R (Lewis) v Redcar & Cleveland Borough Council and Another (No. 2)

JurisdictionEngland & Wales
JudgeMR JUSTICE SULLIVAN
Judgment Date18 July 2008
Neutral Citation[2008] EWHC 1813 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/563/2008
Date18 July 2008

[2008] EWHC 1813 (Admin)

IN THE HIGH COURT OF JUSTICE

THE ADMINISTRATIVE COURT

QUEEN'S BENCH DIVISION

Before:

Mr Justice Sullivan

CO/563/2008

Between:
The Queen on the Application of Lewis
Claimant
and
Redcar And Cleveland Borough Council
Defendant
and
Persimmon Homes Plc
Interested Party
and

Mr George QC and Mr Pike (instructed by Irwin Mitchell) appeared on behalf of the Claimant

Mr G Lawrence QC (instructed by Redcar & Cleveland BC) appeared on behalf of the Defendant

Miss R Crail (instructed by Ward Hadaway) appeared on behalf of the Interested Party

MR JUSTICE SULLIVAN

Introduction

2

In this rolled up hearing of the claimant's application for permission to apply for judicial review, with the substantive hearing to follow if permission is granted, the claimant seeks a quashing order in respect of the decision of the defendant's General Purposes and Village Greens Committee on 19th October 2007 to reject an application under the Commons Act 2006 (“the 2006 Act”) to register part of the land known as Coatham Common (“the Report Land”) in Redcar as a town or village green. The land is owned by the defendant and was used until 2002 as a golf course. The defendant wishes to see the land, together with the adjoining land, developed for a mix of leisure and residential purposes. It entered into a development partnership with the interested party and planning permission for the 'Coatham Development Project' was granted on 24th May 2007.

3

The history of the Coatham Development Project is set out in the judgment of Jackson J in R (on the application of Kevin Paul Lewis) V Redcar and Cleveland Borough Council [2007] EWHC 3166 Admin. Jackson J quashed the grant of planning permission but the interested party's appeal against that decision was allowed by the Court of Appeal on 1st July 2008 ([2008] EWCA Civ 746).

4

There had been an earlier application to register the land as a town or village green. That first application which was made on 1st March 2005 was made under the Commons Registration Act 1965 (“the 1965 Act”). The defendant appointed an independent Inspector, Mr Chapman QC, to hold an inquiry and report. Mr Chapman held a public inquiry in Redcar on 13th, 14th and 15th December 2005 and 3rd, 4th and 5th January 2006. In his report to the defendant dated 14th March 2006, (“the report”), he recommended that the first application should be rejected. The defendant accepted that recommendation and rejected the first application on 7th April 2006.

5

On 7th July 2006 the claimant filed an application for permission to apply for judicial review of that decision. His application was refused on the papers by Collins J on 22nd August 2006 and was not renewed. One of the reasons why Mr Chapman had concluded that the first application failed was because the defendant had erected in 2003 “permissive signs”, ie, signs granting the public revocable permission to use the land for recreation [176]. (References in square brackets are references to paragraph numbers in the report unless otherwise indicated). In paragraph 222 Mr Chapman concluded:

“Recreational user as of right is not continuing because user has been permissive since the permissive signs were erected in [2003]. Mr Cooper [the principal spokesman for the applicants for registration] conceded that the permissive signs were fatal to the present application as the law now stands.”

In paragraph 224 Mr Chapman pointed out that this reason for refusing registration would be reversed by the Commons Bill if it was enacted in the form then proposed. The Commons Bill became the 2006 Act which repealed the 1965 Act (see section 53 and Schedule 6 and the various commencement orders made under section 56). Section 15 of the 2006 Act provides so far as material:

15. Registration of greens

(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), ( 3) or (4) applies …

(4) This subsection applies (subject to subsection (5) [not relevant]) where —

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

(b) they ceased to do so before the commencement of this section; and

(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b).”

The commencement date for section 15 was 6th April 2007.

6

The second application to register the land as a town or village green, this time under the 2006 Act, was made on 8th June 2007. The claimant was one of the applicants. In the first application he had been one of those persons whose written evidence in support of registration had been considered by Mr Chapman. The defendant sought Mr Chapman's advice in respect of the second application. In the report he had referred to the forthcoming appeal to the House of Lords in what he referred to as the 'Trap Grounds case'. The decision of the House of Lords in that case was published on 24th May 2006: Oxfordshire County Council v Oxford City Council [2006] 2 AC 674, [2006] UKHL 25 (“the Oxfordshire case”).

7

In a further report dated 9th June 2006 (“the further report”) to the defendant, Mr Chapman considered the implications of the Oxfordshire case and advised the defendant that the decision of 7th April 2006 could not be reopened but that, even if it could, he would not alter his recommendation that the first application should be refused.

8

In respect of the second application, Mr Chapman's advice to the defendant is contained in an opinion dated 12th June 2007, a further opinion dated 29th July 2007, a second further opinion (revised) dated 13th October 2007, and a third further opinion dated 18th October 2007. It is unnecessary to rehearse the detail in those opinions because the defendant accepted Mr Chapman's advice, and the parties are agreed that that advice was, in summary, that the second application should be refused on the two grounds that are set out in paragraphs 217 and 221 of the report, as qualified by the further report:

“[217] I consider that the applicants have established 20 years recreational use of the Report Land nec vi before 1998. In that year the golf club erected signs on the Report Land which made it clear that the club was asserting that local users were trespassers. User in disregard of these signs was, in my judgment, vi. After the signs were taken down, user nec vi resumed. User as of right was thus interrupted in 1998 …

[221] Leaving aside the public footpath, I consider that the reasoning in the Laing Homes and Humphries cases squarely applies to the Report Land in the present case. Use of the Report Land as a golf course by the Cleveland Golf Course would have been in breach of the [Inclosure Act] 1857 section 12 and the [Commons Act] 1876 section 29 if the Report Land had been a town or village green. It was a use which conflicted with the use of the Report Land as a place for informal recreation by local people. It was not a use which was with a better view to the enjoyment of the Report Land as a town or village green. The overwhelming evidence was that informal recreational use of the Report Land deferred to its extensive use as a golf course by the Cleveland Golf Club. Accordingly, use of the Report Land by local people was not as of right until use as a golf course ceased in 2002.”

The relevant paragraphs in the further report are paragraphs 3.1 and 3.2:

“3.1 Relevant 20 Years

However, I found as a fact in my report that recreational user by local people as of right was interrupted by prohibitory notices in 1998 and terminated by permissive notices in 2003 (report paras 176, 217 and 219). Accordingly, it appears to me quite plain that the application must fail under the law as it now stands after the Oxfordshire ruling. Thus, even if the decision of 7th April 2006 could be reopened, my advice to the Council that the application should be rejected would be the same.

3.2. Relationship Between Golf and Other Use

The reasoning in para 221 of my report requires reconsideration in the light of the doubts cast upon some of the reasoning in the Laing Homes and Humphries cases in para 57 of Lord Hoffmann's opinion. This para of Lord Hoffmann's opinion was not directed to any of the specific issues on which the House of Lords made any order and did not raise an issue expressly discussed by any of the other law lords. Nonetheless, there was majority support for Lord Hoffmann's speech in general and these comments of Lord Hoffmann must be very carefully considered.

As I understand Lord Hoffmann's comments, he is identifying the need carefully to distinguish between two distinct points about the relationship between the user of the land (a) by (or on behalf of) the landowner and (b) by the local inhabitants.

First, he disagrees with the views of Sullivan J in the Laing Homes case and of Judge Howarth in the Humphries case that the fact that the landowner is carrying on activities during the relevant 20 year period which would be in breach of the Victorian statutes if the land had been a green necessarily disqualifies the land from becoming a new green. He says that the recreational activities of local inhabitants can create a new prescriptive green if in practice they are not inconsistent with the use of the land made by the landowner. In so far as I relied on the Victorian statutes in this part of my report, I was wrong, according to Lord Hoffmann's reasoning.

However, second, Lord Hoffmann says...

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