Goodman, R (on the application of) v Secretary of State for Environment Food & Rural Affairs

A local authority’s appropriation of land under Local Government Act 1972, section 122, cannot be inferred merely from management or use of the land. The authority must consciously consider whether the land is no longer required for its existing purpose. A statutory allocation of land for recreation may make public use “by right”, but the court must identify the statutory power under which the land is held. An implied licence may also defeat use “as of right”, but the issue is fact-sensitive. Public ownership and the nature and character of licensed events are material considerations when deciding whether conduct objectively conveyed permission.

Eastern Fields in Exeter was owned by Exeter City Council. Part had been appropriated for employment development and a link road, while former railway-sidings land had been acquired for highway purposes. An inspector nevertheless refused an application under section 15(2) of the Commons Act 2006 to register the land as a town or village green, finding that public use was “by right” because the land had been impliedly re-appropriated to open-space use or, alternatively, because the Council’s licensing of circuses and funfairs implied permission.

The claimant sought judicial review, alleging legal misdirection and failure to consider material matters.

1. Claim succeeded. The inspector’s decision was unlawful and could not stand.
2. The inspector misdirected himself in treating Oxy-Electric Ltd v Zainuddin and Barkas v North Yorkshire County Council as authority for inferring appropriation from the Council’s conduct. Section 122 of the Local Government Act 1972 requires a conscious and deliberative decision that land is no longer required for the purpose for which it is held. Management, tree planting, landscaping or public use cannot, without more, establish appropriation.
3. Barkas concerned the statutory power under which land was held and whether that power comprehended public recreation. It did not support an inference that land had been appropriated from one statutory purpose to another. The statutory power governing the disputed land therefore required investigation, but had not been addressed by the inspector.
4. The inspector also failed to consider material features of the implied-licence issue. Although R (Mann) v Somerset County Council was a legitimate authority to consider, it was fact-sensitive. The land in Mann was privately owned and used commercially. Here the land was publicly owned, and the charged events might be consistent with public recreational entitlement. Those matters were material to whether the Council had objectively signified permission.
5. The alternative temporary-use argument could not support the decision because the inspector had found no evidence that the Council had decided to use the land temporarily as open space. The question whether section 120(2) permitted such use in the circumstances therefore did not require determination.

The claim challenged an inspector’s decision following a public inquiry into registration of Eastern Fields as a town or village green. The High Court found the decision unlawful and held that it could not stand.