R (on the application of Strack, on behalf of Woodcock Village Green Committee) v Secretary of State for the Environment, Food and Rural Affairs

Town or village green – Deregistration – Commons Act 2006 – Inspector appointed by respondent granting application for de-registration and exchange of land in respect of village green – High Court dismissing application for judicial review – Appellant appealing – Whether inspector wrongly conflating interests of those with legal rights of recreation with local inhabitants without such rights when considering interests of neighbourhood – Appeal dismissed The appellant challenged the decision of an inspector appointed by the respondent secretary of state allowing an application by the first interested party, under section 16 of the Commons Act 2006, for the de-registration and exchange of land in respect of Woodcock Hill Village Green in Borehamwood, Hertfordshire. The release land comprised 33,000 sq m of the existing green. The replacement land comprised 36,000 sq m of land to the west of the green. The site had been granted town and village green status following an application by the appellant 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 de-register the site and exchange adjacent land and the respondent launched an inquiry. The appointed inspector decided that the de-registration and exchange were in the public interest and the neighbourhood’s interest and granted the application. The appellant’s application for judicial review was dismissed: [2023] EWHC 655 (Admin); [2023] PLSCS 55. The appellant appealed contending, among other things, that the inspector erred in conflating the rights of the residents of the defined neighbourhood on which the registration of the village green was based (qualifying inhabitants) with the interests of those who held no such rights. Held: The appeal was dismissed. (1) It was reasonable to refer to rights generated under the registration provisions of the 2006 Act as “public” rights in a broad sense, reflecting their attachment to a locality or neighbourhood and their being vested in those members of the public resident in that defined area. The right to use a town or village green belonged only to residents of the defined locality or neighbourhood on which the registration of the green was based. Those living outside would be “tolerated trespassers”. But the practical reality after a green had been registered was that it was likely to be difficult or impossible for the landowner to distinguish between users with legal rights over the green and those without such rights: Laing Homes Ltd v Buckinghamshire County Council [2003] 3 PLR 60, R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] 1 EGLR 153, R (on the application of Barkas) v North Yorkshire County Council [2014] UK SC 31; [2014] 2 EGLR 115; [2014] EGILR 33, TW Logistics Ltd v Essex County Council [2021] EGLR 16 and R (on the application of Day) v Shropshire County Council [2023] EGLR 21 considered. (2) Section 16 of the 2006 Act embodied the “modern regime” for the de-registration of town and village greens which demonstrated parliament’s intention to accommodate both the legal significance of town and village green rights and the practical reality of a green being used by members of the public without such rights. Section 16(6) specified a broad range of considerations to which the decision-maker had to have regard. The considerations in paragraphs (a), (b) and (c) were framed in terms of the “interests” identified which were not confined merely to “rights”. Nor were they confined to “legal interests” alone. The interests of rights holders were brought in under paragraph (a), but paragraphs (b), (c) and (d) went considerably further. It was imperative that the inspector had regard to all four of them. Having done so, it was open to him to proceed as he saw fit. That would require a balance to be struck between the different factors in play. The assessment carried out would necessarily depend on the facts and circumstances of the particular case. It was an exercise of the decision-maker’s evaluative judgment. (3) The statutory scheme allowed for the possibility that the likely effects of de-registration on the interests of those who enjoyed legal rights over a town or village green could be outweighed by those who did not enjoy such rights. There was no hierarchy or order of priority in the considerations specified in section 16(6). It was necessary for the decision-maker to have regard to all those considerations, conscious that the interests of those with rights over the green, whatever their precise nature, were legal rights distinct from the other interests required to be taken into account. The weight given to each of the interests under section 16(6) remained a matter of judgment for the decision-maker, challengeable only on conventional public law grounds. After registration, members of the public who did not hold rights over a town or village green as qualifying inhabitants but who nevertheless used it for recreation in the same way as those who did hold such rights might have an “interest” in their unimpeded and regular use of it, notwithstanding that they were tolerated trespassers. The concept of “the interests of the neighbourhood” in section 16(6)(b) was sufficiently broad to represent that reality. (4) Reading the decision letter as a whole, the balancing exercise the inspector undertook was entirely legitimate and met the requirements of section 16(6). As he was entitled and required to do, in considering the likely effects of the proposed deregistration and exchange of land, the inspector clearly had regard to the interests of the residents of the “defined neighbourhood” as rights holders. But he also had regard to any other relevant interests specified in section 16(6). His overall assessment displayed a comprehensive and appropriate balancing of positive and negative factors. It followed that the inspector’s assessment under section 16(6) was lawful. (5) (per Singh and Elisabeth Laing LJJ): The inspector erred in law in stating that the relevant legal rights belonged to the public. The correct legal position was that the rights so created were available to the relevant inhabitants, which meant that in principle they were available to the inhabitants of the relevant locality, rather than to the public at large. However, that error was not material; and, in the circumstances of this case, section 31(2A) of the Senior Courts Act 1981 clearly applied: It was highly likely that if the error had not been made the outcome for the appellant would not have been substantially different. David Holland KC and Joe Thomas (instructed by Richard Buxton Solicitors) appeared for the appellant; Hugh Flanagan (instructed by the Treasury Solicitor) appeared for the respondent; Douglas Edwards KC and Michael Rhimes (instructed by Gowling WLG (UK) LLP) appeared for the first interested party; The second interested party did not appear and was not represented. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Strack, on behalf of Woodcock Village Green Committee) v Secretary of State for the Environment, Food and Rural Affairs