Norbrook Laboratories Ltd & Ors v Carlisle City Council

A public right of access and recreation created by a statutory scheme regulating common land is distinct from rights of common. Non-registration and consequent extinction of rights of common do not, without clear words or inescapable implication, extinguish that public right. Land finally registered as common land remains common land even if no rights of common are registered. A tree preservation order may be expedient where uncontrolled felling would risk a material loss of amenity. A short oral representation limit may be fair where detailed written submissions were available and no substantial prejudice resulted.

The claimants sought under section 288(1) of the Town and Country Planning Act 1990 to quash a tree preservation order made by Carlisle City Council over Corby Beck Wood. The Council had treated the registered common land as public open space for the purposes of the Forestry Act 1967, so that the Forestry Commission had no felling-licence jurisdiction. The claimants argued that the public right of access in Article 5 of a 1915 scheme under the Commons Act 1899 was a right of common, or depended on rights of common, and had lapsed when those rights were not registered under the Commons Registration Act 1965. They also challenged the amenity assessment and the fairness of a three-minute speaking limit before the Council’s committee.

1. Substantive challenge. The claim failed. Article 5 conferred a public right of free access and a privilege of recreation. It did not confer rights of common or rights akin to rights of common. The Council’s statutory power under section 1 of the Commons Act 1899 was limited to regulating and managing commons, and did not authorise the creation of new rights of common. (paras [36]–[48], [52]–[58])
2. Rights of common which were not registered under the Commons Registration Act 1965 were no longer exercisable. That did not determine the status of the separate public right of access. Following Lewis v Mid Glamorgan County Council [1995] 1 W.L.R. 3131, such a statutory public right is not extinguished save by clear words or inescapable implication. Neither was present. (paras [61]–[79], [89]–[92], [104]–[109])
3. Final registration of the Land as common land was conclusive. Under section 10 of the Commons Registration Act 1965, the Land remained common land even though no rights of common were registered. Corpus Christi College, Oxford v Gloucestershire County Council [1983] Q.B. 360 supported that conclusion. (paras [93]–[105])
4. The Council therefore did not err in treating the Land as public open space for the purposes of the Forestry Act 1967. It was entitled under section 198 of the Town and Country Planning Act 1990 to make a tree preservation order where uncontrolled felling might cause a material loss of public amenity. The departmental guidance required consideration, not slavish compliance, and did not make a tree preservation order lawful only as a last resort. (paras [110]–[127])
5. The procedural challenge failed. The claimants had advance notice of the three-minute rule and had circulated detailed written submissions. The alleged lack of a reply opportunity caused no substantial prejudice. (paras [129]–[143])
6. The application was dismissed.

First-instance judicial review claim under section 288(1) of the Town and Country Planning Act 1990. No prior appellate decision in this litigation is stated in the judgment.