Laing Homes Ltd., R (on the application of) v Secretary of State for the Environment Food and Rural Affairs

Recreational use of land is not necessarily use as of right merely because it is substantial and continuous. The court must ask how the use would have appeared to a reasonable landowner. Use which defers to agricultural operations, including the growing and harvesting of a hay crop, may indicate that no public recreational right is being asserted. Perimeter walking and dog walking referable to public rights of way must be distinguished from recreational use of the whole land. The relevant locality may be an ecclesiastical parish, and the prescribed application form need not identify it. Public statements may form part of the objective outward appearance of the claimed right.

Laing Homes challenged Buckinghamshire County Council’s decision to register three fields at Widmer Farm as a class [c] village green under section 22(1) of the Commons Registration Act 1965. The Council had accepted an inspector’s recommendation that local inhabitants had used the fields for lawful sports and pastimes, openly, without force or permission, for at least 20 years.

The challenge concerned the effect of agricultural use, the extent and character of recreational use, residents’ public statements about agricultural use, and the identification of the relevant locality. A separate challenge under Article 1 of Protocol 1 was also advanced.

1. The claim succeeded. The Council’s resolution dated 8 April 2002 was quashed on grounds (1), (2) and (3). Ground (4), concerning locality, was rejected.
2. The question whether recreational use was as of right was objective. The court had to consider how the use would have appeared to a reasonable landowner, rather than the subjective beliefs of individual users. The use must be sufficiently regular and substantial to indicate an assertion of the claimed right, but no requirement existed for recreation throughout most daylight hours.
3. The inspector erred in treating the annual growing, cutting, drying, baling and removal of a hay crop as compatible with the establishment of village-green rights. Such operations were agricultural cultivation and harvesting. They interrupted recreational use and showed that users deferred to the landowner’s agricultural use. This was materially different from mowing an established green to facilitate recreation. The issue was one of fact and degree, but the inspector applied the wrong legal approach.
4. The inspector also failed to distinguish adequately between walking and dog walking along recently confirmed perimeter footpaths, referable to public rights of way, and recreational use of the whole of the fields. The inspector had to address whether the remaining activities, once perimeter-path use was considered separately, established use of the entirety of the land for 20 years.
5. The inspector was entitled to identify the Ecclesiastical Parish of Hazlemere as the relevant locality. An ecclesiastical parish is an entity known to law with defined boundaries. Form 30 was concerned with identifying the land claimed and was not a pleading requiring the applicant to commit to a legally correct definition of the section 22 locality.
6. Although users’ subjective knowledge was irrelevant, their public statements could contribute to the outward appearance presented to the landowner. The residents’ associations’ statements that the land should revert to full agricultural use were capable of supporting the landowner’s case, but the inspector had not considered them.
7. The human-rights issues were not determined. Since the domestic-law challenge succeeded and registration could not stand, there was no interference with the claimant’s Convention rights requiring consideration, and no declaration under section 4(2) of the Human Rights Act 1998 was made.

First-instance judicial review proceedings. The Council’s resolution was quashed.