The High Court in Forbes v Wokingham Borough Council [2018] EWHC 2530 (Admin) recently had the opportunity to re-consider whether recreation public use of a defined way over land was, by itself, evidence of a wider purpose of lawful sports and pastimes on such land, the latter being a legal criterion to successfully register a new village green. Additionally, the Court considered the procedural obligations on the council when making a decision on any such application.
Legislation
Section 15 of the Commons Act 2000 provides the right to apply for the registration of a new village green 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’ and the use is continuing, or ceased within a year of the application.
Applications are decided by the commons registration authority (i.e. the county council or unitary council of the area). There are no prescribed statutory procedures for such decision making. However, it is accepted practice for the authority to first appoint a barrister to act as inspector in conducting a non-statutory inquiry in accordance with the procedure approved in R (Whitmey) v Commons Commissioners [2005] QB 171.
Following the inquiry, the inspector will prepare a recommendation report which the authority will consider in its decision making. The relevant decision maker, and council procedures for such decisions, must comply with the terms of its constitution (i.e. officer delegations, committee rules etc).
The facts
The application to register a new village green was submitted to the commons registration authority on 8th June 2015. The authority instructed a barrister to act as inspector on a non-statutory inquiry. The inquiry was held in December 2016. The claimant called 19 oral witnesses and relied upon 15 witness statements and 83 questionnaires together with photographic evidence.
The inspector gave her report on 18th September 2017, recommending refusal of the application. The inspector found that the claimant had failed to show that it was more likely than not that there had been lawful sports and pastimes on the land of the required quantity and quality for the relevant 20 year period. The key finding of the inspector concerned the fact that there was a number of worn tracks over the application land and, with the exception of one person, it was considered that the evidence of use was referable to the assertion of a public right of way and not demonstratable of recreational use.
The inspector’s report was referred to the council’s commons registration committee with a recommendation of refusal. Following discussion by the committee in public, a decision was made to refuse the application. The actual decision was not open to the public.
The claimant judicially reviewed the council’s decision to refuse the application. Principally, the challenge was on the grounds that the council made an error of law in its disregard of the user evidence adjudged as asserting a public right of way. There was also an interesting challenge of the fairness of the procedures followed by the council in making its decision in private (and not open to the public).
The decision
The High Court dismissed the judicial review.
On the first key issue of the distinction between claimed usage of public rights of way versus village green rights, the Court noted that it can be difficult in distinguishing the two types of users. Notwithstanding, the Court re-confirmed that the decision on such distinction for any particular case is a question of fact for the decision maker assessed against the following legal test:
“The critical question must be how the matter would have appeared to a reasonable landowner observing the user made of his land, and in particular whether the user of tracks would have appeared to be referable to use as a public footpath, user for recreational activities or both… In summary it is necessary to look at the user as a whole and decide adopting a common-sense approach to what (if any claim) it is referable and whether it is sufficiently substantial and long standing to give rise to such right or rights.
If the position is ambiguous, the inference should generally be drawn of exercise of the less onerous right (the public right of way) rather than the more onerous (the right to use as a green)."
The Court concluded that the council, via the inspector’s report, was entitled, on the factual evidence of users in the case, to adjudge their blackberry picking and cycling as incidental to a punitive public right of way and not evidence of use for recreational activities giving rise to a village green.
On the second key issue of the council’s procedures in determining the application in private, the Court noted that the legal position is that there is no statutory procedure for the determination for a village green application. As such the council was entitled to adopt any procedure which it thinks appropriate, subject only to any relevant requirements of legality and fairness.
The Court concluded that the procedure adopted and published by the council, as part of its constitution, fairly and reasonably gives every proper opportunity for public input into a decision. It was noted that a meeting of the committee held in public to discuss the application and which is then followed by a decision made in private is clearly set out. The latter is not a meeting of the council, and therefore need not be in public, in accordance with section 100A(1) of the Local Government Act 1972.
Lesson: When preparing evidence for applications for claimed village green rights or public rights of way, it is important to assess and address such evidence in consideration of the above mentioned legal test – specifically, addressing how the public activities would appear to a reasonable landowner. For example, if the application is for a village green then be clear in the evidence how the public activities are distinguishable to the pure walking (especially if there are defined tracks on the ground).
Secondly, be clear and understand the authority’s procedures in dealing with village green applications so that you can maximise your opportunity to present your case before the decision.
