Forbes v Wokingham Borough Council

There is no statutory requirement that every stage of a commons registration authority’s decision-making process take place in public. A council may adopt a procedure allowing public representations at a meeting while reserving private discussion and decision-making, provided the procedure is lawful and fair.

For registration of a town or village green, uses referable to the assertion of a public right of way, including activities incidental to that use, may be excluded from the assessment of use for lawful sports and pastimes. The authority must assess the qualifying recreational use as a whole, rather than treating each activity in isolation. A decision-maker may adopt an inspector’s conclusions where the material issues have already been addressed and the decision records that the submissions and report were considered.

The claimant sought permission to apply for judicial review of Wokingham Borough Council’s refusal to register land as a new town or village green under section 15(3) of the Commons Act 2006. The council had appointed an inspector to conduct a non-statutory inquiry. The inspector concluded that the claimant had not shown sufficient qualifying use during the relevant twenty-year period, and the council adopted that conclusion.

The claimant challenged the decision on four grounds: that the decision-making process should have been wholly public; that the inspector had failed to assess activities cumulatively; that she had wrongly excluded certain activities as lawful sports and pastimes; and that the council had failed to give adequate reasons for adopting the inspector’s conclusions.

The court also considered whether the claimant could obtain costs protection under the Aarhus Convention.

1. Permission refused. All four grounds were unarguable.

2. Section 15(3) of the Commons Act 2006 required proof that a significant number of inhabitants of a locality or neighbourhood had indulged, as of right, in lawful sports and pastimes on the land for at least twenty years. The central question was what use was being made as of right, assessed through the perspective of a reasonable landowner.

3. The approach in Oxfordshire County Council v Oxford City Council [2004] EWHC 12 (Ch) was relevant. Where use was ambiguous, it was generally appropriate to treat it as referable to the less onerous claim of a public right of way rather than the more onerous claim to use land as a green. Uses incidental to an asserted right of way could also be treated as part of that use. The reasoning in Dyfed County Council v Secretary of State for Wales (1990) 59 P & CR 275 did not establish the converse proposition that recreational activities could not be incidental to use of a right of way.

4. The inspector was entitled to conclude that much of the evidence related to use of tracks as a public right of way. After that use was excluded, the remaining recreational evidence was limited and did not establish the required quality and quantity of use. The inspector had considered the non-right-of-way use as a whole, including occasional activities and seasonal snow play.

5. The council’s constitution lawfully provided for public representations followed by private discussion and decision-making. Section 100A of the Local Government Act 1972 did not require the private decision-making process to be treated as a public meeting.

6. The council’s statement that it had considered all submissions and the inspector’s reports gave sufficient reasons. It was unnecessary to address separately arguments which had already been dealt with in those reports.

7. The proceedings were not an environmental claim within article 9(3) of the Aarhus Convention. Accordingly, section 88(3) of the Criminal Justice and Courts Act 2015 prohibited a costs capping order because permission had not been granted. The claimant was ordered to pay the defendant’s costs of £3,722 and the interested party’s costs of £5,736.88.

This was a renewed application for permission to apply for judicial review after permission had been refused on the papers by a deputy judge of the High Court. The Administrative Court refused permission after rejecting all four grounds.