Council defeats High Court challenge to registration of 14 acres as village green

A county council has successfully defended in the High Court its decision to register 14 acres as a town and village green (TVG).

In Allaway & Anor, R (on the application of) v Oxfordshire County Council & Ors [2016] EWHC 2677 the claimants owned the application site in which Gladman Developments had an interest.

On 18 April 2013 the interested party, Robert Stewart, made an application to Oxfordshire, as the registration authority, to register the site at Humpty Hill, Faringdon, as a TVG. There were objections from the claimants and Gladman Developments.

Oxfordshire instructed a barrister, Dr Charles Mynors, to hold a public inquiry, prepare a report and make a recommendation.

In his report of September 2015 Dr Mynors recommended that the land be registered as a TVG. Following further representations from the objectors, he declined to alter his recommendation.

At a meeting held on 30 November 2015 the Planning and Regulation Committee at Oxfordshire resolved to approve the inspector's recommendation. The land has not been registered pending the outcome of the judicial review.

The grounds of challenge were that:

1. The inspector applied an inappropriate discount for use of the perimeter paths;
2. The inspector failed to properly consider and apply the qualifying requirement that the use needed to be by a significant number of those in the locality.

The defendant council submitted that:

1. The inspector assessed the evidence of user on how it would have appeared to a reasonable landowner;
2. The inspector was entitled, on the evidence, to conclude that the requirement for a significant number of inhabitants to be from the locality was met;
3. Even if there is some error of law on the part of the inspector on ground 2 the outcome would not have been substantially different. The court was invited to exercise its power under section 31(3C) Senior Courts Act 1981.

Following a rolled-up hearing, Mrs Justice Patterson dismissed the claim.

On the first ground of challenge, the High Court judge said: “It is clear…. that on a fair reading of the first report and the supplementary report that the inspector was well aware that if the walking use was such as to indicate an emergent right of way or use of an actual right of way that he had to discount it and he did so. Other use though was for informal recreation. That was a matter for his judgment having heard all of the evidence and observed activities on the land in question.”

Mrs Justice Patterson noted that it was clear that the inspector did not accept the submission by the objectors that use of the paths should be excluded altogether.

“That submission has been repeated before me but put elegantly by Mr Edwards QC. I reject it,” she said. “I have set out already the importance of reading the reports as a whole and fairly; when that is done it is clear that the inspector discounted those either using the public footpath or using the paths as part of a route from one point outside the land to another. In respect of those users the inspector is clear in his supplementary report that he discounted that use.

“For the rest he was satisfied that it was informal recreation, whether walking round one or other of the paths, whether the circular path or the outer path, whilst their dogs went over the land. Others who walked and indulged in other forms of recreation elsewhere on the land were using the land for informal recreational use attributable to a village green right.”

The judge said this was “a classic example of recreation and low-level agriculture existing happily side by side”, and noted the inspector’s comment that: "There is no doubt that the owners knew, both by direct observation and from the reports of those working with and for them, that the land was being used by people who were in effect trespassers."

On the second ground of challenge, Mrs Justice Patterson rejected the claimants’ submission that there had been a ‘mismatch’.

“What the statutory wording is requiring, in my judgment, is that there are a significant number of the inhabitants of any locality or any neighbourhood, if that is the basis of the application, who have indulged as of right in lawful sports and pastimes on the land,” she said.

“I can see no basis, therefore, in the statutory wording for there to be a spread of users across the locality.”

The judge noted that the inspector had dealt specifically with the contention that the number using the site was not a significant number of the inhabitants of Faringdon in his supplementary report.

She added: “As a matter of impression, Dr Mynors concluded that it was a well used piece of land. He set out…. his experience in other towns and village green inquiries and said that this was one of the more convincing that he had come across and he rejected…. that the land had to be equally used by people from all parts of the town or village in question. In coming to that conclusion it seems to me he employed the right test.”

Mrs Justice Patterson noted that, having dismissed both grounds of challenge, there was no need to consider the application of section 31(3C) of the Senior Courts Act 1981.

She added that in the circumstances she would have granted permission but dismissed the claim for judicial review.