Town or village green – Registration – Use of land “as of right” – Claimant school applying for order quashing decision of defendant local authority to register as town or village green land used as school playing fields and also by local inhabitants – Whether defendant erring in law when concluding use of land by local inhabitants “as of right” – Whether defendant failing to provide adequate and sufficient reasons for decision – Application granted
The defendant council was the registered owner of the freehold interest in land known as Stoke Lodge Playing Fields, Shirehampton Road, Stoke Bishop, in Bristol. It was also the Commons Registration Authority empowered to register land as a town or village green pursuant to section 15 of the Commons Act 2006. The first interested party applied to the defendant to register the land as a town or village green. Objections to the application were received from the landowner, the second and third interested parties and the claimant school. An inspector appointed by the defendant initially recommended that the land should be registered as a green. However, following a nine-day non-statutory public inquiry, the inspector produced a written report recommending that the land should not be registered as a green on the basis that that the user undertaken by the local inhabitants over the requisite period had not been “as of right” within section 15(2)(a) of the 2006 Act. However, the defendant resolved to reject the inspector’s recommendation and granted the application for registration.
The claimant school which occupied the land pursuant to a lease granted by the landowner in 2011 for a term of 125 years, applied for an order quashing the defendant’s decision. When the inspector inspected the site, there were signs which stated that members of the public were not to trespass on the playing field which were clearly visible. The land had been used as playing fields by educational establishments and sports clubs since the late 1940s and the inspector found that it had also been used over many years by local inhabitants for informal recreational purposes. The claimant contended, amongst other things, that the defendant erred in law when it concluded that the use of the land by local inhabitants was “as of right” and failed to provide adequate and sufficient reasons for reaching that conclusion, thus rendering its decision unlawful.
Held: The application was granted.
(1) When writing his report, the inspector was obliged to ascertain the legal principles relevant to the interpretation of the phrase “as of right” and apply that phrase in accordance with those principles. Where an owner of land had made his position about its use clear through the erection of clearly visible signs, the unauthorised use of the land could not be said to be “as of right”, whether the claim related to registration of a town or village green or the acquisition of a private right: Taylor v Betterment Properties (Weymouth) Ltd [2012] 2 P&CR 3 and Winterburn and another v Bennett [2016] EGLR 35 applied. The inspector’s analysis of the law relating to the phrase “as of right” in the present case was correct, as was his conclusion that the use of land by local inhabitants was made contentious by the erection of sufficient and suitably placed signs which were visible to users of the land and which had been seen by a significant number of persons using the land. That was the clear and concise legal basis upon which he approached the evidence whether the local inhabitants’ use of the land was “as of right”. At the time of his inspection, the signs were still in situ and obviously visible. A close scrutiny of the inspector’s reasoning demonstrated that he did not consider that there had been any material change of circumstances following the erection of the signs so far as their visibility was concerned or the significance of their location.
(2) The defendant had not been entitled to reach a different view from the inspector upon the legal significance of the signs given the clear record in the planning committee minutes that when the signs were erected, they had made the position sufficiently clear that use of the site was contentious and not “as of right”. Having accepted a crucial finding by the inspector as to the legal significance of the signs, the committee failed, erroneously and unlawfully, to analyse the evidence and the further findings of the inspector as to when, if at all, the situation on the ground had changed materially so as to permit a conclusion that the signs were no longer sufficient to make contentious the use of the land by the local inhabitants. There was no basis for departing from the inspector’s conclusions given that both he and the committee were at one as to the legal significance of the signs when first erected.
(3) The defendant had conceded that its planning committee was under a duty to provide reasons for its decision to depart from the inspector’s recommendation. The obligation was to provide sufficient reasons to enable the parties to understand why it had departed from the recommendation of the inspector and reached a different conclusion as to the legal significance of the signs. Reduced to its essentials, the committee was of the view that the number and nature of the signs did not make the use of the land contentious given the size of the area of land in issue. That reasoning, however, did not begin to explain how such a conclusion was justified given that the committee had expressly concluded that, upon erection, the signs had been sufficient to make the use of the land contentious.
(4) Accordingly, the application succeeded. The court would not make a final ruling whether relief should be granted until it had heard submissions from the parties but, since the defendant had acted unlawfully when it registered the land as a green, it would be very difficult to persuade the court not to quash its decision.
Richard Ground QC and Dr Ashley Bowes (instructed by Harrison Grant Solicitors) appeared for the appellant; Stephen Morgan (instructed by Bristol City Council Legal Services Department) appeared for the defendant; Andrew Sharland QC (instructed by DAC Beachcroft) appeared for the first interested party; the second and third interested parties did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Cotham School) v Bristol City Council
