Richard Naylor v Essex County Council Silverbrook Estates Ltd and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 28 July 2014 |
| Neutral Citation | [2014] EWHC 2560 (Admin) |
| Docket Number | Case No: CO/6606/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 July 2014 |
[2014] EWHC 2560 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Howell QC
Sitting as a Deputy High Court Judge
Case No: CO/6606/2013
Dr Ashley Bowes (instructed by KSN Solicitors) for the Claimant
Alan Evans (instructed by Essex Legal Services) for the Defendant
Hearing dates: 3 July 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
John Howell QC
John Howell QC:
This claim for judicial review impugns the decision of the Development and Regulation Committee of Essex County Council, taken on February 22 nd 2013, not to register an area of land in Walton on the Naze as a Town or Village Green pursuant to section 15(2)(a) of the Commons Act 2006 (" the 2006 Act"). The County Council is the relevant registration authority for its area for that purpose under the 2006 Act.
The Claimant, Mr Richard Naylor, lives near the relevant land and he has used it for recreational purposes. He was given permission to bring this claim by His Honour Judge Anthony Thornton QC, sitting as a Deputy High Court Judge, in a reserved judgment handed down in this Court on March 7 th 2014: see R (Naylor) v Essex County Council and others [2014] EWHC 90 (Admin).
The Claimant seeks to impugn the decision not to register the relevant land on the basis (i) that the Committee erred in concluding, on the basis of the information it had, that the public's use of it for lawful sports and pastimes had been "by right" during the 20 year period before the application for its registration was made, rather than being "as of right" throughout that period (as section 15(2)(a) of the 2006 Act requires); (ii) that, in any event, it failed in the duty, which it had in the circumstances, to investigate before taking the decision impugned the basis upon which Tendring District Council, the Third Interested Party, (" the District Council") had been maintaining and managing the relevant land during that period; and (iii) that it further erred in concluding that the relevant land had not been continuously used without interruption for lawful sports and pastimes in that period.
Since this is a claim for judicial review of a decision vested by Parliament in the registration authority, subject to issues of law or of rationality, the factual issues were for the registration authority to resolve: see eg R (Barkas) v North Yorkshire County Council and another [2014] UKSC 31, [2014] 2 WLR 1360, (" Barkas") per Lord Carnwath JSC at [70].
BACKGROUND
The application to register the relevant land as a Town or Village Green was made to the County Council by Ms Diana Humphreys, the Second Interested Party, on April 11 th 2011. The owner of the relevant land, Silverbrook Estates Limited, the First Interested Party, objected to its registration.
The County Council accordingly arranged for Mr Alun Alesbury, MA, Barrister at Law, (" the Inspector") to hold a non-statutory public inquiry into the application. This he did on November 6 th, 7 th and 8 th 2012. The Inspector produced a report, dated January 11 th 2013 1, that summarises and discusses the evidence and submissions to him and that contains his findings. He recommended that the application for registration should be rejected.
The County Council then gave Ms Humphreys and Silverbrook Estates Limited an opportunity to comment on the Inspector's conclusions. Ms Humphreys took
advantage of that opportunity to make further representations. The Inspector commented on them on February 1 st 2013 2.The Inspector's Report, Ms Humphrey's further representations and his comments in response to them them were all attached to a report (which also summarised those documents) which the County Solicitor made to the Development and Regulation Committee. The County Solicitor recommended the Committee to accept the Inspector's analysis and recommendation to reject the application for registration of the relevant land as a town or village green for the reasons that the Inspector had given. The Committee did so in the decision which the Claimant impugns.
Section 15 of the 2006 Act provides (so far as relevant) that
"(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)…applies.
(2) This subsection applies 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; and
(b) they continue to do so at the time of the application.
…
(6) In determining the period of 20 years referred to in subsections (2)(a)…, there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.
(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied
(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and
(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land "as of right".
In her application for its registration Ms Humphreys described the relevant land as "the triangle of grass at the town end of Mill Lane, and the adjoining sea wall to the east of Mill Lane from the drainage ditch (south) to the flood gate (north)". The main, southern (triangular-shaped) part of the site is a grassy, relatively flat area open to the
carriageway of Mill Lane on its west side, with a small drop to the level of Mill Lane for some of its length. The other part of the site, on the north- east side of the triangular area, and then running for some distance further northwards, is a relatively steep-sided sea defence bank with a pedestrian path running along its top, although the path is not one which is officially recorded or recognised as such. Beyond the bank, outside the relevant land, is Walton Mere. It appears that a sea wall or bank was first constructed on the relevant land in 1954 following flooding in 1953.The Inspector found that, with the exception of one period, during the relevant period of 20 years before the application for its registration was made, the relevant land had been clearly open and generally unfenced and that it had been well maintained and tended by the District Council as some sort of publicly available open space or recreation area 3. The exception was that, for a considerable period during the summer of 1993, there were substantial civil engineering works, relating to the construction of a new higher sea wall or bank, which had effectively created that part of the land in the form that it now has. These works had affected the whole of that part of the relevant land and at least a substantial part of the larger, flatter triangular area in the southern part of the site 4.
The Inspector found that there was an important distinction between two parts of the relevant land in terms of their use. In his view there was no substantial evidence that the sea wall or bank running along (but within) the entire eastern boundary of the site had ever been used to a material extent for lawful sports and pastimes in a way that would warrant registration 5. By contrast, he found that, for nearly all of the relevant 20 year period, there had been a sufficiently continuous use of the relatively flat grassy triangle in the south for lawful sports and pastimes by a significant number of the inhabitants of the neighbourhood to support its registration 6.
The Inspector found, however, that the relevant land did not qualify for registration for two reasons 7.
First he found that the use made by local inhabitants had been "by right" during the relevant 20 year period rather than being "as of right" as required by section 15(2)(a) of the 2006 Act.
The Inspector found that the relevant land had been owned by Mr Ted Carter for a long time (apparently from 1945) until his death in 2004 and then by his executors and heirs until May 2009 when it was sold by them to Silverbrook Estates Limited 8. But, except for the period of the works in 1993, the land had been managed and maintained by the District Council, at least from 1989–90 (when it appears to have been included in a grounds maintenance contract let by the District Council), as if it were an area of public open space or parkland available and open for all to use 9. The Inspector found that it was probable that there had been a much longer term
arrangement for its management and maintenance going back to before 1974 (when, on local government reorganisation under the Local Government Act 1972, the District Council replaced Frinton and Walton Urban District Council) 10.In the Inspector's view it had to be assumed, unless there was clear evidence to the contrary, that, what the District Council had done, it had done lawfully and that it could not have done so lawfully other than in discharge of some statutory function 11. He had...
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