County nets permission for appeal in village green and school land case

Lancashire County Council has secured permission to appeal a High Court ruling that backed an inspector’s decision to register part of land near a primary school as a village green.

According to leading barristers’ chambers Francis Taylor Building, Lord Justice Lindblom granted permission on all five grounds raised before Mr Justice Ouseley in Lancashire County Council v The Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 1238 (Admin).

The site owned by the council as local education authority is 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. A planning inspector subsequently concluded that most of the land should be registered but part should not.

Counsel for Lancashire had 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 five grounds, but dismissed the county council’s claim.

FTB said: “The Court of Appeal is likely to give important guidance on the scope and application of the doctrine of statutory incompatibility, following the 2015 decision of the Supreme Court in R (Newhaven Port and Properties Ltd) v Sussex CC.

“The potential incompatibility in this case is argued by the county council to arise between village green registration and statutory educational use, and concerns land used in part as playing fields.”

The case will likely be heard in October 2017, conjoined with the appeal in R (NHS Property Services Ltd) v Surrey CC [2016] EWHC 1715 (Admin).

Douglas Edwards QC and Jeremy Pike of FTB are acting for the appellant council. Ned Westaway, also of FTB, is acting for the second respondent.