R (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lindblom,Lord Justice Rupert Jackson,Lady Justice Thirlwall
Judgment Date12 Apr 2018
Neutral Citation[2018] EWCA Civ 721
Docket NumberCase Nos: C1/2016/2585 and C1/2016/3267

[2018] EWCA Civ 721

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR JUSTICE OUSELEY

[2016] EWHC 1238 (Admin)

MR JUSTICE GILBART

[2016] EWHC 1715 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Rupert Jackson

Lord Justice Lindblom

and

Lady Justice Thirlwall

Case Nos: C1/2016/2585 and C1/2016/3267

Between:
R. (on the application of Lancashire County Council)
Appellant
and
Secretary of State for Environment, Food and Rural Affairs
Respondent

and

Janine Bebbington
Interested Party
And Between:
(1) R. (on the application of NHS Property Services Ltd.)
(2) Surrey County Council
Respondents
and
Timothy Jones
Appellant

Mr Douglas Edwards Q.C. and Mr Jeremy Pike (instructed by Sharpe Pritchard) for the Appellant

Mr Tim Buley (instructed by the Government Legal Department) for the Respondent

Mr Ned Westaway (instructed by Harrison Grant) for the Interested Party

Dr Ashley Bowes (instructed by Richard Buxton Environmental and Public Law) for the Appellant

Mr Jonathan Clay and Mr Matthew Lewin (instructed by Capstick Solicitors LLP) for the First Respondent

The Second Respondent did not appear and was not represented.

Hearing dates: 4 and 5 October 2017

Lord Justice Lindblom

Introduction

1

Did the concept of “statutory incompatibility” defeat an application for the registration of land as a town or village green under section 15 of the Commons Act 2006? That question arises in each of these two appeals.

2

In the first appeal the appellant is Lancashire County Council. The respondent is the Secretary of State for Environment, Food and Rural Affairs, whose inspector, Ms Alison Lea, a solicitor, granted an application under section 15 of the 2006 Act for the registration of land known as Moorside Fields, in Lancaster, as a town or village green. Some 13 hectares in extent, the land is adjacent to Moorside Primary School and is owned by the county council. On 9 February 2010 the interested party, Ms Janine Bebbington, applied to the county council as registration authority to register the land as a town or village green. The county council, as local education authority, objected. The inspector was appointed to determine the application in a “pilot” scheme under the Commons Registration (England) Regulations 2008. She held an inquiry on eight days in September 2014 and July 2015. In her decision letter, dated 22 September 2015, she concluded that four of the five areas shown on the application plan should be added to the register of town and village greens, but that the fifth should not – because its use for lawful sports and pastimes by a “significant number of inhabitants” during the relevant period had not been demonstrated. The county council challenged the registration by a claim for judicial review. That claim was dismissed by Ouseley J. in an order dated 27 May 2016. I granted permission to appeal on 8 May 2017.

3

The appellant in the second appeal is Mr Timothy Jones. The first respondent is NHS Property Services Ltd., a company wholly owned by the Secretary of State for Health, which, by a claim for judicial review, successfully challenged the registration by the second respondent, Surrey County Council, of some 2.9 hectares of land in its ownership at Leach Grove Wood in Leatherhead as a village green. The land adjoins Leatherhead Hospital, and is in the same freehold title. The application for registration was made by Ms Phillippa Cargill on 22 March 2013, with the support of Mr Jones and others. It was opposed by NHS Property Services. The inspector, Mr William Webster, a barrister, held an inquiry on five days in April and May 2015. In his report, dated 9 June 2015, he accepted that a significant number of the inhabitants of the claimed “locality” and a significant number of the inhabitants of the claimed “neighbourhood” had indulged as of right in lawful sports and pastimes on the land for at least 20 years. He rejected NHS Property Services' objection that the land was not registrable on the grounds of “statutory incompatibility”. But he found that the claimed “locality” was not a “locality”, and the claimed “neighbourhood” not a “neighbourhood”, within the meanings of those concepts in section 15 of the 2006 Act. He therefore recommended that the application for registration be refused. At its meeting on 23 September 2015 the county council's Planning and Regulatory Committee rejected that recommendation. The registration was accordingly made, on 5 October 2015. By an order dated 28 July 2016 Gilbart J. upheld the claim for judicial review, concluding that the county council had failed properly to consider the question of “statutory incompatibility”. Permission to appeal was granted by the judge. Although the county council took part in the proceedings in the court below, it has not done so before us – because of a “lack of resources”, and not because it concedes that it made “any error of law” (its Principal Solicitor's letter to the court dated 28 September 2017).

4

A complete account of the relevant facts is given in the judgments in the court below. I gratefully adopt the narrative to be found there.

The issues in the appeals

5

In the Lancaster appeal there are five issues for us to decide:

(1) whether, as Ouseley J. concluded, the concept of “statutory incompatibility” did not apply (ground 4 in the appellant's notice);

(2) whether the judge was right to endorse the inspector's finding that the county council had not demonstrated that it had held Moorside Fields for educational use (ground 3);

(3) whether the inspector erred in finding there existed a “locality” for the purposes of section 15 of the 2006 Act (ground 1);

(4) whether, as Lancashire County Council asserts, the “significant number of inhabitants” of a locality who use the land in question must be geographically “spread” across it (ground 2); and

(5) whether the inspector erred in finding that the land was used “as of right” (ground 5).

6

In the Leatherhead appeal there are two issues:

(1) whether Gilbart J. was wrong to conclude that the concept of “statutory incompatibility” applied (ground 1 in the appellant's notice and ground (a) in NHS Property Services' respondent's notice); and

(2) whether Surrey County Council's reasons for departing from the inspector's finding that there did not exist a relevant “neighbourhood” were adequate (ground (b) in the respondent's notice).

A further ground in the respondent's notice asserted that the county council's decision to register the land at Leach Grove Wood was “affected” by procedural unfairness. That ground was not pursued separately before us, but was said to be relevant to the argument on ground (b).

The statutory scheme for the registration of town and village greens

7

Section 15 of the 2006 Act, “Registration of greens”, provides in subsection (1) that “[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”. All three of those subsections apply where “(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality”, have “indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”. Subsection (2) applies where “(b) they continue to do so at the time of the application”. Subsection (3) applies where “(b) they ceased to do so before the time of the application but after the commencement of this section” and “(c) the application is made within the relevant period”, which is defined in subsection (3A) as meaning “(a) … the period of one year beginning with the cessation mentioned in subsection (3)(b)”. Subsection (4) is not relevant here.

8

In most parts of England, an application to register land as a green is determined by a commons registration authority – usually a county council or unitary authority. But in the “pilot” areas, of which the administrative area of Lancashire County Council is one, applications for registration are determined by inspectors under the 2008 regulations, and no application may later be made to the High Court for rectification of the register of town or village greens under section 14 of the Commons Registration Act 1965.

9

As Lord Hoffmann said in R. (on the application of Beresford) v Sunderland City Council [2004] 1 A.C. 889 (in paragraph 2 of his speech), the registration of land as a town or village green can have serious consequences for a landowner. Once land has been registered, rights to continue to use it for lawful sports and pastimes accrue and are vested, as enforceable civil rights, in the inhabitants of the qualifying locality or neighbourhood (see Lord Hoffmann's speech in Oxfordshire County Council v Oxford City Council [2006] 2 A.C. 674, at paragraphs 47 to 51). The land will then enjoy the protection of section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876. The landowner will not be able to use it in such a way as to interfere with the local inhabitants' rights, or build on it, or exclude local inhabitants from it.

Issue (1) in the Lancaster appeal and issue (1) in the Leatherhead appeal – “statutory incompatibility”

10

As Lord Carnwath pointed out in R. (on the application of Barkas) v North Yorkshire County Council [2015] A.C. 195 (in paragraph 66 of his judgment), it would be wrong to think that “land in public ownership can never be subject to acquisition of village green rights under the 2006 Act”. That, he said, “is demonstrated by the “Trap Grounds” case [ Oxfordshire County Council]”, where “[although] the land was in public ownership, it had not been laid out or identified in any way for public recreational use …”.

11

In R. (on the application of Newhaven Port and Properties Ltd.) v East Sussex County Council [2015] UKSC...

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