The King (on the application of Patricia Strack on behalf of The Woodcock Hill Village Green Committee) v Secretary of State for Environment, Food and Rural Affairs

Hearing date: 24 January 2024

Further written submissions: 26 and 27 March 2024

Approved Judgment

This judgment was handed down remotely at 4.07pm on 25 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Senior President of Tribunals:

Introduction

Did an inspector determining an application to deregister part of a village green and exchange adjacent land under section 16 of the Commons Act 2006 (“the 2006 Act”) fall into error by wrongly “conflating” the interests of those with legal rights of recreation over the green with the interests of those local inhabitants who had no such rights? That is the central question in this case.

On behalf of the Woodcock Hill Village Green Committee (“the committee”), the appellant, Patricia Strack, appeals against the order of Lane J. dated 24 March 2023, by which he dismissed her claim for judicial review of the decision of the inspector appointed by the respondent, the Secretary of State for Environment, Food and Rural Affairs (“the Secretary of State”), granting an application made under section 16 of the 2006 Act by the first interested party, Laing Homes Limited (trading as Taylor Wimpey) (“Laing Homes Ltd.”), to deregister part of Woodcock Hill Village Green lying to the south-west of Vale Avenue in Borehamwood, and exchange land. The second interested party, Hertsmere Borough Council, has played no part in the proceedings.

The inspector's decision letter is dated 24 May 2022. Ms Strack's claim for judicial review was issued on 2 August 2022. It was advanced on two grounds. Ground 1 was the contention that the inspector erred in law when addressing the “interests of the neighbourhood”, by proceeding on the basis that “the public” have a right to use a town or village green and by considering the interests of those living outside the “neighbourhood” as defined at the time of registration. Ground 2 asserted that the inspector failed to consider the “fallback” – that Ms Strack and others would exercise their “right to maintain and enhance the accessibility and ecological value of the release land”. Lane J. rejected Ms Strack's argument on both grounds.

The issues in the appeal

The grounds of appeal raise three issues. First, did the inspector err in conflating the rights of the residents of the defined neighbourhood on which the registration of the village green was based – to whom I shall refer as “qualifying inhabitants” – with the interests of those who held no such rights? Second, did he misinterpret and misapply the Government's “Common Land Consents Policy”? And third, did he err in his consideration of the “fallback”?

The legislation for the registration and deregistration of town and village greens

Section 15 of the 2006 Act provides for the registration of town and village greens. It replaced the previous statutory regime for registration under the Commons Registration Act 1965 (“the 1965 Act”). It makes provision for the registration of new town and village greens where, among other things, subsection (2), subsection (3) or subsection (4) applies. One of the relevant conditions in each of those three subsections is that “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 for a period of at least 20 years” (subsections (2)(a), (3)(a) and (4)(a)). This provision mirrored the wording of section 22 of the 1965 Act, as amended by section 98 of the Countryside and Rights of Way Act 2000 (“the 2000 Act”), which had added “any neighbourhood within a locality” as a category of those who could apply to register a town or village green.

Section 16 of the 2006 Act provides a statutory mechanism for deregistration and exchange of land. It states:

“16. Deregistration and exchange: applications

(1) The owner of any land registered as common land or as a town or village green may apply to the appropriate national authority for the land (“the release land”) to cease to be so registered.

(2) If the release land is more than 200 square metres in area, the application must include a proposal under subsection (3).

(3) A proposal under this subsection is a proposal that land specified in the application (“replacement land”) be registered as common land or as a town or village green in place of the release land.

…

(6) In determining the application, the appropriate national authority shall have regard to –

(a) the interests of persons having rights in relation to, or occupying, the release land (and in particular persons exercising rights of common over it);

(b) the interests of the neighbourhood;

(c) the public interest;

(d) any other matter considered to be relevant.

…

(8) The reference in subsection (6)(c) to the public interest includes the public interest in –

(a) nature conservation;

(b) the conservation of the landscape;

(c) the protection of public rights of access to any area of land; and

(d) the protection of archaeological remains and features of historic interest.

…”.

Section 16 replaced section 147 of the Inclosure Act 1845, which had permitted exchange of land where it “would be beneficial to the Owners of such respective Lands”. It provided for regard to be had to a broader set of interests.Paragraph 7.3 of the Explanatory Memorandum to the Deregistration and Exchange of Common Land and Greens (Procedure) (England) Regulations 2007, S.I. 2007 No. 2589 (“the 2007 Regulations”) explains how the statutory provisions for deregistration were intended to work:

7.3 … This measure enables an application for exchange to be considered under a modern regime, which provides for a proper balance between those who are involved in the exchange and those who are affected by it. This includes taking account of the interests of common rights holders, the neighbourhood (i.e. local inhabitants) and the wider public interest, including in particular nature conservation, the conservation of the landscape, and the protection of public access rights.”

Section 17 of the 2006 Act provides:

“17. Deregistration and exchange: orders

…

(5) Where immediately before the relevant date any rights are exercisable over the release land by virtue of its being, or being part of, a town or village green –

(a) those rights are extinguished on that date in respect of the release land; and

(b) where any replacement land is registered in its place, those rights shall become exercisable as from that date over the replacement land instead.

…”.

The Common Land Consents Policy

The Common Land Consents Policy, published by the Department of Environment, Food and Rural Affairs in November 2015, provides guidance on the determination of applications under section 16(1) of the 2006 Act.

In section 3, “Protecting commons – our policy objectives”, paragraph 3.1 sets out that the 2006 Act “enables government” to “safeguard commons …”, to ensure their “special qualities … are properly protected”, and to “improve the contribution of common land to enhancing biodiversity …”.Paragraph 3.2 states that, to achieve the objectives, the consent process “seeks to achieve”, among other things, that “[our] stock of common land and greens is not diminished so that any deregistration of registered land is balanced by the registration of other land of at least equal benefit”.

In section 5, “Other Considerations”, paragraph 5.1 states:

“5.1 The Secretary of State's primary objective in determining applications under section 16(1) is to ensure the adequacy of the exchange of land in terms of the statutory criteria. Therefore, even where an applicant makes an otherwise compelling case for an exchange, the Secretary of State's expectation will be that the interests (notably the landowner, commoners, and the wider public) will be no worse off in consequence of the exchange than without it, having regard to the objectives set out in Part [3] above. Her expectation is more likely to be realised where the replacement land is at least equal in area to the release land, and equally advantageous to the interests. … An inadequate exchange will seldom be satisfactory, whatever the merits of the case for deregistration might otherwise be.”

“Modern Town and Village Greens – Drawing the Threads Together”

The parties drew our attention to Lord Carnwath of Notting Hill's paper entitled “Modern Town and Village Greens – Drawing the Threads Together”, which was published in the “The Conveyancer and Property Lawyer” in 2023 ( (2023) 87 Conv., Issue 3, p.223). In that paper Lord Carnwath sets out a cogent argument for reform of the statutory and policy framework for town and village greens. He is particularly critical of the drafting of section 16 and the policy relating to it in the Common Land Consents Policy. He observes (on p.231) that “the drafting of this part...