Good news for developers: Essex village green challenge rejected by High Court
In Naylor v Essex County Council  EWHC 2560 (Admin) the High Court was asked to judicially review Essex County Council’s decision not to register a piece of land in Walton-on-the-Naze as a town or village green, a challenge that was dismissed. Silverbrook Estates Limited, who purchased the land in 2009, can now bring forward their plans to develop the site.
In order to bring a successful application for town or village green registration section 15 of the Commons Act 2006 must apply, so that “a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.
The inspector who led the public inquiry into Mr Naylor’s initial application for registration found that the land had been maintained as a publicly open space or recreation area for most of the 20 year period – as Tendring District Council’s actions in cutting the grass, picking up litter and providing and emptying bins for dog waste suggested they managed or controlled the land under sections 9 and 10 of the Open Spaces Act 1906 or section 164 of the Public Health Act 1875. This meant the public were not using the land “as of right”, i.e. without force, secrecy or permission, but “by right”, i.e. for a purpose for which they had been lawfully invited to use it. The inspector also concluded that there had not been continuous uninterrupted use of the land for lawful sports and pastimes throughout the 20 year period, as three months of engineering works to the adjoining sea wall in 1993 had interrupted the public’s use of the land.
The High Court judge agreed, rejecting Mr Naylor’s arguments that the “by right” principle could not be extended to land that was not owned by a public authority, and that interruption of the public’s use of the land by a third party had to involve a physical ouster of local inhabitants from the land and the disruption must be inconsistent with the continued use of the land as a village green, such as fencing off the land in question, which had not happened during the engineering works.
Silverbrook Estates Limited had clearly permitted, or authorised Tendring District Council to permit, the public to use the land – so that use could not have been occurring without permission – the fact that the Council did not own the land was irrelevant. Physical exclusion of local inhabitants from the land and carrying on an incompatible use of it were two different ways in which interruption of the public’s use of the land for lawful sports and pastimes could happen – here, the works that were carried out meant that the public’s use of the land could not continue during that period – physical exclusion of the public from the area of works was not necessary.
This is a decision to be welcomed, clarifying that if the public is allowed to use land under a local authority’s statutory powers they will be using it “by right”, not “as of right” – and the local authority does not need to own the land in question; and that a physical ouster of local inhabitants from the land is not necessary for there to be an interruption to the 20 year period required for a successful town or village green application under section 15 of the Commons Act 2006.