R v Sunderland City Council, ex parte Beresford

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMRS JUSTICE SMITH
Judgment Date14 Nov 2000
Judgment citation (vLex)[2000] EWHC J1114-7
Docket NumberCASE NO: CO/2064/2000

[2000] EWHC J1114-7

IN THE high court of justice

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

ROYAL COURTS OF JUSTICE

STRAND, LONDON,

WC2A 2LL

Before:

Mrs Justice Smith

CASE NO: CO/2064/2000

The Queen
and
The City of Sunderland
Appellant
Ex Parte
Pamela Beresford
Respondent

Mr D. Edwards (instructed by Southern Stewart & Walker 157 Prince Edward Road, South Shields, Tyne & Wear) for the Appellant

Mr P. Petchey (instructed by Mr. Colin Langley, City of Sunderland, Civic Centre, Sunderland SR2 7DN) for the Respondent

MRS JUSTICE SMITH

Introduction.

1

This is an application for judicial review, brought by permission of Moses J, of the decision of the Licensing Committee of the Council of the City of Sunderland on 27 th April 2000, when they refused the application of Mrs Pamela Beresford and 3 other residents of Washington, Tyne and Wear, to have registered land known as the 'Sports Arena' at Washington, as a town or village green pursuant to section 13 of the Commons Registration Act 1965 (the Act).

2

The Act provides a statutory framework for the registration of common land and town and village greens. Under section 2, local authorities were appointed as registration authorities for the purposes of the Act and by section 3 are required to maintain a register of common land and town and village greens within their area. Washington is within the City of Sunderland.

3

The Act and regulations made thereunder provided that all common land and town and village greens were to be registered within 5 years. Any land not so registered by 2 nd January 1970 was deemed not to be common land or a town or village green. However, by Section 13 of the Act, the register could be amended to include any land which became common land or a town or village green after that date. An application to amend the register was to be made to the registration authority. Any person aggrieved by the inclusion of any land by amendment of the register has, by section 14, a right of appeal to the Chancery Division of the High Court. There is no right of appeal against a refusal to amend the register.

4

By section 22, a 'town or village green'is defined as land which has been allocated by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports or pastimes or on which the inhabitants of any locality have indulged in such sports or pastimes as of right for not less than 20 years. The application in the present case was based on the contention that the inhabitants of Washington had indulged in sports or pastimes on the Sports Arena as of right for more than 20 years. The Council of the City of Sunderland decided that although the inhabitants of Washington had indulged in sports and pastimes on the Sports Arena for more than 20 years, they had not done so 'as of right'but with the permission or licence of the landowner.

The facts.

5

The Sports Arena lies just south of the town centre of Washington. Since 1996 it has been owned by the City Council. Washington used to be a small village but in about 1970 the Washington Development Corporation (WDC) bought and redeveloped a substantial area of land pursuant to the provisions of the New Towns Act 1965. A new town centre was laid out including, amongst other things, a shopping centre and many community facilities including provision for leisure activities. A park was created which was later to become known as the Princess Anne Park. Adjacent to the park, but separated from it by a wooded mound, there was laid out a grassed area which became known as the 'Sports Arena'. For the moment, I say nothing more about what the WDC then intended should happen to this site in the future. From the time it was first laid out, it has been used by the inhabitants of Washington (and others) for sports and recreation.

6

In about 1977, the WDC erected two rows of wooden benches in a U shaped formation round three sides of the arena. These have every appearance of being intended for the use of spectators watching sporting events. In about 1979, they installed an all-weather cricket wicket. Apart from that, the land is just a grassy area; no pitches have ever been marked out; there are neither goalposts nor a running track. The grass has always been kept mown at public expense.

7

The WDC was wound up in 1989 and transferred all its assets to the Commission for New Towns (CNT). These included the Princess Anne Park and the Sports Arena as well as many other properties and sites. In 1991, the CNT transferred all the community-related sites and buildings to the Local Authority. These included the Princess Anne Park but not the Arena. That was retained by the CNT because they regarded it as having some potential commercial value. However in 1996, they transferred the Arena to the Local Authority, subject to a covenant restricting any future development to a community-related purpose.

8

In 1998, the Local Authority granted planning permission for the erection of a College of Further Education on a site which incorporated the Arena. It considered that such a project would satisfy the restrictive covenant. The land was to be sold to the City of Sunderland College and the proceeds of sale were to go, almost exclusively, to the CNT.

9

There was some local opposition to the planning application, in particular from inhabitants who did not wish to lose the use of the Arena for sport and recreation. A pressure group was formed, known as Washington First, of which Mrs Beresford was a member and the group campaigned against the project. They lost the first round of the fight, which ended with the grant of planning permission. So, in November 1999, four members of the group, all inhabitants of Washington, applied to the Council to amend the register to include the Arena as a town green.

10

The Council delegated consideration of the matter to their Licensing Committee.

The Director of Administration prepared a report setting out the history of the land, so far as it could be ascertained from the available documents and advising the committee as to the questions which the law required them to answer in dealing with the application. On 27 th March, the Committee visited the site. On 27 th April, they heard submissions from the applicants and from objectors (mainly the City of Sunderland College). They refused to amend the register to include the arena as a town green. As there is no right of appeal against a refusal, the applicants designated Mrs Beresford to seek judicial review.

The Material considered by the Committee.

11

The Director of Administration's Report comprised a description of the site and, at section 2, an account of its history and status, so far as could be ascertained from the available documents. These were few, probably because of the changes in ownership and the dissolution of the WDC. However, the archive contained the following:

(a) A 1967 Planning Brief from the Washington New Town's Chief Architect's office from which it appears that a Sports and Recreation Centre was planned which would include a sports hall, a swimming bath and an outdoor stadium, to comprise an athletics track and football pitch with provision for seating.

(b) A document dated 1969 entitled 'Proposal under section 6(1) of the New Towns Act'which referred to a proposal in the 'Master Plan Report' that there should be a major amenity complex comprising a swimming bath, sports hall, outdoor stadium and youth centre.

(c) The Washington New Town Plan of 1973, in which the Sports Arena site was identified as parkland/open space/major playing field.

(d) The most informative document in the archive was a handwritten draft report to the WDC's Chief Officer's Committee, dated 1982. This shows that at that time, the upgrading of the Arena was under consideration. The draft report recounted the history of the arena to that date. It referred to a Board (WDC) paper 132/77 (presumably dated 1977) which said that until a sports complex could be provided, the arena was to be used for 'recreational sporting use and other activities on a town scale such as jazz band parades, displays and sporting events'. There was also reference to documents dated 1978 which spoke of a 1977 'Scheme for Phased Development of a Town Centre Sports Complex'for which the Arena would be developed to include a 'tartan-type track and a grandstand'. It was said that in 1980, the Board (WDC) had requested that the level of publicity for the Arena should be increased; some minor works of improvement were carried out in anticipation of increased usage. It said that the Sports Turf Research Institute had advised that complete reconstruction of the Arena would be required if the arena were to be developed as an athletic field and football pitch. The WDC had the option of putting the work in hand or leaving the arena 'in its current little used condition until such time as a sports hall facility is built'.

12

The Director's report referred to a 1983 report on 'Open Space Recreation'which confirmed that a stadium area had been created at Princess Park Washington for the accommodation of a running track. The Director said that the site had been transferred to the CNT in 1989 and had been retained by the CNT in 1991, when the Princess Anne Park was transferred to the Council. An Open Space Register compiled by the Council in 1992 described the land as 'an amenity open space'. An 'Open Space Recreation Report'issued by the Council in 1994 referred to the site as 'an unused track'which belonged to the CNT and whose future use was uncertain. The land was transferred to the Council in 1996 and planning permission granted...

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