THE EFFECT OF RECENT COURT JUDGMENTS ON REGISTERING NEW VILLAGE GREENS

Introduction

1. The very first village green case of modern times1 concerned an application to register a local authority car park as a town or village green2 and the next important case an application to register land owned by the NHS to build a new hospital in Sudbury3. No-one suggested in these cases that because the land was owned by a local authority or was held for statutory purposes it could not be registered as a town or village green. R (Beresford) v Sunderland City Council4 concerned land held by a local authority and the House of Lords specifically called for information as to the basis on which it was held. I did not suggest that the land was not registrable because it was owned by a local authority under statutory powers, and the House of Lords did not suggest that this was the case either. Most significantly of all, the Trap Grounds case5, the application was to defeat development of a housing site owned by City Council. Declarations were sought on no fewer than ten different issues arising on the law of village greens. There was however no suggestion that because the land was held by the City Council under the Housing Act that it was not registrable as a town or village green6.

2. Where then did the principle of statutory incompatibility come from?

3. It first arose during the argument at first instance in R (Newhaven Port and Properties Limited) v East Sussex County Council7.

4. In that case there was a lot of discussion about the effect of the Port’s bye-laws. In the argument, Ouseley J raised the question of what would happen if land were registered as town or village green and the relevant Council made bye-laws under the Commons Act 1899 which were incompatible with the pre-existing bye-laws. In a case called Western Power Distribution Investments Limited v Cardiff City Council8 he had held that the City Council could not make land which was held as a park under section 164 of the Public Health Act 1875 into a nature reserve because to do so would conflict with the purpose for which the land was held, namely a park accessible to the public for recreational purposes.

5. This then led to a full blown argument that registration as a town or village green was incompatible with the statutory powers of the port.

1 I.e after Parliament had passed the Commons Registration Act 1965 providing for the registration of town and village greens. 2 I.e. New Windsor Corporation v Steed [1975] Ch 380. This concerned a customary green and the land had always been subject to recreational rights for local people, such as they were, so it would not have been an obvious case in which to argue a point about statutory incompatibility. 3 R v Suffolk County Council, ex parte Steed (1996) 75 P & CR 102 (CA). 4 [2004] 1 AC 889. 5 I.e. Oxford County Council v and Robinson 6 The land in R (Barkas) v North Yorkshire Council was also a case where land was held under Housing Act powers. As you will appreciate, however, there were rather more obvious reasons why the land should not be registered as a village green and it was these that were the focus of the case. 7 [2015] AC 1547. 8 [2011] EWHC 300 (Admin). 1

6. Ouseley J accepted this argument. He did so however basing himself on British Transport Commission v Westmorland County Council9. This was a case where the House of Lords accepted an argument in respect of a public footpath that there might not be an intention to dedidicate by a railway company in circumstances where it was reasonably foreseeable that the land over which the claimed path ran might be required for the purpose of the statutory undertaking.

7. The Registration Authority won the appeal to the Court of Appeal by arguing

(i) that Westmorland had no application because the establishment of a new town or village green did not depend upon there being an intention to dedicate: one simply looked at the words of the statute

(ii) the relevant statute (section 15 of the Commons Act 2006) didn’t say anything about land not being registrable if registration might establish a use which would inhibit the statutory purposes for which a port authority or local authority held the land.

8. In its turn, on appeal to the Supreme Court, this led to a detailed examination of the law of public rights of way in Scotland and Ireland; the landowner was able to suggest that the law of , as set out in Westmorland, applied in Scotland also, where public footpaths came about just by long use and not by implied dedication; and with reference to an Irish case, that perhaps the English law was not dependent on implied dedication either.

9. All very abstruse law. And as Lord Neuberger and Lord said in their judgment, it is only relevant by analogy. However they did find it significant in our view that historically in both English law and Scots law, albeit for different reasons, the passage of time would not give rise to prescriptive acquisition against a public authority, which had acquired land for specified statutory purposes and continued to carry out those purposes, where the user founded on would be incompatible with those purposes10.

10. Nonetheless, by the conclusion of the argument we had come a long way from the simple propositions on either side (i) that there was nothing in the Commons Act 2006 about land not being registrable if it was held for statutory purposes and (ii) that Parliament couldn’t possibly have intended land of a statutory port undertaker to be registered.

11. The landowner was running the argument in a case in which the claimed village green was submerged beneath the sea for 42% of the time: helping to underline the argument that surely Parliament could not have intended registration of the land of a port undertaker, at least.

12. So this is how the Supreme Court came to adopt an argument which, before the case in which it triumphed, no-one had ever thought of.

13. There is a further surprising aspect to the case.

14. As we have seen the argument on statutory incompatibility was first raised in the High Court. The point had not been argued before the Inspector who had held the non-statutory public

9 [1958] AC 126 (HL). 10 See paragraph 91. 2

inquiry so that there had been no consideration of the particular facts of the case; and of course the registration authority had reached no conclusion about what those facts were.

15. So before the Supreme Court, the registration authority argued that if there were a principle of statutory incompatibility (contrary to its principal submission), the matter should go back to the decision maker for redetermination11. The facts supported them thus far: the land had been used since before the First World War without any conflict arising between what the port wanted to do and what local people wanted to do.

16. The Supreme Court however did not accept the registration authority’s argument. As I read the judgment, what they are saying is that it is so obvious that there is a conflict between the powers of the port and the constraints on the land if it were registered as a town or village green, it was not necessary to call evidence to demonstrate the fact.

17. Thus was the scene set for further litigation. One guesses that at least half the land that is subject to applications for registration as a new town or village green is owned by local authorities. Local authorities are creatures of statute. All that they do is by virtue of statutory powers. To put it no higher, there is considerable scope for arguing statutory incompatibility wherever an application is made to register the land of a local authority as a town or village green.

18. In this context, one can begin by identifying two contrasting views.

19. The first emphasises the fact that there was apparently no factual conflict in the Newhaven case between the use of the port and the use by local people. Statutory incompatibility is therefore seen to be a legal issue, it says, which is all to do with potential conflict and not actual conflict. It applies to the land of local authorities and it applies wherever a local authority is able to show that there might be a conflict between the exercise of the statutory powers and use of the land by local people.

20. The second says that the principle applies only to the land of statutory undertakers, and not to the land of local authorities.

21. It would seem that neither argument can be correct.

22. If the first argument is correct, how can it be that the land was registered in the Trap Grounds case? Or in R (Lewis) v Redcar? These of course were both cases where the application had been brought to frustrate the plans of the local authority owners of the land to develop the land in question. Both cases are referred to by the Supreme Court in Newhaven without the Court suggesting that they are wrong.

23. The second argument does not seem to be correct because there is nothing in principle different between the way in which a statutory undertaker holds land under a statute and the way in which a local authority does.

11 It wouldn’t in fact have gone back because the Supreme Court had held that, by reference to the bye- laws, use of the land had been permissive and not as of right. If the Supreme Court had accepted the argument that the matter should have otherwise gone back to the decision maker, the way the matter would have been left is that the Court would have held that the principle of statutory incompatibility was capable of arising in a village green case but that it did not necessarily arise on the facts of the case before it. 3

24. Thus in a case in which I was an Inspector, I have suggested that a more nuanced view is correct. It is one thing however to articulate that suggestion; it is another to work out what it means. And as you all know, working out what the principle of statutory incompatibility now entails looking at two recently decided cases, which take markedly different approaches. These are:

R (Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs12 (Ouseley J); and

R (NHS Property Services Limited) v Surrey County Council13 (Gilbart J)..

The Lancashire Case

25. The first concerned open land adjoining a school in Lancaster. It wasn’t in dispute that it was owned by Lancashire County Council. What was in dispute was the basis on which it was held.

26. Lancashire County Council said that it was held for educational purposes and on that basis argued statutory incompatibility: they might want to build a new school on it or, at the very least, fence it off.

27. The Inspector held that its argument didn’t even get to the starting gates because it hadn’t demonstrated that the land was held for educational purposes. The judge upheld this decision. But he went on to say that, if the land had been held for educational purposes, he still would not have held that there was any statutory incompatibility between those purposes and registration of the land as a town or village green. On what basis did he reach this conclusion?

28. The key passage in Ouseley J’s judgement is at paragraphs 79 - 80. Like many of the judgments of this thoughtful judge, it may not yield its meaning at first reading. I hope you don’t think I’m making too much of a meal of analysing it in what I set out below! I first of all set out the text before seeking to unpick it:

79 If the question about the effect of registration is: can the LCC carry out some educational functions on the land if the public has the right to use Areas A-D or any of them for lawful games and pastimes, the answer is yes; some educational use can be made of the Areas A-D; open air classes and some supervised or organised recreation are not prevented by public rights of access with reasonable give and take, though they may be inhibited or made less convenient than would be the case without registration as a town green; DL [119] last sentence. The fact that the range of recreational uses is not limited to that which has taken place hitherto does not mean that give and take ceases. See R (Lewis) v Redcar and Cleveland BC [2010] UKSC 11 [47], [71], [84], [115] and notably Lord Brown at [100– 102]: registration did not carry with it a right in the future “to use the land inconsistently with such use as the owner himself has been making and wishes to continue making of it”. If the question is: can LCC put the land to whatever educational purpose it might want in the future, the answer is no. Some educational uses obviously are prevented, notably the construction of buildings or other uses such as a contractor's compound or for temporary classrooms while maintenance or expansion takes place. A different and perhaps less convenient or costlier solution would have to be found. If the question is: can LCC carry out its educational functions if the public has the right to use Areas A-D for recreational

12 [2016] EWHC 1238 (Admin). 13 [2016] 4 WLR 130. 4

purposes, the answer is yes. And it would still be yes, even if it could make no educational use of the land at all. But in Newhaven , the answer to the latter two questions would have been no, and the answer to the first, would have been: yes but only temporarily.

80 It is the third question which matters, in my judgment and, answered in the positive here, there is no statutory incompatibility …

29. We can break down the passage as follows:

79

First question

If the question about the effect of registration is: can the LCC carry out some educational functions on the land if the public has the right to use Areas A-D or any of them for lawful games and pastimes

Answer to the first question

The answer is yes; some educational use can be made of the Areas A-D; open air classes and some supervised or organised recreation are not prevented by public rights of access with reasonable give and take, though they may be inhibited or made less convenient than would be the case without registration as a town green; DL [119] last sentence.

DL [119] is a reference to paragraph 119 of the Inspector’s decision letter14. This reads as follows.

There is no evidence to suggest that the School wishes to use these areas other than for outdoor activities and sports and such use is not necessarily incompatible with use by the inhabitants of the locality for lawful sports and pastimes.

Ouseley J then refers to R (Lewis) v Redcar: the school will, he says, be able to use the land for outdoor activities.

Second question

If the question is: can LCC put the land to whatever educational purpose it might want in the future

Answer to second question

The answer is no. Some educational uses obviously are prevented, notably the construction of buildings or other uses such as a contractor's compound or for temporary classrooms while maintenance or expansion takes place. A different and perhaps less convenient or costlier solution would have to be found.

Third question

If the question is: can LCC carry out its educational functions if the public has the right to use Areas A-D for recreational purposes

14 Because Lancashire is a pilot authority, the Inspector took the decision (on behalf of the Secretary of State). 5

Answer to third question

The answer is yes.

Which is the right question

It is the third question which matters, in my judgment and, answered in the positive here, there is no statutory incompatibility …

30. Thus on the basis that the third question is correct, clearly there is no statutory incompatibility. Ouseley J is thus taking a narrow view. He underlines this by saying:

[The answer to the third [correct] question] would still be Yes, even if LCC could make no educational use of the land at all.

What answers would have been given in Newhaven to these questions?

First question

31. If the question about the effect of registration is: can Newhaven Port carry out some port related functions on the land if the public has the right to use the beach for lawful games and pastimes

Answer given by Ouseley J: Yes, but only temporarily.

Second question

32. Can Newhaven Port put the beach to whatever operational purpose it might want in the future

Answer given by Ouseley J: No.

Third question

33. Can Newhaven Port carry out its port related functions if the public has the right to use the beach for recreational purposes?

Answer given by Ouseley J: No.

34. It seems to me that the answer to third question is only correct if you interpret the ability to carry out port related functions in a particular way, focusing on the beach and not the port area as a whole.

Further consideration by Ouseley J in paragraphs 80 – 81

35. What he is saying is that Newhaven Port had specific powers and duties in relation to the beach which were incompatible with registration. LCC had general powers (albeit in respect of educational functions) in respect of the land. So he says, of Question 3:

That is going to be a hard test to satisfy for public bodies with general functions which do not specifically or in reality have to be performed on the land in question15.

15 See paragraph 81. 6

36. But he does not rule out the answer No to question 3. Thus if LCC had demonstrated (for example) that the land was the only site on which they could build a new school, I think that in Ouseley J’s view they would have been successful.

The Surrey case

37. The Surrey case concerned open land at Leatherhead Hospital. Until 1990, hospital land was essentially Crown Land, vesting first in the Minister of Health and the Secretary of State. In 1993 Leatherhead Hospital was transferred to the Epsom Health Care NHS Trust; in 2002 to the Epsom and St Helier NHS Trust; in 2002 to the East Elmbridge and Mid Surrey Primary Care Trust; in 2006 to Surrey Primary Care Trust; in 2013 to NHS Property Services Limited. If nothing else, a vignette of on going change in the NHS over the last 25 years!

38. Gilbart J set out at some length the statutory purposes for which the land was and had been held: essentially for the purposes of providing hospital accommodation. As regards those purposes, Gilbart J said:

No-one has suggested that the land in its current state would perform any function related to those purposes, and the erection of buildings or facilities to provide treatment, or for administration of those facilities, or for car parking to serve them, would plainly conflict with recreational use … Indeed, it is very hard indeed to think of a use for the land which is consistent with those powers, and which would not involve substantial conflict with use as a village green. A hospital car park, or a clinic, or an administrative building, or some other feature of a hospital or clinic would require buildings or hard standing in some form over a significant part of the area used16.

39. (Perhaps there was a failure of imagination here. Many of you will recollect the case of R ( and Buckinghamshire Mental Health NHS Foundation Trust) v Oxfordshire County Council17. Your first thought may be that if registration of NHS land may be successfully resisted in the case of NHS land, there is potentially scope for deregistration of the land in that case. Your second thought may be that here was an example of open space which was held by the NHS for that purpose. Our image of nineteenth century mental hospitals may be of grim places, and perhaps they were, but they did pursue enlightened policies. Thus the Warneford Hospital provided a large area for walking out and for games and it was this land which was the subject of the application for registration.)

40. Once Gilbart J had reached this conclusion, there was only going to be one conclusion:

… A hospital car park, or a clinic, or an administrative building, or some other feature of a hospital or clinic would require buildings or hard standing in some form over a significant part of the area used … It is not relevant to the determination of the issue that the land has not in fact been used for the erection of hospital buildings or used for other hospital related purposes. The question which must be determined is not the factual one of whether it has been used, or indeed whether there any plans that it should be, but only whether there is

16 See paragraphs 134 – 135. 17 [2010] JPL 1106. 7

incompatibility as a matter of statutory construction … Given those conclusions, it is my judgment that there is a conflict between the statutory powers in this case and registration18.

41. But what was he saying about Lancaster? Isn’t the answer to Ouseley J’s third question

Can NHS Property Services Limited carry out its health related functions if the public has the right to use the land for recreational purposes?

Yes, it can?

42. Gilbart J suggests a different approach based not on what is actually proposed to be done with the land by the statutory holder of it but purely on analysis of the statutory powers.

43. A judge at first instance is entitled to differ from a fellow judge, but they don’t like doing it. What Gilbart J suggested is that land held for the purposes of education by a local authority might be different:

By contrast, it is easy to think of functions within the purview of education, whereby land is set aside for recreation. Indeed, there is a specific statutory duty to provide recreational facilities, which may include playing fields, and other land, for recreation, the playing of games, and camping, among other activities—see section 507A Education Act 199619.

44. Section 507A is as follows:

(1) A local authority in England must secure that the facilities for primary and secondary education provided for their area include adequate facilities for recreation and social and physical training for children who have not attained the age of 13.

(2) For the purposes of subsection (1) a local authority may– (a) establish, maintain and manage, or assist the establishment, maintenance and management of– (i) camps, holiday classes, playing fields, play centres, and (ii) other places, including playgrounds, gymnasiums and swimming baths not appropriated to any school or other educational institution, at which facilities for recreation and social and physical training are available for persons receiving primary or secondary education; (b) organise games, expeditions and other activities for such persons; and (c) defray, or contribute towards, the expenses of such games, expeditions and other activities (emphasis supplied).

45. However the power is not available to provide playing fields for the public20. (Obviously the fact that the power exists means that, as a matter of fact, there will be land laid out as open

18 See paragraphs 135 – 137. 19 See paragraph 135. 20 Gilbart J’s approach here surely suggests that no land of a local authority will registrable as a town or village green, either because its use is potentially incompatible with eg educational use or, alternatively, its use actually is as public space, in which case it will not be registrable because use of it is by permission (see Barkas). 8

space over which local people will be able to assert a village green right. But surely a Health Authority can lay out grassed areas around its hospitals21).

46. More broadly, Gilbart J pointed to the broad power contained in section 120 of the Local Government Act 1972:

(1) For the purposes of— (a) any of their functions under this or any other enactment, or (b) the benefit, improvement or development of their area, a principal council may acquire by agreement any land, whether situated inside or outside their area (emphasis supplied).

47. This involves saying, I think, that if the local authority is moving forward with a proposal for a new shopping centre in respect of land held under section 120 (1) (b) that would not preclude the land from being registrable.

48. It is suggested that neither approach to statutory incompatibility is entirely convincing.

49. What requires serious consideration is whether the test articulated by Ouseley J in Newhaven at first instance may not be right, namely whether at the time of registration it was reasonably foreseeable that registration would conflict with the exercise of the statutory authority’s statutory powers.

50. Both Lancashire and Surrey may go to appeal22. Either way one may be confident that the courts have not said that last word about the principle of statutory incompatibility.

51. Two final words on this.

52. First, on a practical note, there may be merit in a registration authority deferring making a decision about registration of land where statutory incompatible, if this be reasonable in the circumstances.

53. There is venerable authority for this. Oxfordshire County Council’s decision in the Sunningwell case was in 1996. It was not until 24 June 1999 that the House of Lords handed down its judgment. In the meantime, as some of the older ones here today will recall, a lot of village green applications were put on hold.

54. Second, there is in relation to the principle of statutory incompatibility a very interesting question as to when it is to apply. In the simplest terms, the date of application and the date of registration present two rival contentions. There is no easy answer; but one may be confident that what the Court will not sanction is a situation where a local authority by its actions post application is able to improve its position: it will be recalled that the Supreme Court had very little difficulty in holding that an application could not be defeated by putting up a sign saying Trespassers keep out! after the application to register had been made23.

21 And recreational areas as in the Warneford case. 22 Permission was given by the judge in Surrey. 23 In Oxfordshire County Council v Oxford City Council and Robinson. 9

Other points from the cases

Giving reasons

55. In the Surrey case there had been a non-statutory public inquiry over 5 days. The Inspector recommended that the application be rejected but only on the grounds that the claimed neighbourhood was not sufficiently cohesive to be a neighbourhood.

56. The officer recommended that the application be rejected for that reason.

57. Members had a discussion about it and decided that there was a neighbourhood. It sounds quite a good discussion24 and, deciding that there was a neighbourhood, they decided that the land should be registered.

58. The decision was then challenged by the landowner on the basis that the registration authority hadn’t given reasons for its decision.

59. In order to succeed, the landowner had to show that there was a duty to give reason for the decision. There is a long discussion of this25 but, not surprisingly, Gilbart J held that there was a duty to give reasons.

60. This is, of course is a duty to give reasons for registering land as a town or village green. The position where the registration authority refuse to register land as a town or village green is simpler: the regulations require reasons to be given26. You might think, therefore, that if reasons have to be given for refusal it is all the more important that they be given for registering. However it was not “spelled out” and arguably the specific identification of a duty to give reasons in one case was intended to exclude it in the other. Surrey has laid that argument, if indeed there ever was anything in it.

61. The question of course was the adequacy of the reasons. The problem for the landowner was that the Inspector had said

In my view, it must, I think be substantially a matter of impression whether the claimed area is a neighbourhood or not.

62. The Committee held:

Notwithstanding the Inspector’s view, members formed a different impression.

Touche!

63. The Court was going to be very reluctant to overturn the Committee’s view. That said, what you have in the Inspector’s Report and the Report are two competing assertions. They cannot

24 It is set out in the Annex. 25 See paragraphs 96 – 107. 26 See regulation 9 (2) of the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 (SI 2007 No 457). 10

both be true, and this being so it is unhappy that the land might end up being registered on a fallacious basis27.

Polling District not a locality

64. In the Surrey case the registration authority had proceeded on the basis that there was a relevant neighbourhood that could be relied upon. However the applicant for registration had also relied upon a polling district. In his judgment, Gilbart J said

As [counsel for NHS Property Services Ltd] effectively accepted in his submissions in response, an electoral ward is beyond question a locality for the purposes of the CA 2006 . It is also quite plain that the polling district was not a locality for those purposes, and no-one suggested to me that it could be. I am bound to observe that it is very puzzling that the original application … could ever have argued the case in the way it did on the first limb. The critical test was always that of “neighbourhood”28.

65. This is obiter, but of course will be cited wherever applicants seek to rely on polling districts.

66. There is a strong argument that Gilbart J is wrong about this. The counter argument is that by insisting that a locality must be an administrative area known to law what the common law (incorporated in turn into the Commons Registration Act 1965 and then the Commons Act 2006) was requiring certainty – which a polling area provides.

Spread

67. You will all be familiar with the argument that there has to be a spread of users across the identified locality or neighbourhood.

68. This argument got short shrift (although quite extended treatment) by Ouseley J in the Lancashire case29. (There is a slight irony in the clinching argument being that there is nothing about this expressly in the Act: there being nothing expressly in the Act about statutory incompatibility.) Very much on the back of this, the argument failed also in R (Allaway) v Oxfordshire County Council30, where the great majority of the users came from within 200 yards of the site and the relied on locality was Faringon, a town of c7,000 inhabitants.

69. In Allaway the argument was made by refrence to paragraph 65 of Lord Carnwath in Barkas:

It follows that, in cases of possible ambiguity, the conduct must bring home to the owner, not merely that “a right” is being asserted, but that it is a village green right.

27 In support of his conclusion that the reasons had to be given for a decision to register land, Gilbart J referred to the fact that the only way registration could be challenged was by way of judicial review (see paragraph 100). This will be true of the pilot areas (and now by extension, Cumbria and North Yorkshire), but elsewhere section 14 of the Commons Registration Act 1965 will still be available: see section 4 of the Commons Act 2006 (Commencement No 2, Transitional Provisions and Savings) (Engand) Order (SI 2007 No 456). 28 See paragraph 95. 29 See paragraph 30 [2016] EWHC 2677 (Admin). 11

70. This echoes what he said in Steed31:

To state the obvious, a town or village green, as generally understood, is an adjunct of a town or village or something similar. As such it may be contrasted with open spaces of various kinds, for example recreation grounds maintained by local authorities for the public generally ( e.g. under the Open Spaces Act 1906 ); school playing fields; or areas of a more private nature, such as London garden squares, or land set aside under a building scheme for the occupants of a particular private development. None of these categories would naturally be regarded as “town or village greens”. The statutory word “locality” should be read with this in mind. Whatever its precise limits, it should connote something more than a place of geographical area—rather, a distinct and identifiable community, such as might reasonably lay claim to a town or village green as of right. In the present case, the “locality” on which the application for judicial review and the supporting affidavit rely in Sudbury itself; I agree that this is the only realistic basis on which to proceed.

In argument, there was some suggestion that a smaller unit could be taken, perhaps the streets adjoining the land. In support of this, I was referred to the conclusions of Gerald Ryan Q.C. In a non-statutory report prepared in 1979 for the Sussex County Council. Mr Ryan cited Pain v. Patrick , as showing that a custom might be claimed for the benefit of the inhabitants of only some of the houses in a particular settlement. In the particular case, he advised the Council that the houses in the immediately surrounding streets could qualify as a “locality” under the Act. With respect to his acknowledged expertise in this field, I find this difficult to accept. Pain v. Patrick was concerned with rights to a ferry, not to a village green. In the present statutory context, I do not think that a piece of land used only by the inhabitants of two or three streets would naturally be regarded as a “town or village green”. The word “locality” in the definition of village green should be interpreted with regard to its context (emphasis supplied).

71. The Claimant in Allaway may hope that it is not necessary to go to the Supreme Court to vindicate this approach.

Treatment of paths

72. Finally, Allaway raises an interesting point on the way walking on a path is to be treated.

73. The case concerns a large (14 acres) agricultural field from which a hay crop is taken every year.

74. Access to the field is lawful – a public footpath runs along its east side, north to south.

75. People walk their dogs round the edge of the field, which has the shape of an oblong. To do so, they use the public footpath and the circular path they have made around the other three sides of the field. The worn track of the circular path is very visible on the ground and in aerial photographs.

76. The principal activity relied upon as a lawful sport and pastime was walking and that activity principally took place on the path.

31 When Carnwath J. 12

77. The Inspector discounted the use of those who just entered and left the field without walking the circuit and those who entered at one point and left at the other. But he counted the use of those who walked a circuit, entering and leaving at the same point.

78. There is authority for saying that you might count use of a public footpath32 towards a village green quaere in what circumstances it would be appropriate to do so; similarly the use of the circular path which might count towards the establishment of new public footpath33. Of course, use of a circular path can establish a public right of way: see Dyfed County Council v Secretary of State for Wales (1989) 59 P &CR 275 (CA).

79. This is a very real issue in village green cases: the claimant here feels that the process has been stood on its head so that his land is being registered on the basis of walking round the edge rather than on the lawful sports and pastimes across the entirety of the land.

PHILIP PETCHEY Francis Taylor Building Temple EC4Y 7BY

ANNEX Committee Discussion in the Surrey case

The Local Member, Tim Hall, registered to speak and made the following points in reference to the application:

• Expressed he knows the area well and the green space gets a lot of public use. • Expressed that an area does not need to have shops to be considered a neighbourhood. It does have sheltered housing, a scout hut and other community facilities. • The area is a cohesive community and has proved the green space is used. Commended the application for village green status to the committee.

Tim Hall then left the room at 12.28 pm.

Key points raised during the discussion:

1. The Commons Registration Officer introduced the report and informed the Committee that a neighbourhood must have some coherence to be acknowledged. The officer's recommendation was to reject the application. 2. The Principal Lawyer explained that the Commons Act 2006 was specific about the criteria which need to be met in order for a piece of land to be granted Village Green status. However, the terms locality and neighbourhood are not defined. Case law has developed which must be considered when seeking to define the terms. The inspector had found that there was little to differentiate the claimed neighbourhood from the surrounding area and little to suggest cohesiveness. The only appeal available to either side following the committee's decision would be Judicial Review.

32 See per Lightman J in Oxfordshire County Council v Oxford City Council and Robinson [2004] Ch 253 (see paragraph 104). 33 See paragraph 103. 13

3. Members felt that an area did not require a particular type of building to be considered a neighbourhood. It could be considered that way if residents wish it to be. It simply required a sense of place. It was pointed out that many recent developments were not built with shops but this should not mean that they could not become a neighbourhood or locality. Members queried whether the inspector's judgment would result in other urban areas being rejected as neighbourhoods, with only rural areas being judged to have met the necessary criteria. Members highlighted that the plans indicated that there was an infant school, recreation ground, allotment and parking area within the claimed neighbourhood. The Chairman countered that different people will have different definitions of neighbourhoods and that the inspector had used case law to come to his conclusion. 4. It was noted that the application had met all the other criteria set by the Commons Act 2006 . 5. It was noted that the land owner would not be able to develop or sell the land if it were to gain village green status. 6. The Committee was informed that there was a recreation ground close to the proposed village green, it was noted that this did not affect the application under consideration. RESOLVED: Members rejected the officer recommendation to REJECT the application. It went on to APPROVE the application to register the land at Leach Grove Wood as a Village Green for the following reason: Notwithstanding the inspector's view, Members formed a different impression. Having considered all the evidence before them they came to the view that the criteria laid down by the Commons Act 2006 had been satisfied by the applicant.

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