Factual and Procedural Background
This appeal concerns a judicial review claim brought by the Appellant against the decision of an inspector appointed by the Secretary of State for Environment, Food and Rural Affairs ("the Secretary of State") who granted an application under section 16 of the Commons Act 2006 ("the 2006 Act") by Laing Homes Limited ("Laing Homes Ltd.") to deregister part of Woodcock Hill Village Green and exchange land. The village green had been registered in 2008 following an application by the Appellant. The deregistration application was made in November 2020 and related to a 33,000 square metre area of the green ("release land"), with proposed replacement land of 36,000 square metres. An inquiry was held in early 2022, followed by the inspector's decision letter dated 24 May 2022, which granted the application. The Appellant's claim for judicial review was issued in August 2022 and dismissed by Lane J. on 24 March 2023, leading to this appeal. The main dispute involves the interpretation and application of statutory provisions regarding the interests of the neighbourhood and the public, and the consideration of a "fallback" position concerning maintenance of the land.
Legal Issues Presented
- Did the inspector err in law by conflating the rights of qualifying inhabitants of the defined neighbourhood with the interests of other local inhabitants who have no such rights?
- Did the inspector misinterpret and misapply the Government's Common Land Consents Policy?
- Did the inspector err in his consideration of the "fallback" position related to maintenance and ecological enhancement of the release land?
Arguments of the Parties
Appellant's Arguments
- The inspector wrongly conflated the legal rights of qualifying inhabitants with the interests of other local inhabitants who are effectively trespassers without any rights to use the village green.
- Town and village green rights are proprietary in nature, vested only in residents of the defined locality or neighbourhood, and should not be treated as public rights enjoyed by the general public.
- The Common Land Consents Policy requires that residents of the defined neighbourhood be left "no worse off" by deregistration, a high threshold not met here.
- The inspector failed to properly consider the fallback position that the Appellant and others could lawfully maintain and enhance the release land without the landowner's permission, which is inherent to their rights.
- The balancing exercise undertaken by the inspector was unlawful and irrational, giving improper weight to the interests of non-rights holders.
Respondent and Interested Party's Arguments
- The inspector correctly understood and applied the statutory provisions and policy, distinguishing between legal rights and other interests without conflation.
- The Common Land Consents Policy requires an overall balanced assessment of all interests, not a strict "no worse off" test for each category of interest.
- The inspector properly considered the fallback position as a material consideration and exercised lawful evaluative judgment on its weight.
- The balancing of interests, including those of non-rights holders, is permitted by section 16(6) of the 2006 Act and was conducted lawfully.
- Any alleged error was immaterial and would not have affected the outcome of the decision.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Barkas v North Yorkshire County Council [2014] UKSC 31 |
Clarification that rights to use village greens vest in inhabitants of the relevant locality/neighbourhood, not the public at large; recognition of practical difficulties distinguishing rights holders from others. |
Used to explain the nature of rights over village greens and the distinction between qualifying inhabitants and other users; supported interpretation of "interests of the neighbourhood". |
| Fitch v Rawling (1795) 2 H. Bl. 393 |
Established principle that rights of recreation are confined to individuals of a particular description (local inhabitants), with outsiders treated as trespassers. |
Supported Appellant's argument on proprietary nature of rights and limitation to defined neighbourhood residents. |
| Sainsbury's Supermarkets Ltd. v Wolverhampton City Council [2010] UKSC 20 |
Property rights conferred by common law should be given appropriate weight in statutory interpretation. |
Referenced to support the proprietary nature of town and village green rights. |
| Oxfordshire County Council v Oxfordshire City Council [2006] UKHL 25 |
Registration vests legal rights to use the green for lawful sports and pastimes in inhabitants of the relevant locality/neighbourhood. |
Confirmed the legal basis of rights attached to registration and their scope. |
| R. (on the application of Day) v Shropshire County Council [2023] AC 955 |
Reference to exercise of public rights in town and village greens. |
Used to illustrate terminology describing rights as "public" in a broad sense. |
| TW Logistics Ltd. v Essex County Council [2021] AC 1050 |
Confirmed that registration grants the public the right to use land for lawful sports and pastimes subject to reasonableness. |
Supported the characterization of rights as public rights enjoyed by qualifying inhabitants. |
| R. (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] 2 AC 70 |
Recognition of the assertion of public rights over town and village greens. |
Supported references to rights as public rights vested in qualifying inhabitants. |
| Laing Homes Ltd. v Buckinghamshire County Council [2004] 1 P. & C.R. 36 |
Confirmed that registration is a claim that a public right exists. |
Referenced in support of the nature of rights conferred by registration. |
| St. Modwen Developments Ltd. v Secretary of State for Communities and Local Government [2018] PTSR 746 |
Principles governing judicial review of planning inspectors' decisions, including fair reading of decision letters. |
Applied to assess the inspector's decision letter in the context of town and village greens. |
| R. (on the application of Tadworth and Walton Residents' Association) v Secretary of State for Environment, Food and Rural Affairs [2015] EWHC 972 (Admin) |
Application of judicial review principles to inspectors' decision letters in town and village green cases. |
Used to support approach to reviewing inspector's decision letter. |
| Mounsey v Ismay (1863) 1 H. & C. 728 |
Recognition that rights to use land for lawful sports and pastimes may include rights to maintain land. |
Referenced in argument about lawful maintenance as part of rights. |
| Lancashire v Hunt (1894) 10 T.L.R. 310 |
Similar to Mounsey v Ismay regarding lawful maintenance rights. |
Referenced in argument about lawful maintenance as part of rights. |
| White and others v. Taylor and another (No. 2) [1969] 1 Ch. 160 |
Accepted that maintenance of land can be a lawful pastime related to rights over the land. |
Referenced in argument about lawful maintenance as part of rights. |
| R. (on the application of Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 |
Doctrine of "fallback" as a material consideration in planning decisions. |
Discussed to distinguish planning fallback from fallback in village green maintenance context. |
| Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13 |
Principles of interpreting planning policies and similar documents. |
Applied to interpret the Common Land Consents Policy. |
| Monkhill v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 74 |
Guidance on interpreting planning policies with realism and common sense. |
Applied to interpret the Common Land Consents Policy. |
| A v Secretary of State for the Home Department [2021] UKSC 3 |
Emphasis on policy aiding consistent and predictable decision-making. |
Applied to interpret the Common Land Consents Policy. |
Court's Reasoning and Analysis
The court began by examining the nature of the rights conferred by registration of a town or village green, recognizing that such rights vest in the inhabitants of the relevant locality or neighbourhood rather than the public at large. It acknowledged the practical difficulty in distinguishing rights holders from other users but emphasized the legal distinction remains important. The inspector's decision letter was scrutinized, particularly paragraph 15, where the inspector referred to "the public" having rights, which was held to be a legal error because the rights are vested only in qualifying inhabitants.
However, the court accepted that the statutory scheme under section 16(6) of the 2006 Act requires consideration of a broad range of interests, including those of rights holders, the wider neighbourhood, the public interest, and any other relevant matters. There is no statutory hierarchy or prescribed weighting among these interests, and the decision-maker must balance them in light of the facts and circumstances.
The inspector's assessment was found to have carefully distinguished between the "defined neighbourhood" (rights holders) and the wider "neighbourhood" (including those without rights), and to have balanced competing interests lawfully and rationally. The inspector also correctly applied the Common Land Consents Policy as requiring an overall balanced assessment of the adequacy of the land exchange rather than a strict "no worse off" test for each interest.
Regarding the "fallback" argument, the inspector took into account the dispute about whether maintenance of the release land by residents was lawful without permission, but did not need to resolve the legal question definitively. The inspector reasonably concluded that the proposed deregistration and exchange would not cause unacceptable harm to nature conservation, considering the fallback as one factor among others.
Although the Senior President of Tribunals found no legal error in the inspector's approach, the two other judges concluded that the inspector did err in law by conflating the rights holders with the general public. Nonetheless, they agreed that any such error was immaterial because the outcome would not have been substantially different if the error had not been made. The balancing exercise and conclusions reached by the inspector were lawful and rational.
Holding and Implications
The court DISMISSED THE APPEAL.
The direct effect of this decision is to uphold the inspector's grant of the application to deregister part of the village green and exchange land. The court confirmed that while the inspector made a legal error in describing the rights as held by "the public", this error was not material to the outcome. The statutory framework permits balancing of the interests of rights holders and other local inhabitants without a prescribed hierarchy. No new precedent was established beyond clarifying the interpretation of section 16(6) of the Commons Act 2006 and the application of the Common Land Consents Policy in this context.