Naylor v Essex County Council

Use of privately owned land for recreational purposes is “by right”, rather than “as of right”, where a local authority lawfully makes the land available for public recreation under an arrangement with the owner. This remains so even if the authority has no legal estate or interest in the land. The relevant question is whether users were trespassers, not whether the owner could terminate the arrangement. A registration authority has a discretion to investigate beyond the parties’ evidence, but a claimant must show that a reasonable authority would have made further inquiries and that the missing information could materially affect the decision. Works which make recreational use impossible may interrupt the required period of continuous use even without physical exclusion. Section 15(6) of the Commons Act 2006 concerns statutory prohibitions on access, not works which merely prevent recreational use.

The claimant sought judicial review of the decision of Essex County Council, acting as registration authority, not to register land at Walton-on-the-Naze as a town or village green under section 15(2)(a) of the Commons Act 2006. The application had followed a non-statutory public inquiry and an Inspector’s recommendation that registration be refused.

The claimant alleged that the Inspector and Committee had wrongly treated public use as “by right”, failed to investigate the legal basis on which Tendring District Council had maintained and managed the land, and wrongly concluded that public use had been interrupted during sea-defence works in 1993. The central issues were the meaning of “as of right”, the scope of any investigative duty, continuity of use, and the application of section 15(6).

1. Claim dismissed. The County Council was entitled to reject registration on the basis that public use had been “by right” during part of the relevant period. It was also entitled, independently, to find that use had been interrupted in 1993.
2. “As of right” is the antithesis of “by right”. Where a local authority manages privately owned land for public recreation under an arrangement with the owner, the owner has permitted, or authorised the authority to permit, public recreational use. The authority’s permission is communicated by making the land available for that purpose. Users are therefore not trespassers, even if the arrangement is terminable.
3. A local authority may act under section 9(b) of the Open Spaces Act 1906 without first acquiring an estate or interest under section 9(a). An agreement for care and management may suffice. It is unnecessary to resolve the precise distinction between management and control, or whether a statutory trust under section 10 applies, because the public-right conclusion follows from the lawful recreational arrangement itself.
4. A registration authority has discretion to obtain further evidence, subject to fairness and rationality. Ordinarily it may rely on the evidence supplied by the parties, especially after a public inquiry. Further investigation is required only where a reasonable authority would have taken the proposed steps to obtain information without which no reasonable decision could have been made. That threshold was not met.
5. Physical exclusion and an incompatible use are alternative forms of interruption. Works which prevent lawful sports and pastimes from continuing may interrupt use without fencing or complete physical ouster. Whether a break is sufficient is primarily a matter for the registration authority, subject to ordinary rationality review.
6. Section 15(6) of the Commons Act 2006 disregards periods during which access is prohibited by enactment. It does not cover works carried out under statutory powers which, in fact, prevent recreational use. The claim was accordingly dismissed.