Judge dismisses challenge to decision of planning inspector on deregistration of village green and exchange of land

The High Court has rejected a challenge to a planning inspector over the meaning of the word ‘neighbourhood’ in relation to village greens.

Local resident Patricia Strack, acting on behalf of Woodcock Village Green Committee, had challenged the Secretary of State for the Environment, Food and Rural Affairs after an inspector found for housebuilder Laing Homes in a case where Hertsmere Borough Council had refused planning consent.

Mr Justice Lane said in Strack (Woodcock Village Green Committee), R (On the Application Of) v Secretary of State for the Environment, Food and Rural Affairs [2023] EWHC 655 (Admin) that the inspector had allowed Laing Homes’ application under section 16 of the Commons Act 2006, for the deregistration and exchange of land at Woodcock Hill village green.

The release land comprises 33,000m² of the existing village green and the replacement land 36,000m² west of the green.

Village green status was designated in 2008 after residents showed the land had been used for 20 years for lawful sports and pastimes by a significant number of inhabitants.

The relevant neighbourhood was specifically defined by reference to particular roads. Residents had maintained the release and retained land and enhanced the site's ecological value.

Objectors to deregistration argued that the proposal would reduce the biodiverse ‘currency’ of the land, and that Laing Homes’ purported enhancements to biodiversity were not robust.

They said any assessment of the proposal should be against a 'fallback' option of the release land being cultivated and maintained by the existing Woodcock Hill Village Green Committee, who had a track record of investing in the land and a robust plan to retain its ecological value.

The inspector hearing Laing Homes’ appeal had found it was clear that residents greatly valued the village green and had invested considerable time and effort in its maintenance and improvement.

He said the release land was the northernmost and lowest-lying part of the village green, and was largely overgrown and difficult to access, The replacement land was a relatively flat grassed area and a belt of woodland.

Although further away from many properties in the defined neighbourhood than the release land, he considered a proposed new access point would make the revised village green more easily accessible from properties to its west.

He said the release land was arguably the least attractive part of the village green for many users, and the replacement land would offer the potential for a wider range of activities and be more accessible for some people not currently resident within the previously defined neighbourhood.

Ms Strack’s first ground was that the inspector erred when considering the interests of the neighbourhood both when he proceeded on the basis that ‘the public’ have a right to use a green and when he considered the interests of those outside the defined neighbourhood.

She said only ‘relevant inhabitants’ had a right to recreation on a green, not the public in general and this error vitiated the decision.

Her second ground was that the inspector did not consider the fallback option.

Lane J said the first ground was based on the submission that the phrase "the interests of the neighbourhood" in section 16(6)(b) of the 2006 Act was confined to the ‘neighbourhood' when first registered.

He said: “I do not accept that…the inspector conflated the rights of ‘the defined neighbourhood’ (i.e. the neighbourhood by reference to which registration was effected) and the position of the public.

“Reading the decision letter as a whole, I find the inspector was plainly aware of the distinction between those with a formal legal right to use the village green and the wider public who either make use of, or would make use of, the replacement land.”

The judge said the inspector had been “simply reflecting the reality that although, strictly, rights attached to the local inhabitants in practice, once land is registered under the Act, no attempt is (or can realistically be) made by owners to distinguish between different groups of users”.

He said Ms Strack had argued that the interests of those living to the west of the replacement land were of less relevance than the interests of the inhabitants of the defined neighbourhood.

The example had been given of a parish using a village green for cricket and rounders; whereas the proposed replacement land is suitable only for football. In such a situation, consideration would need to be given to the preference of those with rights.

“Properly read, however, the statutory scheme contains no such hierarchy,” the judge said.

“On the contrary, section 16(6) is clear. The appropriate national authority is required to have regard to three categories of interests. There is no suggestion that the interests of persons having rights in relation to the release land (sub-paragraph (a)) fall to be treated any differently from ‘the interests of the neighbourhood’ or 'the public interest’.”

The judge concluded: “Properly interpreted, not only does the statutory scheme not impose a hierarchy, it does not empower the decision maker to give inherent weight to a particular type of interest, as compared with another. On the proper interpretation of the statutory scheme, therefore, the decisions letter discloses no legal error.

“Accordingly, it is in my view manifest that the inspector was considering the interests of the ‘neighbourhood' in the correct way…the inspector did not err in adopting this broad approach to what is meant by ‘neighbourhood’ in section 16. In fact, on the correct interpretation of the legislation, he would have erred had he not done so, such as by confining his analysis to the inhabitants of the defined neighbourhood.”

Ground 2 fell because Lane J found the inspector had “express regard to what the claimant refers to as the fallback option”.

He said: “The inspector was, therefore, fully alive to the respective positions of the parties, so far as these concerned activities relating to nature conservation.”

Mark Smulian