Patricia Strack, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs

In an application to deregister and exchange village-green land, “the interests of the neighbourhood” under section 16(6)(b) of the Commons Act 2006 means local inhabitants generally. It is not confined to the inhabitants whose use established the original registration. Section 16(6) requires the decision-maker to have regard to the specified categories of interest, but creates no hierarchy between them and gives no inherent priority to registered rights-holders. The decision-maker must balance the relevant interests and reach an evaluative judgment. A proposed fallback position may be relevant, but the decision-maker need not resolve every underlying legal dispute where the factual likelihood of that position occurring is sufficiently clear.

The claimant sought judicial review of an inspector’s decision allowing an application under section 16 of the Commons Act 2006 to deregister part of Woodcock Hill Village Green and exchange it for replacement land. The claimant argued that the inspector had misunderstood the rights of the inhabitants whose use had secured registration, had wrongly considered the interests of persons outside the relevant neighbourhood, and had failed to consider local residents’ proposed maintenance of the release land as a fallback position.

The central questions were the meaning of “the interests of the neighbourhood” in section 16(6)(b), whether section 16 imposed any hierarchy between the listed interests, and whether the inspector had failed to take account of a material consideration.

1. Meaning of neighbourhood. Section 16(6)(b) of the Commons Act 2006 uses “neighbourhood” in a broader sense than section 15. It refers to local inhabitants and is not limited to the neighbourhood whose inhabitants established the original registration. That interpretation is supported by the statutory structure, including the absence of a corresponding “locality” provision and the parallel wording of section 39.
2. No statutory hierarchy. Section 16(6) requires regard to be had to the interests of rights-holders, the neighbourhood, the public interest and any other relevant matter. It does not require rights-holders to receive priority or inherent additional weight. The Common Land Consents Policy does not require every interest group to be shown to be no worse off. The decision-maker must balance the relevant interests and decide whether the exchange is inadequate.
3. The inspector understood the distinction between the formal rights of inhabitants of the defined neighbourhood and the practical use of the green by the wider public. His consideration of effects on both the defined neighbourhood and wider local inhabitants was lawful. The balancing exercise was a matter of professional judgment and disclosed no legal error.
4. Fallback position. The inspector expressly considered the possibility that local residents might resume maintenance work for nature-conservation purposes. He was entitled to place significant weight on the fact that little work had occurred since permission was withdrawn. He therefore did not need to decide whether the proposed activities were themselves lawful sports or pastimes. There was no failure to consider a material matter and no irrational non sequitur.
5. The claim was dismissed. The court declined to express a view on the extent to which the proposed nature-conservation activities fell within lawful sports or pastimes.

The judgment describes a challenge to an inspector’s decision dated 24 May 2022 allowing the section 16 exchange application. The Administrative Court dismissed the judicial-review claim.