Naylor v Essex County Council

For the purposes of registering land as a town or village green, public use is not automatically by right merely because a local authority has maintained the land. The decision-maker must examine the nature of the use, the landowner’s attitude, any trust creating an open space, and whether the authority acquired and exercised statutory control.

The continuity of 20 years’ use must be assessed in context. An interruption is not necessarily decisive merely because it lasted several months. Relevant considerations include its nature, purpose, effect, the character of the use and the circumstances of the land. A statutory closure may also be disregarded under section 15(6) of the Commons Act 2006.

Richard Naylor sought permission to judicially review Essex County Council’s refusal to register Mill Lane Green and adjoining sea wall as a town or village green under section 15 of the Commons Act 2006. The application had been made by Diana Humphreys. Silverbrook Estates Ltd owned the land, and Tendring District Council was later joined as an interested party.

The Council had adopted an inspector’s recommendation that use of the land was “by right”, because Tendring had maintained it under presumed statutory powers, and that a three-month closure during flood-defence works interrupted the necessary 20-year period. The claim was filed eight days late. The central questions were whether Mr Naylor had standing, whether time should be extended, and whether the proposed grounds of challenge were arguable.

1. Standing and time. Mr Naylor had sufficient interest under section 31(3) of the Senior Courts Act 1981. The statutory right of “any person” to apply for registration, his proximity to and use of the land, and the public interest in lawful decision-making supported standing. He was not a mere busybody. Time was extended to 29 May 2013 because the short delay was satisfactorily explained and the Council’s later refusal to reconsider the decision was itself susceptible to challenge.
2. “As of right”. The proposed challenge was highly arguable. The decision-maker had to assess the whole evidential picture, including the nature of public use, the owner’s attitude, any written trust establishing an open space, whether the local authority had acquired control, and whether maintenance was carried out under statutory control. It was arguably irrational or legally erroneous to presume a statutory trust from maintenance activities alone, without evidence of the necessary trust or control. The private ownership of the land materially distinguished the public-authority cases.
3. Twenty-year use. It was arguable that the inspector had applied an over-simple de minimis approach to the three-month closure. The interruption had to be assessed by reference to its nature, purpose, effect, the character of the use, the site and its surroundings, and the duration of prior use. It was also arguable that access had been prohibited by reason of an enactment and that the period therefore fell within section 15(6) of the Commons Act 2006.
4. Fairness and reconsideration. Grounds based on procedural fairness and the Council’s failure to reconsider or correct an arguably mistaken decision were arguable. An administrative decision could be withdrawn and reconsidered where there was no res judicata or estoppel and no unfair prejudice to affected third parties. A mistaken omission from the register arguably fell within section 19.
5. Permission was refused on the proposed legitimate-expectation ground. Tendring District Council was joined, a protective costs order was made with a £3,000 cap for the Council’s costs, and the Council was invited to reconsider its position.

• Administrative Court: Permission had been refused on the papers. On renewal, permission was granted on four grounds, refused on the legitimate-expectation ground, and the claim was directed to proceed subject to further procedural orders.