Town or village green – Open land – Registration – Council appropriating land from recreational to development use and allocating part for employment use – Inspector refusing application to register whole of land as town or village green – Claimant objector applying for judicial review to quash decision – Whether inspector erring in law by placing reliance upon inferred re-appropriation of land by council – Whether inspector failing to have regard to material considerations – Application granted
Eastern Fields was an area of largely open land within Exeter owned by Exeter city council by means of two purchases, namely, the purchase of an area for recreational and playing field purposes and the acquisition of former private railways siding land. The Exeter Local Plan contained a proposal allocating the most southerly part of the land for employment use and a link road to provide better access for traffic to industrial areas in the vicinity. The council formally appropriated the land from a recreational use to be held for development purposes and then disposed of for industrial use.
An application was made to the county council to register the whole of Eastern Fields as a town or village green which was passed to the planning inspectorate to decide as they were at the time a pilot area for the purpose of the Commons Act 2006. An inspector appointed by the defendant secretary of state held a public inquiry at which the claimant gave evidence in support of the application. The council was the principal objector to the proposal.
In relation to the land allocated for employment use and the former railway sidings, the inspector reached tentative a conclusion that the land had been re-appropriated to open space and the use of the land had been “by right”. Further, use of the land was such that reasonable people would have concluded that they were let onto the land by virtue of the council’s implied consent. Accordingly, he determined that the application should be refused.
The claimant applied for judicial review of that decision contending that the inspector had: (i) misdirected himself in law in concluding that reliance could be placed upon an inferred re-appropriation of the land; and (ii) failed to have regard to two important material considerations, namely the public ownership of the land in question and the nature and quality of the events which had been held upon it. Further, if the council had not re-appropriated the land to open space its use must have been “as of right” rather than “by right”.
Held: The application was granted.
(1) Section 122 of the Local Government Act 1972 contained no prescribed formula for the procedure to be adopted when a council appropriated land from one purpose to another. However, the council had to determine that it no longer required the land for the purpose for which it was held up to the point of that appropriation. That required some conscious deliberative process so as to ensure that the statutory powers under which the land was held was clear. Appropriation from one use to another could not be simply inferred from how the council managed or treated the land. By exception, there was a prescribed statutory process required for land which was open space, contained in the consultation requirements in section 122(2A). The land simply needed to be used as open space for the consultation requirement to bite in accordance with the definition within section 336 of the Town and Country Planning Act 1990 of open space, which included land “used for the purposes of public recreation”. Section 120(2) of the 1972 Act provided power for a council to acquire land for a purpose notwithstanding that it was not immediately required for that purpose and allowed its use for the purpose of any other council power in the meanwhile, including temporary uses: R v Doncaster Metropolitan Borough Council, ex p Braim (1986) 57 P & CR 1 and R (On Application of Galaxy Land Ltd) v Durham County Council [2015] EWHC 16; [2015] PLSCS 17 applied. R (on the application of Malpass) v Durham Country Council [2012] EWHC 1934 (Admin) and Western Power Distribution Investments Ltd v Cardiff City Council [2013] EWHC 1407 and Barkas v North Yorkshire County Council [2012] EWCA Civ 1373; [2013] 1 EGLR 1 (CA); [2014] UKSC 31; [2014] 2 EGLR 115; [2014] EGILR 33 considered.
In the present case, the inspector had misdirected himself in concluding that an appropriation of land to open space could simply be inferred from the planting of trees on the land. There had been a clear misdirection in the inspector’s decision as the decision in Barkas v North Yorkshire County Council [2014] UKSC 31 was not authority for the proposition that land could be appropriated without any evidence of the council having considered whether that land was no longer required for the use for which it was held and that appropriation could be simply deduced for their management of the land. Neither were the decisions in Oxy-Electric Ltd v Zainuddin [1990] EGCS 128 or Barkas authority for the proposition that appropriation could be inferred or could occur without the council considering whether the section 122 test had been met. The inspector’s references to the appropriation of the employment land development purpose being quietly forgotten went nowhere near meeting the section 122 test. That legal misdirection was fatal to the inspector’s reasoning.
(2) Furthermore, the inspector’s conclusions had been reached apparently without regard to two key and distinct features of the case which should have been central to his resolution of the issue in relation to implied licence, namely, the fact that the land was in public ownership and the nature and character of events which had taken place on the land which were, at least arguably, not inconsistent with a public entitlement to use the land. That was in sharp contract with commercial uses of the land. Accordingly, the inspector’s decision was unlawful and could not stand: R (on the application of Mann) v Somerset County Council [2012] EWHC 814 (Admin) distinguished.
Caroline Day (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the claimant; Lisa Busch (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Goodman) v Secretary of State for Environment, Food and Rural Affairs
