R Zani v Oxfordshire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting,His Honour Judge Richard Foster |
| Judgment Date | 2013 |
| Neutral Citation | [2013] EWHC 1593 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5704/2012,CO/3787/2013 |
| Date | 2013 |
[2013] EWHC 1593 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Richard Foster
sitting as a Judge of the High Court
CO/5704/2012
THE DEPUTY JUDGE: This application relates to land at Blackbird Leys in the City of Oxford. The Claimant lives at 402 Pegasus Road, Blackbird Leys, Oxford.
The Defendant is the Registration Authority under section 15 of the Commons Act 2006, which as relevant provides as follows:
i. "15. Registration of greens
(2) 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 …
(3) This subsection applies 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 time of the application but after the commencement of this section; and
(c) the application is made within the period of two years beginning with the cessation referred to in paragraph (b)."
The Defendant is the owner of the land the subject of these proceedings, but Oxford City Council, the Interested Party, is a lessee of part of the land and a licensee of another part. Helpfully attached to the Claimant's skeleton argument is a coloured plan which shows the land and divides it into A, B and C, each of which has a different legal status. The application site includes the area edged on that plan made up of three areas; A, B and C.
Area A forms part of the land which was leased to Oxford City Council by the County Council in 1987. B is a playing field subject to a shared use agreement made in 1987 between Oxfordshire County Council and Oxford City Council. Land C is land made available for use by local people under section 164 of the Public Health Act 1875.
This is an oral renewal hearing seeking permission to proceed with judicial review, Collins J having refused permission on the papers on 15 January 2013. He regarded the Court of Appeal decision inBarkas, which I will return to, as being fatal to this claim. In any event, he was of the view that the claim had not been made promptly.
I remind myself that this is a renewal application for permission and as such, I only have to be satisfied that there are arguable grounds for a judicial review if permission is to be granted.
This application only relates to Lands A and B, not Land C which, it is conceded, was used by local inhabitants by right and not as of right. Land B is owned by the Defendant under powers under section 19 of the Local Government (Miscellaneous) Provisions Act 1976, sub-section 1.
Section 19(1) states this:
i. "A local authority may provide, inside or outside its area, such recreational facilities as it thinks fit and, without prejudice to the generality of the powers conferred by the preceding provisions of this subsection, those powers include in particular…"
It then lists a number of examples of powers which can be exercised. Then at sub-section 2:
i. "A local authority may make any facilities provided by it in pursuance of the preceding subsection available for use by such persons as the authority thinks fit either without charge or on payment of such charges as the authority thinks fit."
It was during the relevant qualifying period for registration that this land was used for recreation purposes by local inhabitants as envisaged by section 19 sub-section 1. I am satisfied that following Sullivan LJ's decision inBarkas v North Yorkshire County Council [2012] EWCA Civ 1373, that it is unarguable that Land B in the circumstances was used by right and not as of right. In particular, paragraph 42 of Sullivan LJ's judgment says this:
i. "The local inhabitants can fairly be said to have a statutory right to use land which has been "appropriated" for lawful sports and pastimes because the local authority, having exercised its statutory powers to make the land available to the public for that purpose, is under a public law duty to use the land for that purpose until such time as it is formally appropriated to some other statutory purpose…"
I am satisfied that although the usage inBarkas was a different statutory provision, the decision by Sullivan LJ so far as Land B is concerned is fatal to this claim.
Land A, however, falls into a different category. Although that land is also held under powers under section 19 of the 1976 Act, Land A is the subject of a lease between Oxfordshire County Council and Oxford City Council. It is at least arguable that in view of the terms of that lease between the Defendant and the Interested Party, that, to use Sullivan LJ's words, it cannot necessarily be fairly said that local inhabitants have a statutory right to use the land. If there were such a right the Defendant would not have been in a position to enter into the lease in the terms that it did.
In particular, I refer to the covenant which is at page 212 of the bundle which I have been referred to in the proceedings which says this:
i. "The land of Land A is not to be used or any part or parts thereof for any purposes other than as a recreation, social or leisure centre."
I am satisfied that it is at least arguable that the terms of the lease amount to "appropriation for some other statutory purpose" an envisaged by Sullivan LJ inBarkas.
Before I grant permission on that basis, I need to consider the issue of delay. The interested party who appears today and whose arguments are adopted by the Defendant does not put delay forward on any particular question of prejudice being suffered, but rather that, looking at the chronology of the events, the Claimant has not acted with alldue expedition and that akin to planning applications when they are sought to be challenged in this Court, there is a greater duty than otherwise might be the case to bring such proceedings expeditiously.
Given my ruling about upon the arguability issue, in any event, as regards Land A and bearing in mind no specific prejudice is put forward by the interested party, I am satisfied that any issue of delay should not stand in the way of judicial review proceedings. That issue can, of course, be revisited and re-argued at the substantive hearing in the event of a finding in favour of the Claimant when it comes to the issue of any discretionary remedy in this matter. I, therefore, grant permission to proceed with judicial review upon the limited ground which I have set out in this ruling.
The only final matter is the question of any stay pending the consideration by the Supreme Court of the Court of Appeal decision inBarkas. Barkas is a strong judgment by Sullivan LJ in the Court of Appeal. The Court of Appeal refused permission. I am told that an application is pending to the Supreme Court for permission which has not been as yet and might not be given.
In those circumstances, it would be wrong to impose a stay and I do not do so. Of course, if permission is granted to proceed to the Supreme Court, then different considerations might apply. At that stage, there would be no difficulty in a further application being made to this Court.
THE DEPUTY JUDGE: Perhaps I can now deal with counsel with any consequential orders or directions arising from that ruling.
MR EDWARDS: Yes. My Lord, so far as any matters of directions are concerned, I have had an opportunity to discuss the matter with Mr Petchey in the short adjournment. I have three applications for directions. The first is that the hearing of the substantive element of this claim be expedited such that it is heard by the end of this term —
THE DEPUTY JUDGE: Yes.
MR EDWARDS: — with a time estimate of one day.
THE DEPUTY JUDGE: Obviously, this Court is very busy, as you well know.
MR EDWARDS: Yes, I am very well aware of that.
THE DEPUTY JUDGE: There is a plea for expedition on many cases. What is so special about this case as opposed to any other planning or similar cases?
MR EDWARDS: Well, my Lord, I rely entirely on the matters set out in Mr Thomas' witness statement that I referred the Court to before the adjournment.
THE DEPUTY JUDGE: Yes.
MR EDWARDS: My Lord, there is, at a very advanced stage, a proposal to provide a new state of the art swimming pool to serve the people of Oxford against a background of there being particular need to do so. The delivery of that facility is the subject of a contract which is already in jeopardy. The longer that it takes this case to be heard and determined, the greater the risk there is to that contract coming to an end with all sorts of consequential difficulties.
THE DEPUTY JUDGE: Yes.
MR EDWARDS: In addition, my Lord, they are prompting me on this, as your Lordship is aware from the —
THE DEPUTY JUDGE: The funding.
MR EDWARDS: The funding issue is also in jeopardy. So, my Lord, those considerations, given this is a public project, put the matter in a particular category which would justify the Court allowing an expedited hearing.
THE DEPUTY JUDGE: Yes. Is there any need for any further material in this case? There is quite enough, I would have thought.
MR EDWARDS: My Lord, there is not. I can assist your Lordship further with that in the sense that the second direction that is sought is to dispense with a...
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