Lancashire County Council v The Secretary of State for the Environment, Food and Rural Affairs Janine Bebbington (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 27 May 2016 |
| Neutral Citation | [2016] EWHC 1238 (Admin) |
| Docket Number | Case No: CO/6234/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 May 2016 |
2016 EWHC 1238 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/6234/2015
and
Douglas Edwards Q.C. and Jeremy Pike (instructed by Lancashire County Council) for the Claimant
Tim Buley (instructed by Government Legal Department) for the Defendant
Ned Westaway (instructed by Richard Buxton Public and Environmental Law) for the Interested Party
Hearing dates: 21st and 22nd March 2016
Approved Judgment
Lancashire County Council, the Claimant, owns land known as Moorside Fields in Lancaster. The land is adjacent to Moorside Primary School, and the County Council says that it holds it as local education authority. Ms Bebbington, the Interested Party, applied on 9 February 2010 to Lancashire County Council as registration authority to register this land as a town or village green. As landowner, the County Council objected to the application in April 2013. The Commons Registration (England) Regulations 2008 SI No. 1961 made provision as to how seven "pilot" County Councils, including Lancashire County Council, should deal with applications for registration of land which they owned. The application was referred to the Planning Inspectorate. An Inspector held a public inquiry on various dates in 2014 and 2015. Neither Mr Edwards QC nor Mr Pike, who appear now for the Claimant, represented the County Council at the public inquiry. Her decision, dated 22 September 2015, held that most of the land should be registered but that part should not. That decision can only be challenged by judicial review; there is no provision for a statutory challenge. Lang J refused permission on paper for Lancashire County Council, LCC, to bring judicial review proceedings. I have heard this application as a rolled up renewal hearing and substantive challenge.
Mr Edwards QC for LCC challenges the decision on these grounds: (1) registration required at least 20 years' usage as of right by a significant number of the inhabitants of "any locality." This meant an administrative area, and as the administrative area in question had changed during the 20-year period, the relevant period of usage could not be shown; the Inspector had erred in holding that it had been shown. (2) The applicant for registration needed to show that there was a geographical spread of users throughout the locality. (3) 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, and thus was beyond the scope of the Commons Act 2006. (4) She had also imposed too high an evidential standard on the LCC, in reality requiring it to prove beyond reasonable doubt that the land was held for educational purposes, and ignored the presumption of regularity. (5) The Inspector ought to have concluded on her findings that the LCC had exercised control over the land, and so had given permission for its use; her conclusion that there had been no permission was irrational.
The statutory provisions
The Commons Act 2006 s15, so far as material, provides that an application may be made for the registration of land as a town or village green where: "(2)…(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right lawful sports and pastimes on the land for a period of at least 20 years; (b) they continue to do so at the time of the application…". The application was later put forward, without objection, on the alternative basis that, if the use had ceased in 2008, subsection (3) could be relied on since the application was made within the defined relevant period after cessation. Nothing turned on that; the outcome would have been the same; the 20-year period either ended in 2008 or February 2010. The words "or of any neighbourhood within a locality" were first introduced into the Commons Registration Act 1965 by the Countryside and Rights of Way Act 2000.
The decision letter (DL)
I start with the Inspector's description of the land covered by the application.
"10. Moorside Fields (the Application Land) consists of 5 parcels of land, which throughout the inquiry were referred to as Areas A, B, C, D and E and are shown as such on the plan which accompanied the application. Area A, referred to as the meadow was, until recently, an undeveloped plot of land. It is adjacent to Moorside Primary School (the School) and is currently being used to facilitate the construction of an extension at the rear of the School. Area B is a mowed field, referred to as the school playing field and both it and Area A are currently surrounded by fencing.
11. Areas C and D border Areas A and B. In the past they have been the subject of mowing tenancy agreements but these ceased in around 2001. They are separated from each other and from Areas A and B by the hedges and in places are overgrown with brambles. Area E, also adjacent to the School, is currently overgrown and difficult to access. At some times of the year it contains a pond.
12. To the immediate west of Areas C and D and separated from them by a shallow watercourse known as Burrow Beck, is a further area of land within LCC's ownership known as the Barton Road Playing Field (the BRP Field). Areas C and D are accessible from the BRP Field by crossing a stone bridge or via stepping stones."
It was Area E which she held should not be registered because there was insufficient evidence of its use over the 20-year period, largely attributed to its state, rather than to any purpose for which it was held.
Areas E and A are adjacent to the school, C is furthest from it. To the west and south west of the application site is a recreation ground. The application site is within a very largely residential area.
The site is wholly within what is now Scotforth East Ward of Lancaster city Council. Scotforth West Ward is to its west, John O'Gaunt Ward to the north, and now University Ward lies to the south of Scotforth East Ward. The site is in the northern part of Scotforth East Ward, close to its boundary with John O'Gaunt Ward and rather further from University Ward.
Regulation 15 of the 2008 Regulations requires the application for registration to be made on a form provided by the registration authority. The form required the applicant to state the locality or neighbourhood relied on. The applicant said that the locality was Scotforth East, Scotforth West and John O'Gaunt Wards. The neighbourhoods relied on within that locality were defined and marked on a map in which the application site was just off centre. The Inspector accepted an amendment sought by the applicant, without objection from LCC, so that the application she considered relied on Scotforth East Ward alone as the "locality" and a revised "neighbourhood" plan, which included some postal districts in John O'Gaunt Ward and a small area towards the south within Scotforth East.
Ground 1: the meaning of "locality"
The Inspector recorded that, although a considerable amount of the evidence at the Inquiry dealt with the neighbourhood, the Applicant in closing submissions relied primarily on Scotforth East Ward, that is, she relied primarily on the locality; DL [14–16]. The Inspector held that Scotforth East Ward was a qualifying locality for the purpose of s15 of the 2006 Act. It was not in dispute but that an electoral ward could be a qualifying locality. What was in dispute was whether that defined locality had to have existed in the same administrative form for the period of 20 years relied on. The Inspector rejected LCC's argument that that was necessary. Having done so, she then concluded that it was not necessary to consider the evidence and submissions made with regard to the claimed neighbourhood, and only considered whether the requirement was met that a significant number of people from the locality had used the land for 20 years. It is clear the Scotforth East Ward which she considered was the Ward as reduced in 2001.
Mr Edwards submitted, as LCC had done at the Inquiry, that the law required the locality to retain the same form throughout the 20-year period relied on by the applicant. Although there always had been a ward known as Scotforth East Ward, in 2001 the City wards were abolished and new ones created. At DL [17], the Inspector described the Ward changes in recording LCC's submissions:
"17. … prior to 2001, Scotforth East Ward extended to the south and incorporated the University of Lancaster. Article 2 of the City of Lancaster (Electoral Changes) Order 2001 (the 2001 Order) abolished the existing City Council wards and created new wards in their pace, including a ward called Scotforth East which excluded the University. Although the 2001 Order uses the structure of abolishing existing wards and creating new ones, the abolition and creation were simultaneous when the Order came into effect and there is no time within the relevant period when a locality known as Scotforth East Ward did not exist. The question therefore is whether the changes to the boundaries of the electoral ward have the effect that it cannot be relied upon for the purposes of section 15 of the 2006 Act…
21…Scotforth East Ward has been in existence throughout the relevant period and the change in boundary of the ward to remove the University, does not seem to me to have altered the identifiable community of Scotforth East."
Mr Edwards submits that this approach involved an error of law, and he put considerable emphasis on the fact that the former Ward was abolished; it was not just a...
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