Village Green or School Playing Fields? – The Conundrum

June 21, 2016

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Report on - Lancashire County Council (LCC) v Secretary of State for the Environment, Food and Rural Affairs 2016

 

The Judge in this case considered an appeal, which challenged a Planning Inspector’s ruling to register four playing fields (neighbouring a Primary School) as a town or village green.

 

The Commons Act 2006 regulates applications to register land as a town and village green. To be successful the applicant must show “a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes of the land for a period of at least 20 years.”

 

The appeal was brought on the following four main grounds:

  1. The requirement of 20 years usage of “any locality” was not met as the administrative area in question (“the locality”) had changed (by way of removal of a University, boundary changes and changes to the name of the administrative area) during the last 20 years, thus the relevant 20 year period of usage could not be shown;
  2. There was no geographical spread of users throughout the locality;
  3. The registration as a town or village green was incompatible with the statutory purpose of educational need; and
  4. As the LCC exercised control over the land, they had given permission for its use, thus the land had not been used by locals ‘as of right’, but rather ‘by right’, i.e. with permission. 

 

The application to appeal failed. If we look at the points above we can assess why:

(1) It was said that nothing in the Act requires the “the locality” to have existed for 20 years but rather requires the use by its inhabitants to have lasted for that 20 year period. As long as the community was at large the same community throughout the 20 year period it did not matter that the University had been removed, neither was there a need for continuation of the same name of the area.

 

(2) It was expressed that no such wording in the Commons Act included a requirement of a ‘spread of users’ neither has it been justified in previous case law. In a previous case (Paddico v Kirklees Metropolitan Council 2011) the Judge said ‘in passing’ that it would be “illogical and unfair” to reject an application on the basis of there not being a spread of the users. 

 

(3) It was decided that educational use of the land would not be frustrated by registration as many educational functions could still be carried out even if the public had a right to use the land. Nevertheless most of the land was not being used for educational purposes at all, the LCC was merely planning ahead to use the land for this purpose in the future if they needed to. 

 

This decision is very different to that decided in an important local case (Newhaven Port and Properties Ltd v ESCC 2015) where the land was already in use as a working harbour. There was clear incompatibly in that case because if the land was registered for the public, it would have created criminal offences in respect of damage to the land when using it to operate and maintain the harbour, and interrupting the public of its use and enjoyment of the land.

 

(4) The meaning of ‘as of right’ in this context is without force, secrecy or permission. It was decided that even though teachers had requested the public to alter what they were doing (by asking them to clean up after their dogs or by asking them to walk elsewhere etc.) this did not amount to permission for the public to be there, neither did it demonstrate that they were there by force, it showed no more than ‘give and take’. 

 

This decision is likely to have broader implications for Local Authorities wishing to object applications to register land as a town or village green, but may be helpful to those individuals wishing to register the land, especially when considering ‘statutory incompatibility’.

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