20 years; the fact that the use by its inhabitants had to have lasted for that period did not mean that its legal definition had to have existed throughout that period. It fulfilled its task by defining the area in relation to which significant numbers could be judged and to whom the rights, if registered, attached. Where one had a historic district to which rights had long become attached, it might not matter if subsequently the boundaries were affected by local government reorganisation, so long as it remained an identifiable community. The word “remain” meant that after the change, the identifiable community still had to be essentially the same community.
In the present case, the ward had been abolished and a new one created. The court did not accept that the consequence of the form in which the ward boundaries had been reorganised had so different an effect on the running of the 20-year period from that which would have happened with the more convoluted process of altering existing ward boundaries. In reality the current ward was the continuation of a sufficient part of the former word for continuity to remain between the two, by whatever means the change or interruption had been brought about. The abolition of the one and its replacement was no more significant than would have been an equivalent change wrought be boundary changes. The 2006 Act did not require such a distinction to be drawn: Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1988) 3 PLR 25; Ministry of Defence v Wiltshire County Council [1995] 4 All ER 932, R (on the application of Laing Homes Ltd) v Buckinghamshire County Council [2003] 3 EGLR 69, Oxfordshire County Council v Oxford City Council [2006] 2 EGLR 95, Adamson v Paddico (267) Ltd [2014] 2 EGLR 109; [2014] EGILR 19 considered.
(2) No statutory purpose was served by preventing registration on the basis of an absence of spread. Parliament had used language which did not include spread to express the simple requirement. Scatter of users, as opposed to their complete absence, neither went to the real merits of the case for registration for the proven significant number of users or to the real avoidance of the supposed mismatch between the area whence came the actual users who established the rights and the area to which the rights would attach after registration. The inspector had rightly rejected the submission that the statutory requirement for a significant number of the inhabitants of the locality to use the land meant that there had to be a spread throughout the locality: R (on the application of Alfred McAlpine Homes Ltd v Staffordshire County Council [2002] 1 PLR 1, Leeds Group plc v Leeds City Council [2010] EWHC 801 (Ch); [2011] PLSCS 285 and Paddico v Kirklees Metropolitan Council [2011] EWHC 1606 (Ch); [2011] PLSCS 161 considered.
(3) The inspector had not erred in law in her conclusion about the purpose for which the land was acquired or held during the relevant period. Other cases had determined that the necessary inferences about the purposes for which land were held could be drawn from long-standing practice which was lawful under statute (see R (on the application of Malpass) v Durham County Council [2012] EWHC 1934 (Admin)) but here there was very limited evidence of use which could give rise to such inferences. It was notable that some of the land had not performed any educational function in the 70 years since it was acquired. The court would have been satisfied on the evidence cited by the inspector that the presumption of regularity warranted that resolutions approving the purchase of the land would have been passed for the purposes mentioned in the conveyances. However, although the explicit reasoning of the inspector permitted a different conclusion, it did not impel it as clearly as was required for her conclusion to be held irrational: Naylor v Essex County Council [2014] EWHC 2560 (Admin); [2014] PLSCS 227 and R (on the application of Goodman) v Secretary of State for Environment, Food and Rural Affairs [2015] EWHC 2576 (Admin); [2015] PLSCS 267 considered.
(4) (obiter) Although it was not necessary to consider incompatibility with statutory functions, the court took the view that, applying R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7; [2015] EGLR 29, the mere fact that the land was owned by a statutory body for an identified statutory function did not mean that use as of right for public recreation was necessarily incompatible with that function. The land, registered as a green, could still be used by the education authority for recreational purposes, on the basis of the same “give and take” as had been practised in the past, even if it could not now be used for a school extension. The claimants could still discharge their functions after registration of the land, but not necessarily using the application land in the way it had intended.
(5) The inspector’s conclusion that use of the land was not “as of right” was not irrational on the evidence before her. It was clear that the question of implied permission and the significance of the challenges had been fully considered. It was for the inspector to judge whether they reflected give and take and responses to poor behaviour by certain members of the public. Her decision was rational. It did not turn on some contentious issue of law as to whether some licence had been explicitly communicated.
Douglas Edwards QC and Jeremy Pike (instructed by Lancashire County Council) appeared for the claimants; Tim Buley (instructed by the Government Legal Department) appeared for the defendant; Ned Westaway (instructed by Richard Buxton Public and Environmental Law) appeared for the interested party.
Eileen O’Grady, barrister
