Lancashire County Council, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs & Anor

Registration under the Commons Act 2006 is barred by statutory incompatibility only where, as a matter of statutory construction, the specific statutory purposes for which land is acquired and held are inherently inconsistent with registration. Public ownership, general statutory duties, future development powers, or increased inconvenience are insufficient. There is no blanket exemption for public authority land. A locality may remain continuous despite boundary changes if an identifiable community persists. No additional geographical spread of users is required. Whether use is as of right is fact-sensitive; occasional management of conflicting uses need not imply permission. A registration authority departing from an inspector must give intelligible reasons, but a brief statement of a different impression may suffice on an impressionistic neighbourhood issue.

Two appeals concerned registrations of land as town or village greens under section 15 of the Commons Act 2006. Lancashire County Council challenged the registration of Moorside Fields after Ouseley J. dismissed its judicial review claim in [2016] EWHC 1238 (Admin). Timothy Jones challenged Gilbart J.’s decision quashing the registration of Leach Grove Wood, while NHS Property Services opposed the appeal.

The central questions concerned statutory incompatibility, the evidential standard for proving the statutory purpose for which land was held, continuity of a locality, geographical distribution of users, use as of right, and the adequacy and fairness of the registration authority’s reasons.

1. Disposition. Lancashire County Council’s appeal was dismissed. Mr Jones’s appeal was allowed and NHS Property Services’ cross-appeal was dismissed.
2. The principles in Newhaven Port and Properties [2015] UKSC 7 apply whenever two statutory regimes are said to conflict. They require statutory construction of the relationship between section 15 of the Commons Act 2006 and the specific statutory purposes for which the land is held. There is no blanket exemption for land owned by public bodies. General education and health functions, powers to develop land in future, or the fact that registration might make some uses less convenient do not create incompatibility. In neither case did a specific statutory purpose attach to the land in a way inherently inconsistent with registration.
3. The inspector applied the civil standard of proof. Her statement that it was not possible to be sure did not impose a higher standard. The presumption of regularity could not substitute for evidence of the purpose for which land had been acquired and held. Her conclusions were neither irrational nor legally flawed. Further evidence was inadmissible under Ladd v Marshall [1954] 1 W.L.R. 1489; the exceptional mistake-of-fact approach in E and R [2004] Q.B. 1044 did not alter the outcome.
4. A locality may remain continuous despite changes to administrative boundaries if a continuous, identifiable community exists. Section 15 contains no additional requirement for a geographical spread of users. Use as of right, including whether occasional challenges implied permission, was a question of fact and judgment. The inspector was entitled to find peaceful co-existence.
5. The county council owed a common-law duty to give reasons for departing from the inspector’s recommendation. The brief explanation that the committee had formed a different impression was intelligible and adequate because the existence of a neighbourhood was an impressionistic issue. The post-inquiry imbalance in representations caused no procedural unfairness.

• Court of Appeal (Civil Division). Dismissed Lancashire County Council’s appeal, allowed Timothy Jones’s appeal, and dismissed NHS Property Services’ cross-appeal.
• Administrative Court, Planning Court. Ouseley J. dismissed the challenge to the Moorside Fields registration in [2016] EWHC 1238 (Admin). Gilbart J. upheld the challenge to the Leach Grove Wood registration in [2016] EWHC 1715 (Admin).