Allaway & Anor, R (on the application of) v Oxfordshire County Council & Ors

Use of paths may contribute to establishing a town or village green where, viewed objectively, it would appear to a reasonable landowner to be recreational use asserting rights over the land as a whole. Use referable to an actual or emerging public right of way must be excluded. The statutory requirement for use by a significant number of inhabitants of a locality does not require users to be geographically spread throughout that locality. Significance is an ordinary, fact-sensitive question of impression, directed to whether the land is in general use by the local community rather than used occasionally by individuals.

The claimants sought judicial review of Oxfordshire County Council’s decision to accept an inspector’s recommendation that an agricultural field at Humpty Hill, Faringdon, be registered as a town or village green under section 15(2) of the Commons Act 2006.

They challenged the inspector’s treatment of perimeter-path use and his conclusion that a significant number of inhabitants of Great Faringdon had used the land. The inspector had found extensive recreational use, including walking, dog walking, children’s play and seasonal activities, and had discounted use attributable to public rights of way. The central issues were whether his approach and reasons were legally adequate and whether the statute required a geographical spread of users across the locality.

1. Path use. The question whether walking on a defined track contributes to recreational use of a green is objective. Where use of the track could give rise to a presumption of dedication as a highway, the court must ask how the use would have appeared to a reasonable landowner. If the position is ambiguous, the less onerous public-right-of-way explanation will generally be preferred.
2. The inspector had applied that approach. Read fairly and as a whole, his reports showed that he discounted use of the public footpath and use of the paths as part of a route between points outside the land. He was entitled to treat the remaining circular and perimeter walking, together with dogs’ movements and other recreational activities across the field, as informal recreation referable to a village-green right. His reasons were adequate.
3. The case was distinguishable from Dyfed County Council v Secretary of State for Wales (1990) 59 P&CR 275, where the treatment of path use was inadequately reasoned, and from R (Laing Homes Limited) v Buckinghamshire County Council (2004) 1 P&CR 36, where use of recently confirmed public footpaths had wrongly been counted as recreational use.
4. Significant number and locality. Section 15 of the Commons Act 2006 contains no requirement that users be spread across the whole locality. The relevant question is whether a significant number of inhabitants of the locality have used the land as of right for lawful sports and pastimes. Significance is a matter of impression, assessed in context, and the number must indicate general use by the local community rather than occasional use by individuals.
5. The inspector had applied that test. He was entitled to conclude that the land was well used by local people, although most users lived near it, and that equal use by all parts of Faringdon was unnecessary. Both grounds therefore failed. There was no need to consider section 31(3C) of the Senior Courts Act 1981. Permission would have been granted, but the claim for judicial review was dismissed.

First-instance judicial review claim. No prior appellate decision was stated in the judgment.