Factual and Procedural Background
This claim for judicial review challenges the decision of the Development and Regulation Committee of Essex County Council made on February 22, 2013, refusing to register a specific area of land in Walton on the Naze as a Town or Village Green under section 15(2)(a) of the Commons Act 2006. The County Council is the registration authority for this purpose.
The Claimant, an individual residing near the land and having used it recreationally, was granted permission to bring this claim by a Deputy High Court Judge in a reserved judgment on March 7, 2014.
The application for registration was originally made by a second interested party in April 2011, while the landowner, a private company, objected. The County Council appointed an Inspector to hold a non-statutory public inquiry in November 2012, who subsequently recommended rejecting the application. The Committee accepted the Inspector’s recommendation, which the Claimant now impugns.
The Inspector found that the land had been maintained and managed by the District Council as a public open space for most of the relevant 20-year period, except for a period in 1993 when engineering works took place. He distinguished between two parts of the land, finding that only the flatter triangular area had been used sufficiently for lawful sports and pastimes.
The Inspector concluded that (i) the public’s use was "by right" rather than "as of right" as required by the Act, because the District Council had managed the land under statutory powers, and (ii) the use had been interrupted during the 1993 works, thus failing the continuity requirement.
Legal Issues Presented
- Whether the public’s use of the land was "as of right" as required for registration under section 15(2)(a) of the Commons Act 2006, or whether it was "by right" due to permission or statutory authority.
- Whether the registration authority had a duty to investigate the basis on which the District Council managed and maintained the land before making its decision.
- Whether there was a continuous, uninterrupted use of the land for lawful sports and pastimes during the 20-year period, or if the 1993 engineering works constituted an interruption sufficient to defeat registration.
Arguments of the Parties
Appellant's Arguments
- The Inspector and Committee erred in law by concluding the use was "by right" rather than "as of right".
- The Inspector wrongly extended the principle that use is "by right" when a local authority owns land to a case where the local authority merely manages land owned by a private entity.
- The District Council lacked the legal powers to grant permission or control the land, and any permission was not communicated to the public.
- The registration authority failed in its duty by not investigating the legal basis of the District Council’s management and maintenance of the land.
- The 1993 engineering works did not constitute an interruption because there was no physical ouster, and the use need not be absolutely continuous.
- The interruption period should be disregarded under section 15(6) of the Commons Act 2006 because the works were carried out under statutory powers.
Respondent's Arguments
- The use was "by right" because the District Council managed and maintained the land under statutory powers (notably the Open Spaces Act 1906 and Public Health Act 1875), which authorized the public’s lawful use.
- Permission to use the land was effectively communicated by the District Council’s conduct in managing and maintaining the land as a public open space.
- The registration authority had no investigative duty beyond considering the evidence presented by the parties and the public inquiry held.
- The 1993 works constituted a substantial interruption of use, sufficient to defeat the continuity requirement for registration.
- Section 15(6) applies only where access is prohibited by statutory order, not merely where works prevent use; thus the interruption was not to be disregarded.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Barkas) v North Yorkshire County Council [2014] UKSC 31 |
Clarification of "as of right" vs "by right" use; public law constraints on local authorities’ ability to withdraw permission. |
Supported finding that use of land managed by a local authority under statutory powers is "by right". |
| R (Newhaven Port & Properties Ltd) v East Sussex County Council [2013] EWCA Civ 276 |
Distinction between use "by right" and "precario" (permission); requirement of communication of permission. |
Considered in relation to whether permission was communicated to public; court found communication by conduct sufficient here. |
| R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11 |
Compatibility of recreational use with other uses; interpretation of "as of right". |
Used to contrast interruption by works with compatible uses such as agriculture. |
| R (Beresford) v Sunderland City Council [2003] UKHL 60 |
Implied licence through conduct; public use "by right" where land maintained for public recreation. |
Applied analogy to District Council’s maintenance indicating permission communicated by conduct. |
| R v Oxfordshire County Council ex p Sunningwell CC [2000] 1 AC 335 |
Prescription of public rights depends on acquiescence by person able to resist them. |
Supported reasoning that permission by landowner or authorized local authority precludes use "as of right". |
| Oxfordshire County Council v Oxford City Council [2006] UKHL 25 |
No investigative duty on registration authority beyond evidence presented; fairness in procedure. |
Supported conclusion that County Council had no duty to investigate further beyond inquiry evidence. |
| Betterment Properties (Weymouth) Ltd v Dorset County Council [2012] EWCA Civ 250 |
Physical ouster or incompatible use may interrupt continuous use for village green registration. |
Distinguished; physical exclusion not necessary if works prevent lawful sports and pastimes. |
| Hazell v Hammersmith LBC [1992] 1 AC 1 |
Interpretation of local authority powers under section 111 Local Government Act 1972. |
Rejected submission that section 111 alone authorized District Council’s actions; powers must be vested by other enactments. |
| Calder Gravel Ltd v Kirklees MBC (1989) 60 P&CR 322 |
Presumption of regularity in public authorities’ lawful exercise of powers. |
Applied presumption that District Council acted lawfully under statutory powers in managing land. |
Court's Reasoning and Analysis
The court analysed whether the public’s use of the land was "as of right" or "by right" under section 15(2)(a) of the Commons Act 2006. It emphasized that "as of right" use requires use without permission or legal right, while "by right" involves permission, express or implied, including that arising from statutory powers.
The Inspector found, and the court agreed, that the District Council managed and maintained the land under the Open Spaces Act 1906 and/or the Public Health Act 1875, statutory provisions allowing local authorities to maintain open spaces for public recreation. Although the District Council did not hold legal estate in the land, it had lawful authority to manage it, and the landowner had authorized this arrangement.
Because the District Council maintained the land as a public open space, permission to use the land was effectively communicated to the public by the Council’s conduct, such as mowing grass and providing bins, making the use "by right" rather than "as of right". The court rejected the appellant’s argument that permission needed to be communicated directly by the landowner to the public or that the Council lacked power to grant such permission.
The court also considered whether the registration authority had a duty to investigate the legal basis of the District Council’s management. It held that the authority was entitled to rely on the evidence presented and the public inquiry, with no obligation to seek further information unless failure to do so was unreasonable. As the parties had already attempted to obtain information from the District Council, and no evidence suggested further inquiry would yield material facts, no investigative duty was breached.
Regarding the 1993 engineering works, the court found that the works caused a substantial interruption to the public’s use of the land for lawful sports and pastimes, sufficient to break the continuity required for registration. It rejected the argument that physical exclusion was necessary for interruption, holding that if the land could not be used for recreational purposes due to works, use was interrupted even if physical access was possible for inspection.
The court further held that the interruption period was not to be disregarded under section 15(6) of the Act, as the relevant statutory provision applies only when access is prohibited by an enactment, not merely when works prevent use. The National Rivers Authority had statutory powers for the works, but no evidence showed a statutory prohibition on public access during that time.
Holding and Implications
The court DISMISSED the Claimant’s application for judicial review.
The court upheld the decision of the Development and Regulation Committee of Essex County Council refusing to register the land as a Town or Village Green. It found that the public's use was "by right" due to lawful permission through the District Council's statutory management, and that there was a substantial interruption in use during the 1993 engineering works.
The decision directly affects the parties by confirming the refusal of registration, but does not establish new precedent beyond applying existing legal principles to the facts of this case.