Malpass, R (on the application of) v The County Council of Durham

Where land is held by a local authority on a statutory trust for public recreation, public use is by right, not as of right, and cannot found registration as a town or village green. However, an inspector cannot treat an informal deed or declaration as a lawful appropriation merely because the proposed use is not inconsistent with the original purpose. The statutory basis on which land was acquired or held must be properly established, and any applicable statutory formalities must be observed. Where a registration decision is legally flawed but the evidence could support more than one conclusion, the court should quash or remit the decision rather than substitute its own factual determination.

Local residents applied under the Commons Act 2006 to register Belle Vue Playing Fields as a town or village green. The inspector accepted that the qualifying use had occurred for at least 20 years, but concluded that the use was by right because the land was held for public recreation under statutory trusts arising under the Open Spaces Act 1906 or the Public Health Act 1875.

The inspector relied substantially on a 1964 deed which recorded the land as being held for public recreation. The County Council refused registration. On judicial review, the central issue was whether the inspector had erred in treating the deed as confirming or effecting an informal appropriation without resolving the statutory basis on which the land was acquired or complying with the relevant statutory machinery.

1. The refusal decision was quashed and the matter remitted. The inspector’s reasoning materially relied on an arguable proposition mentioned by Lord Scott in R (Beresford) v Sunderland City Council [2004] 1 AC 889, namely that the statutory trust under section 10 of the Open Spaces Act 1906 might apply where recreational use was current, the land had not been acquired for an inconsistent purpose, and the authority intended recreational use to continue. Lord Scott had expressly left that proposition unresolved.
2. The inspector was entitled to regard statutory recreational use as capable of making public enjoyment by right. If the land had been held under section 10 of the Open Spaces Act 1906 or section 164 of the Public Health Act 1875, the public would have used it under statutory trusts and the qualifying as of right condition would not have been met.
3. That conclusion did not justify treating the 1964 deed as an informal appropriation. The statutory framework governed a local authority’s power to acquire, hold and change the use of land. The inspector had not found, on the balance of probabilities, the purpose for which the land had originally been acquired. His assumption that the recreational use was not inconsistent with the original purpose could not replace that finding. The deed could not confirm a statutory status which had not been established, and the reasoning that no formal appropriation was required was legally flawed.
4. The later minutes were potentially significant. They might have enabled the decision-maker to move from a finding that acquisition under section 164 of the Public Health Act 1875 was possible to a finding that it was probable. That issue remained for the inspector and the registration authority.
5. Under section 31(5) and (5A) of the Senior Courts Act 1981, the court should not substitute its own decision for that of the inspector or registration authority. The matter was remitted for fresh consideration in light of the judgment and the further evidence.

The claim was a first-instance judicial review of the County Council’s refusal to register the land. Permission was initially refused and later granted on a limited error-of-law ground. No appeal history is stated in the judgment.