Lancashire County Council v The Secretary of State for the Environment, Food and Rural Affairs & Anor

For registration of land as a town or village green, the relevant locality need not retain precisely the same boundaries or legal form throughout the 20-year period. Continuity is a question of fact and degree, including whether the changed area remains essentially the same identifiable community and whether use remains significant by reference to it.

The statutory requirement for a significant number of inhabitants does not require users to be geographically spread throughout the locality or neighbourhood. Statutory incompatibility arises only where registration would prevent or materially hinder the performance of specific statutory functions in relation to the particular land. Occasional requests concerning users’ conduct, without a clear positive act of permission, do not ordinarily make recreational use permissive.

Lancashire County Council challenged an Inspector’s decision registering most of Moorside Fields as a town or village green under Commons Act 2006 section 15. The land was adjacent to Moorside Primary School and had been used for lawful sports and pastimes.

The Council argued that the claimed electoral ward had changed during the relevant 20-year period, that users had to be spread throughout the locality, and that registration was incompatible with the Council’s educational purposes. It also challenged the Inspector’s treatment of evidence concerning acquisition, appropriation and implied permission. The central issues were the meaning of locality, the statutory incompatibility principle, and whether use was as of right.

1. Outcome. Permission to apply for judicial review was granted on all grounds, but the application was dismissed.
2. Locality. An electoral ward may constitute a locality. A change in boundaries, or the simultaneous abolition and replacement of wards, does not necessarily restart the 20-year period. The question is one of fact and degree. The relevant community must remain essentially identifiable, and a significant number of inhabitants of the locality as changed must have used the land throughout the period. The Inspector was entitled to find sufficient continuity in Scotforth East Ward.
3. Geographical spread. Section 15 of the Commons Act 2006 contains no requirement that users be distributed throughout the locality or neighbourhood. The significance of the number of users is assessed by reference to the relevant area, not by the geographical distribution of their residences.
4. Statutory incompatibility. Applying R (Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7, registration is excluded only where public recreational rights are incompatible with specific statutory functions or duties relating to the particular land. It is insufficient that the land might be useful, or more convenient, for a local authority’s general educational functions. Some educational use could continue on the land, and it was not central to the Council’s statutory duties.
5. Evidence and permission. The Inspector was entitled to require evidence of acquisition or appropriation for educational purposes and did not apply the criminal standard of proof. The additional committee minutes were inadmissible under the Ladd v Marshall [1954] 1 WLR 1489 principles. Occasional challenges by teachers, requests to use the perimeter or put dogs on leads, and the school’s general acquiescence did not amount to a clear positive act from which permission could be inferred.

This was a first-instance judicial review in the Administrative Court. The Inspector’s decision dated 22 September 2015 was challenged; the judgment does not state a reported decision of a lower court.