County council fails in challenge to village green registration near school

A county council has failed in a High Court challenge to an inspector’s decision to register part of land near a primary school as a village green.

In Lancashire County Council v The Secretary of State for the Environment, Food and Rural Affairs & Anor [2016] EWHC 1238 the council owned, as local education authority, land known as Moorside Fields in Lancaster.

Janine Bebbington applied on 9 February 2010 to the county council, in its capacity as registration authority, to register the land, which is adjacent to a school, as a town or village green.

As landowner, the county council objected to the application in April 2013.

The application was referred to the Planning Inspectorate and an inspector held a public inquiry on various dates in 2014 and 2015. Her decision, dated 22 September 2015, was that most of the land should be registered but that part should not.

Mrs Justice Lang refused permission on paper for the county council to bring judicial review proceedings.

Mr Justice Ouseley subsequently heard the application as a rolled up renewal hearing and substantive challenge.

Counsel for Lancashire advanced five grounds to challenge the inspector’s decision:

1. Registration required at least 20 years' usage as of right by a significant number of the inhabitants of "any locality." This meant an administrative area, and as the administrative area in question had changed during the 20-year period, the relevant period of usage could not be shown; the Inspector had erred in holding that it had been shown.

2. The applicant for registration needed to show that there was a geographical spread of users throughout the locality.

3. The inspector ought to have found that the land was held for educational purposes and that registration as a town or village green would be incompatible with that statutory purpose, and thus was beyond the scope of the Commons Act 2006.

4. The inspector had also imposed too high an evidential standard on the county council, in reality requiring it to prove beyond reasonable doubt that the land was held for educational purposes, and ignored the presumption of regularity.

5. The inspector ought to have concluded on her findings that the county council had exercised control over the land, and so had given permission for its use; her conclusion that there had been no permission was irrational.

Mr Justice Ouseley granted permission on all grounds but dismissed Lancashire County Council’s claim.

Commenting on the case, Francis Taylor Building said: “This decision is important for a number of reasons. It is the first occasion upon which a court has ruled upon the scope of the ‘statutory incompatibility’ doctrine since the formulation of that doctrine by the Supreme Court in Newhaven.  It is also the first time that a court has had to determine whether there is a requirement for a ‘spread’ of users throughout a claimed locality or neighbourhood.”

Douglas Edwards QC and Jeremy Pike from the set appeared for the county council in the High Court, while Annabel Graham Paul acted for the local authority in the drafting of pleadings.

Ned Westaway, also from FTB, meanwhile appeared for the Interested Party, Janine Bebbington, in the High Court. Cain Ormondroyd appeared for Ms Bebbington at the inquiry before the inspector and acted for her in the drafting of pleadings.

Tim Buley of Landmark Chambers appeared for the Secretary of State for the Environment, Food and Rural Affairs.