Town or village green – Deregistration – Claimant challenging decision of inspector appointed by defendant granting application for deregistration and exchange of land in respect of village green – Whether inspector erring when considering interests of neighbourhood – Whether inspector failing to consider fallback position of objectors maintaining release land – Application dismissed
The claimant challenged the decision of an inspector appointed by the defendant secretary of state allowing an application by the first interested party, under section 16 of the Commons Act 2006, for the deregistration and exchange of land in respect of Woodcock Hill Village Green in Borehamwood, Hertfordshire. The release land comprised 33000m² of the existing green. The replacement land comprised 36000m² of land to the west of the green.
The site was granted town and village green status following an application by the claimant who had demonstrated the requirements for registration, including use of the land for twenty years for lawful sports and pastimes by a significant number of inhabitants of any locality or of any neighbourhood within a locality, as required by section 15 of the 2006 Act.
The first interested party applied to deregister and exchange adjacent land and the defendant launched an inquiry. The key issues before the appointed inspector included whether the deregistration and exchange were in the public interest and the neighbourhood’s interest.
The claimant contended that the inspector erred in law when he stated, and then proceeded on the basis that, “the public” had a right to use a town and village green. Further, the inspector erred in law when he considered the interests of those outside the neighbourhood, having defined “the neighbourhood” as that identified at registration.
Held: The application was dismissed.
(1) In determining an application for deregistration, the appropriate national authority had to have regard to, among other things, the interests of the neighbourhood: see section 16(6)(b) of the 2006 Act.
The claimant argued that the inspector had defined the “neighbourhood” as the predefined neighbourhood (ie, the neighbourhood whose inhabitants proved the requisite 20 years of use) to achieve registration but he wrongly went on to consider the interests of those who fell outside that definition.
The assumption that a word or phrase in a particular Act bore the same meaning throughout could be displaced. In the present case, the use of “neighbourhood” in section 16(6)(b) was different from the use of that word in section 15; and a “neighbourhood” for the purposes of section 16(6)(b) did not mean merely the “neighbourhood within a locality” in which “a significant number of the inhabitants… indulged as of right in lawful sports and pastimes on the land for a period at least 20 years”.
If registration came about as a result of use of the town or village green by the inhabitants of a “locality” as opposed to a “neighbourhood” in its section 15 sense, a green so registered would fall outside the scope of section 16(6)(b). There was no corresponding provision within section 16 which restricted the interests of a “locality” in the way in which the claimant said section 16(6)(b) did, where a town or village green was registered as a result of use by the inhabitants of a neighbourhood. That pointed powerfully to giving “neighbourhood” in section 16(6)(b) a wider meaning.
(2) Reading the decision letter as a whole, the inspector was plainly aware of the distinction between those with a formal legal right to use the village green and the wider public who either made, or would make, use of the replacement land (in particular, the residents to the west). In undertaking the practical exercise of making a decision on the section 16 application, the inspector was simply reflecting the reality that although, strictly, rights attached to the local inhabitants in practice, once land was registered under the Act, no attempt could realistically be made by owners to distinguish between different groups of users: R (on the application of Barkas) v North Yorkshire County Council [2014] UK SC 31; [2014] 2 EGLR 115; [2014] EGILR 33 applied.
It was clear from the decision letter that the inspector considered in significant detail how the application would affect the interests of the inhabitants of the defined neighbourhood. He was also aware of the interest of inhabitants of the defined neighbourhood in enhancing the nature conservation aspects of the release land.
(3) Section 16(6) made it clear that the appropriate national authority was required to have regard to three categories of interests. There was no suggestion that the interests of persons having rights in relation to the release land (section 16(6)(a)) fell to be treated any differently from “the interests of the neighbourhood” or “the public interest” (section 16(b) and (c)). Nor, was there any requirement for priority to be given over those “interests”, viz-a-viz “any other matter considered to be relevant” (section 16(6)(d)). On the proper interpretation of the statutory scheme, the decision letter disclosed no legal error.
In all the circumstances, the inspector did not err in adopting a broad approach to what was meant by “neighbourhood” in section 16. Furthermore, there was no reason to infer that the inspector had regard to the interests of persons not falling within the “neighbourhood” in the section 16(6)(b) sense. But even if he had done so, the inspector was still entitled to have regard under section 16(6)(c) to the public interest. Overall, there was no indication that the inspector ranged further than was required by section 16(6).
(4) The inspector had express regard to what the claimant referred to as the fallback option of local residents, including the claimant, maintaining the release land.
The inspector was fully alive to the respective positions of the parties in respect of activities relating to nature conservation. He did not need to reach a conclusion on who was right, as a matter of law. It was plain that the inspector placed weight on the fact that, in practice, little work had been carried out since permission was withdrawn by the first interested party. Moreover, he observed that nature conservation was only one of several factors to be taken into account and that it was not one that should exclude provision of opportunities for other lawful sports and pastimes also to be enjoyed.
Joe Thomas (instructed by Richard Buxton Solicitors) appeared for the claimant; Hugh Flanagan (instructed by the Government Legal Department) appeared for the defendant; Douglas Edwards KC and Michael Rhimes (instructed by Gowlings Solicitors) appeared for the first interested party; The second interested party did not appear and was not represented.
Eileen O’Grady, barrister
