Lancashire CC v Secretary of State for the Environment, Food and Rural Affairs  EWHC 1238 (Admin) (Admin Ct): B applied to LCC as registration authority to register land adjacent to a primary school as a town or village green. LCC, as landowner, objected to the application. Following a public inquiry, the inspector held that most of the land should be registered but that part should not. B applied for judicial review on five grounds, including: the meaning of "locality"; the spread of users throughout the "locality"; and the conflict between registration and the statutory purpose for which LCC held the land.
The court held, granting leave for judicial review but dismissing the challenge, that (1) there was nothing in the Act which required the "locality" to have existed for 20 years; the fact that the use by its inhabitants had to have lasted for that period did not mean that its legal definition had to have existed throughout that period. It fulfilled its task by defining the area in relation to which significant numbers could be judged and to whom the rights, if registered, attached. The current Ward was the continuation of a sufficient part of the former Ward for continuity to remain between the two, by whatever means the change or interruption was brought about. The abolition of the one and its replacement was no more significant than would have been an equivalent change wrought by boundary changes. (2) The statutory requirement for a "significant number of the inhabitants of the locality" to use the land did not mean that there had to be a spread throughout the locality. The need for a legally defined area to constitute the "locality" meant that the inhabitants of the locality could suffice if significant in number in the locality; their spread was irrelevant. The inspector's conclusion that that it had not been proved that the lands had been acquired for educational purposes was not irrational nor had she erred in law. (3) Even if the land were held for educational purposes, there was not any necessary incompatibility between that and its use for recreational purpose. For a specific Act to be in conflict with the general Commons Act, and to override it by necessary implication, the statutory ownership of the land had to bring specific statutory duties or functions in relation to that specific land which were prevented or hindered by its use for public recreation after registration. It was not enough that the duty could be performed on the land in question but could also be performed on other land, even if less conveniently. LCC's general statutory educational functions could still be undertaken even if no educational functions could be undertaken on this specific land compatibly with public recreational use. A closer relationship was required between the performance of the function and the use of the particular land before conflict with public recreational use could give rise to statutory incompatibility. That was going to be a hard test to satisfy for public bodies with general functions which did not specifically or in reality have to be performed on the land in question. In the Newhaven case, the importance of the beach to possible future needs of the harbour was obvious. This highlighted the difference between a specific statutory function which required the use of specific identifiable land, and a general statutory function which could be performed, more or less conveniently without the land in question. (27 May 2016)