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School’s Out for Village Greens

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11/07/2016

In the first decision of its kind since the landmark Newhaven [1] case, the High Court has ruled that land used for educational purposes under a statutory provision can nonetheless be registered as a Town or Village Green (TVG) .  TVG specialists Andrew Beck and Erin Keating review the recent case of Lancashire County Council v The Secretary of State for the Environment, Food and Rural Affairs & Anor [2].

Background

In February 2010 an application was made to register five parcels of land adjacent to Moorside Primary School in Lancaster as a TVG. Lancashire County Council (“LCC”) was both the landowner and objector in the proceedings and so the application was referred to the Planning Inspectorate. A public inquiry took place on various dates in 2014 and 2015 and the Inspector’s decision, dated 22 September 2015, held that four of the five parcels of land should be registered as a TVG.

Judicial Review

LCC sought and obtained permission to judicially review the Inspector’s decision on the following five grounds [3]:

  1. The requisite period of usage could not be shown as the administrative area which was being relied upon as the “locality” had changed during the 20 year period. (The clock on the period of usage had been re-set when the relevant ward boundary had changed in 2001).
  2. The applicant had not shown that there was a geographical spread of users throughout the locality.
  3. The land was held for educational purposes and registration as a TVG would be incompatible with that statutory purpose.
  4. The extent of evidence required by the Inspector to prove that LCC held the land for educational purposes was disproportionate.
  5. LCC had exercised control over the land and therefore had given permission for its use.

The judicial review application, however, was dismissed on all grounds. We explain below.

Decision – Locality

The Commons Act 2006 (the “Act”) provides that an application may be made for the registration of land as a TVG where 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. The High Court concluded that there was nothing within the Act which required the locality to have existed in the same administrative form for the period of 20 years relied upon. The body of inhabitants remained the same regardless of the fact that the original ward had been abolished and a new ward created.

Spread

The High Court acknowledged that, whilst the absence of a spread of inhabitants within a locality or neighbourhood could produce a mismatch between the area from where the actual users came and the area which would acquire rights to the land after TVG registration, the word “spread” was not used within the Act as a defining requirement for a TVG.

Extent of evidence

The Inspector had concluded that she had been presented with insufficient evidence to show that the land had been acquired for educational purposes. LCC submitted that the Inspector had applied too high-a standard of proof and that sufficient evidence had been provided. Whilst Mr Justice Ouseley acknowledged that he may not have reached the same conclusion as the Inspector (as there was no evidence or assertion that the land had not been acquired for this purpose), the High Court could not conclude that the decision reached by the Inspector was either irrational or an error in law.

A key point to note is that LCC applied to the court to submit evidence which had not been put before the Inspector. The evidence in question, however, was deemed not admissible as it could have been obtained prior to the public inquiry, had reasonable diligence been applied. This is a stark warning to all parties, if ever one was needed, to ensure that a full search for evidence is made at the outset.

Statutory Incompatibility

Having acknowledged that there was no error in law made by the Inspector in her decision regarding the purpose for which the land was held, the High Court was not required to deal with the issue of statutory incompatibility. In any event, the court concluded that LCC would still be able to use the land for some educational purposes, despite its registration as a TVG.

Permission

The Inspector had concluded that LCC had not, to a reasonable onlooker, taken sufficient action to demonstrate that the use of the land by the general public was with permission. Instead she had found that there had appeared to exist a peaceful coexistence between members of the public and teachers, who occasionally would ask for people to put their dogs on leads or to walk round the perimeter of the land.  The High Court found that the issue of implied permission for use had been fully considered and that the Inspector’s decision was rational.

WM Comment

This is the first occasion on which the courts have ruled on the doctrine of statutory incompatibility since the Newhaven decision. In Newhaven the Supreme Court was careful to note that the ownership of land by a public body holding statutory powers to develop was not necessarily sufficient to defeat a TVG application.

In the present case the High Court held that the duties imposed on LCC were only general duties that were imposed on all local authorities (and as such were insufficient, in themselves, to defeat a TVG application). The court also found that it is possible for a TVG to co-exist hand-in-hand with statutory purposes.  This case therefore provides a clear message to public bodies that it is not enough to rely on statutory powers alone.

The decision on whether or not a geographical spread of users within a locality or neighbourhood is required is the first of its kind. This debate has been referred to previously in a number of cases but, following this ruling, objectors may now need to think again when attempting to defeat the neighbourhood/locality test.

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[1] See our earlier briefing on this important case.
[2] [2016] EWHC 1238 (Admin)
[3] For more detailed information on the underlying legal requirements for TVG registration, see our Town and Village Greens: Continuing development article.

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