Patricia Strack (on behalf of The Woodcock Hill Village Green Committee), R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

Under section 16(6) of the Commons Act 2006, a decision-maker determining deregistration and exchange of village-green land must consider all four statutory interests. The statute sets no hierarchy or prescribed weight. The decision-maker must balance the interests, avoid omission and double-counting, and exercise evaluative judgment subject to conventional public-law review.

The recreational rights created by registration belong only to qualifying inhabitants, although they may broadly be described as public rights. Section 16(6)(b) nevertheless extends to the wider interests of the neighbourhood, including local non-rights-holders who may be tolerated trespassers. The Common Land Consents Policy requires an overall assessment, not a separate no-worse-off result for each interest. A claimed maintenance fallback may be considered without deciding its legality where the overall nature-conservation assessment is rational.

The appellant challenged an inspector’s decision granting Laing Homes Limited’s application under section 16 of the Commons Act 2006 to deregister part of Woodcock Hill Village Green and exchange it for replacement land. The appellant argued that the inspector had conflated the legal rights of qualifying inhabitants with the interests of wider local residents, misapplied the Common Land Consents Policy, and failed to consider a fallback involving local maintenance of the release land.

Lane J dismissed the judicial-review claim in [2023] EWHC 655 (Admin). The appeal concerned the proper scope of the neighbourhood interests, the meaning of the policy’s no-worse-off language, and the treatment of the proposed maintenance fallback.

1. Disposition. The appeal was dismissed. The Senior President of Tribunals considered that the inspector had made no error on Ground 1. Singh and Elisabeth Laing LJJ considered that the inspector had erred in describing the relevant legal rights as belonging to “the public” and had failed clearly to distinguish rights-holders from other residents. They nevertheless agreed that the error was immaterial or that section 31(2A) of the Senior Courts Act 1981 applied, because the outcome would inevitably, or highly likely, have been the same.
2. Nature of the rights and statutory interests. Registration creates recreational rights vested in inhabitants of the locality or neighbourhood on which registration was based. Those rights may broadly be called public rights, but non-qualifying users do not enjoy the same legal rights and may be tolerated trespassers. Section 16(6)(b) of the Commons Act 2006 extends to the interests of the neighbourhood in its wider sense, including local inhabitants without legal rights. The four considerations in section 16(6) have no hierarchy, priority or prescribed weighting. The decision-maker must consider all of them, avoid omission and double-counting, and exercise evaluative judgment subject to conventional public-law review.
3. Inspector’s assessment. The inspector was entitled to structure his decision letter as he did, provided that all statutory considerations were addressed. The Senior President considered that he had distinguished qualifying inhabitants from wider local residents and had lawfully balanced their interests. Singh and Elisabeth Laing LJJ disagreed on that application of the legal principles, but regarded any error as incapable of affecting the result. The Court would not substitute its own assessment for the inspector’s evaluative judgment and read the decision letter fairly as a whole, following the approach in St. Modwen Developments Ltd. v Secretary of State for Communities and Local Government [2018] PTSR 746 and R. (on the application of Tadworth and Walton Residents’ Association) v Secretary of State for the Environment, Food and Rural Affairs [2015] EWHC 972 (Admin).
4. Policy. Paragraph 5.1 of the Common Land Consents Policy requires an overall assessment of the effects of the proposed exchange on the statutory interests. It does not require every category of interest separately to obtain a net benefit or suffer no harm. The inspector’s assessment complied with that interpretation.
5. Fallback and nature conservation. The court cautioned against treating the objectors’ proposed maintenance course as identical to a planning fallback of the kind considered in R. (on the application of Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314. The inspector had considered the proposed maintenance and was entitled to attach such weight to it as he judged appropriate. He did not need to decide whether ecological maintenance was itself a lawful sport or pastime. That question was left open for determination when necessary on full argument.
6. The inspector’s decision was therefore upheld and no remittal was ordered.

• Court of Appeal (Civil Division): The appeal from the Administrative Court was dismissed: [2024] EWCA Civ 420.
• High Court of Justice, King’s Bench Division, Administrative Court: Lane J dismissed the judicial-review claim challenging the inspector’s decision under the Commons Act 2006: [2023] EWHC 655 (Admin).