When can local authority land acquired or appropriated for a statutory purpose be incompatible so as to defeat the registration of such land as a town or village green?

The case concerned an application to register as a village green, fields owned by the county council and situated adjacent to a primary school. The application was made under section 15 of the Commons Act 2006 which provides that an application may be made for the registration of land as a town or village green where: “(2)…(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right lawful sports and pastimes on the land for a period of at least 20 years; (b) they continue to do so at the time of the application…”.

The County Council asserted that the land was held by it as local education authority. As owner of the land, and the county council being a ‘pilot’ registration authority, the application to register the fields as village green was referred to the planning inspectorate pursuant to the Commons Registration (England) Regulations 2008. The inspector found, following a public inquiry, in favour of the applicant in that the land should be registered as a village green. The County Council judicially reviewed the decision.

The issues raised by the County Council, and the decision of the Court in dismissing the judicial review, were as follows:

1. The first issue was that the meaning of ‘locality’. A locality is a legally defined area such as an electoral ward, and the applicant at the inquiry had relied upon the Scotforth West Ward. The applicant could have relied upon a neighbourhood which is of less rigidity and can form part of a locality or a number of localities but that did not form the basis of the final form of the application as advanced at the public inquiry and therefore applied by the inspector in her decision. The argument advanced by the County Council was that Scotforth West Ward did not exist for the full 20 year period (the wards having been redrawn in 2001). Therefore use of the fields by the inhabitants of such ward could not have occurred for the required 20 year period. The Court did not agree with the technical legal interpretation asserted by the County Council. The Judge stated that a different locality would arise only if the identifiable community within the claimed locality for the application is significantly different. If radical changes produce significantly different communities then there maybe on the facts a break in the 20 year period. In any event, such radically boundary changes could be addressed by a village green applicant by use of inhabitants in reference to a neighbourhood as opposed to a locality as had occurred in this case.
2. The second issue raised by the County Council was whether there needed to be a spread of users within the locality. The Judge strongly rejected this argument and stated that 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 and their spread is irrelevant. He further stated: “The relationship between residences of the recreational users of a green to the population of an area legally defined without reference to the spread of those residences will inevitably be arbitrary… The introduction of the concept of the “neighbourhood” recognised that the area of a locality might be too large for the number of users to be significant in relation to the arbitrarily but legally defined area in which the green fell but which had to be chosen as the area against which the significance of the user numbers had to be assessed. Users of a green might come from more than one “locality” depending on the location of the green in relation to population, and be significant only in relation to that purposively defined “neighbourhood” area.”
3. The third issue raised by the County Council was whether the inspector was wrong in finding that it had not proved the land was held for education purposes. The Judge found that the County Council had failed to submit all available evidence, which it subsequently wished to rely in submit of its judicial review, to the inspector and as such the inspector was entitled to rely upon the evidence before her in concluding her findings of such fact. The County Council argued to the Court that the presumption of regularity applied in that it should be assume that a local authority acted properly and lawfully in pursuance of a statutory power in the absence of contrary evidence. The Judge noted that the presumption of regularity did not appear to have been argued before the inspector. It was noted by the Judge that appropriation cannot be inferred simply from how the authority uses or manages the land, even though there may be no need for a formal record or resolution of the appropriation. The Judge concluded that in his opinion the land was, on the balance of probabilities, held by the County Council as local education authority. However, the Judge then went on to find that, as it was not an error of law, the inspector had not acted irrationally on her findings of fact that the County Council had not proved the land was held for education purposes.    
4. The fourth issue raised by the County Council was whether the fields (if held for education purposes) were incompatible to the registration of the fields as a village green. Ultimately, this issue was irrelevant given the Judges findings on the third issue but nonetheless provided a decision in obiter. The Judge found that even if the fields were held for education purposes the registration of the fields as a village green was not incompatible with such purposes as the County Council was not prevented or restricted in meeting its duty as education authority. In short, the County Council could use alternative land for new schools and facilities. The Judge summarised the position as: “There is a spectrum of statutory bodies and statutory duties in relation to land which could be impeded by public rights of access for recreation, and the duty to avoid damaging its surface on pain of criminal penalty. What is envisaged for a specific Act to be in conflict with the general Commons Act, and to override it by necessary implication, is that the statutory ownership of the land should bring specific statutory duties or functions in relation to that specific land which are prevented or hindered by its use for public recreation after registration. It is 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. That does not essentially require evidence of the statutory body’s intentions because it should be clear from the statutory function taken with the nature and location of the land in question.”
5. The final issue raised by the County Council was whether actions by teachers to ask members of the public to leave the fields when they were conducting classes on the field amounted to a permission or licence as to the public use of the fields. The Court reiterated the existing legal position that: “a permission from an  express prohibition in byelaws or other acts, and that permission does not have to be expressly communicated to be effective, and that user by a publicly based licence did not have to be explicitly communicated to the users for it to be effective as a permission.” The inspector had concluded, as a question of fact, that such requests from the teachers were no more than part of a give and take use of the field. The Judge concluded such finding was not irrational. For applicants for the registration of town and village greens this case highlights that, whilst it might be easier to define a locality for your application, it is probably always better to rely upon a neighbourhood. For local authorities this case highlights that the ‘general’ statutory purpose for which land is held is unlikely to defeat applications for the registration of such land as a town or village green. Good land management and protection is essential.