The High Court has recently considered a challenge by Lancashire County Council (‘LCC’) to the decision of a planning inspector to register land adjacent to a primary school as a town or village green (‘green’).

Unless the right has been excluded, anyone can apply to register land as a green under Section 15 of the Commons Act 2006 where “a significant number of 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 twenty years”.

Court’s decision

The court dismissed LCC’s application for judicial review of the planning inspector’s decision. The following points emerge:

Change in locality

  • An electoral ward of LCC qualified as a locality even though it had not existed in the same administrative form and had changed within the relevant twenty year period.

A locality must be a distinct and identifiable community. Its task is to define the area in relation to which significant numbers of inhabitants can be judged and to whom the rights if registered attached.  The use of the land by the inhabitants does have to have lasted for twenty years but the locality does not have to have existed for this period.

Spread or scatter throughout a locality

  • LCC argued that the application for registration as a green needed to show a geographical spread of users throughout the locality. The court held that there is no such requirement.  

The court acknowledged that without a spread of users throughout a locality there would be an arbitrary relationship between the area where the actual users of the green came from and the population of an area legally defined as a locality.  This was an inevitable consequence of the need to define an area. Even accepting that the spread need not be and indeed could not be expected to be even throughout the locality, an uneven spread or scatter of users, as opposed to their complete absence, would not avoid the mismatch and would only create the issue of deciding what parts of the locality the scatter covered or left uncovered.

The number of users has to be significant in relation to the locality but the absence of a geographical spread will not prevent registration of land as a green.

Give and take

  • LCC had not done enough to convey to members of the public that their use was contentious or that LCC controlled the land and they had therefore given permission to use the land. LCC argued that they had and the use was therefore not as of right. The court disagreed.

Teachers at the school had challenged members of the public, asked people to keep to the perimeter or to put dogs on their leads. Sometimes lessons were abandoned and moved back into the school buildings. There was, however, no evidence that the school had a formal policy of challenging members of the public, excluding users on a systematic basis, or recording incidents with members of the public. No notable signage had been produced.

LCC did not made it clear enough to members of the public that their use of the land was either contentious or with permission. The general impression given was rather one of peaceful co-existence, of give and take.

Statutory incompatibility

  • It may be possible to register land as a green notwithstanding that the land is held for statutory purposes. Statutory incompatibility is not the same thing.

As a general rule section 15 of the Commons Act 2006 does not apply to land which has been acquired by a statutory undertaker, in this case LCC, and which is held for defined statutory purposes, in this case educational purposes, which are inconsistent with the registration of the land as a green.

Was the land held by LCC for educational purposes? The evidence was too weak for the planning inspector to reach the conclusion that the land had been acquired for educational purposes.

Where the evidence is unclear, a lawful statutory use can show the basis upon which land is held by a local authority. The court did not find this helpful in this case. Inferences of the purpose for which the land was held by the LCC could not be made from longstanding practice that was lawful under statute as evidence of regular educational use was limited (by the use actually made, its intermittency and the area used for it).

Using the presumption of regularity (where it can be assumed that a local authority acted properly and lawfully in pursuance of a statutory power in the absence of contrary evidence) might have warranted inferences of the purpose for acquiring the land.  No other statutory purpose for the acquisition was put forward and there was no suggestion that the land was acquired for public open space. The conveyances of the land did not state the purpose for which LCC had acquired the land but endorsements on the documents made reference to education (although the authority for those endorsements was not known). Whilst the court would have inferred that the purpose resolved upon would have been the one endorsed on the conveyances, the planning inspector was entitled to reach a different conclusion and that conclusion was not irrational.

Even if the land had been purchased for educational purposes would registration as a green be incompatible with those statutory purposes? Not necessarily.

The statutory ownership of the land should bring specific statutory duties or functions in relation to that specific land which would be prevented or hindered by its use for public recreation after registration as a green. There is a difference between a specific statutory function which requires the use of specific identifiable land, and a general statutory function which can be performed, more or less conveniently without the land in question.  What is required is a close relationship between the performance of the function and the use of the particular land before conflict with public recreational use can give rise to statutory incompatibility.

There was no clear incompatibility between LCC’s statutory functions and registration of the land as a green. The land, if registered as a green, could still be used for educational purposes albeit a limited range of educational purposes such as recreation and outdoor classes rather than new school buildings or extra school classrooms. LCC’s general statutory educational functions could still be undertaken.

What does it all mean?

The registration of land as a green can deprive land of much of its value. It can restrict or prevent development and use of the land. Registration is therefore a serious issue for developers and an important concern for landowners.

Landowners must make it clear either that use of the land by members of the public is contentious or permissive. If you are controlling use of the land and thereby giving permission, rather than challenging its use, still make it clear. Put up notable signs; have a policy; be consistent; be systematic.

It is critical that the locality being relied upon for a green application is identified and the inhabitants’ use of the land for recreational purposes has lasted for a twenty year period. There is however no requirement for that locality to have existed throughout this period.  

The number of users has to be significant in relation to the locality but their geographical spread is irrelevant. This is the first time that a court has had to determine whether there is a requirement for a geographical spread of users throughout a locality and provides judicial authority on this concept.

Public bodies with general functions which do not have to be performed specifically on the land that is subject to the green application will find the statutory incompatibility defence to registration hard to argue successfully.    

Lancashire County Council v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 1238 (Admin)