Naylor v Essex County Council

This is a renewed application for permission to appeal against a decision of Deputy High Court Judge, Mr Howell's Queen's Counsel, sitting in the Planning Court on 28 July 2014 who dismissed an application for judicial review of the defendant County Council's decision not to register land within the community of Walton-on-the-Naze as a village green.

The application had been made and the County Council is the relevant authority under section 15(2) of the Commons Act, 2006. The defendant responded by appointing a barrister, Mr Aylesbury to hold a non-statutory public inquiry and produce a report which he did on 11 January 2013. The report concluded that the land in question was owned by a private company but that for many years, possibly from 1974 and certainly from 1989, the District Council have maintained the land as a public amenity for use by local residents and provided services by mowing the lawn, removing litter and erecting dog poo bins on its parameters. The inspector concluded that it was probable that these functions were assumed by the District Council exercising powers under the Open Spaces Act, 1906 that enabled the Council to undertake the care and control of open spaces even if it did not own them.

In its inception the use of such statutory powers would have been with the consent of the land owner and there was a presumption that such powers had been assumed with regularity in the absence of any evidence to the contrary. However, precise evidence as to what had happened in the past was missing.

The problem for the inspector, the defendant who adopted the inspector's conclusions and the legal issue that arose in this judicial review application was whether the local inhabitants, who certainly used the land as a village green, were doing so by right or as of right. These concepts have been very fully discussed in two recent decisions of the Supreme Court that I shall refer to as Barcus [2015] AC 195 and Newhaven Port & Properties Ltd) v East Sussex County Council [2015] 2 WLR 601.

In substance, these cases confirmed the line of authorities that decide that if public access to land for recreational purposes was by permission of the land owner, then the user was not as of right. Where the Local Authority is both land owner and manager of the land under public powers, the conclusion will be drawn that in the absence of unusual circumstances, public user of such land is by permission (See Barcus at paragraphs 24 and 74 of the judgments of Neuberger L and Carnwath L).

Here the claimants submit that the position is different if the land is owned by a private entity, as this land was, and only managed by the Local Authority. There is ample line of authority to suggest that in cases of acquisition of prescriptive rights which term use as of right under the Commons Act, 2006 and its predecessors, although permission of the land owner is fatal to such acquisition, communication of permission is needed before the courts will conclude that that is the status of the relationship.

However, the deputy judge disagreed with this submission and concluded in substance that the reasoning in Barcus applied wherever public access is pursuant to Local Authority management under statutory powers. He also concluded that the observations that the claimant relied upon of Rogers L in the earlier case decided in the House of Lords of Beresford [2004] 1 AC 886 could not apply because in general, that authority had been overruled by Barcus and here, there was the critical element of a public authority exercising its powers.

Permission to appeal was refused by Lewison LJ on 14 November. For completeness, the claimant in this case also takes issue with other alternative reasons of the inspector and the defendant in rejecting the claim for registration, namely whether there had been an interruption of public user. However, those points do not arise unless there is a real prospect of success in the claimant succeeding on this primary challenge to the question of communication of permission by the land owner in this case.

Mr Bowes has helpfully responded to the refusal of permission by a note, a detailed skeleton argument and an advocate's statement in which the contentions of the defendant are very clearly set out. In his oral submissions before me, he has emphasised that it in the claimant's opinion this is simply a case of a pure private land owner where there is ambiguity as to the communication of permissive use to the public and that ambiguity therefore has not been adequately resolved and addressed by the Deputy Judge or the Local Authority. Furthermore, that that the Deputy Judge was wrong to conclude that in those circumstances, some of the observations in Beresford no longer had application to this case.

I am satisfied that the Deputy Judge was correct in his conclusions about the status of Beresford and Neuberger L at 48 said it should no longer be followed, it should be overruled to achieve certainty and Carnwath L said much of the same at 86. That included some critical comments upon the application of the private law principles articulated by Rogers L to the particular facts of that case.

I of course recognise that the fact that the owner of the land here is a private entity is a factual basis for distinction with the outcome in Barcus. If the true ratio of Barcus is that permission for public use of the land is generated by the exercise of public law powers with the consent of the land owner, then in my judgment the consequence for the nature of whether the public exercise access to the land as a right or by right is the same.

Here the private landowner permitted the public to have access to the land by accepting public regulation over the use of the land and it is that factual finding that governs the nature of the public permission in this case. In those circumstances, further acts of communication by the land owner of permission to the public to enter the land was not necessary since the land owner was content for the communication, such as it is characterised, to be continued to be done by the Local Authority who were inviting the public on the land on the landowner's behalf by their acts. I accept that the observations in the previous cases about the need for express communication by land owners where there is no intervention of a public authority in terms of management of the land will remain.

It seems to me in those circumstances that Barcus is clear and not a great deal of assistance can be derived from the recent case of Newhaven which concerned problems where a port authority, now a private body but exercising the powers to make by-laws inherited from former British Rail owners of the port, where it was held that the exercise of by-law powers in respect of the land was inconsistent with public use of the particular land in question as being as of right as opposed to by right. However, to some extent, the principle that where statutory powers have been exercised in respect of the land and the public's presence on that land is explicable by reference to those statutory powers and that that is inconsistent with acquisition of rights over that land may be relevant in the general philosophy of the jurisprudence under this Act.

However, on this primary and central issue of law, in the light of the law as declared in Barcus, in the light of the findings of fact and despite Mr Bowes' attractive and sustained arguments, I conclude that there are no real prospects of success in an appeal from this decision of a specialist judge sitting in the Planning Court. Accordingly, this renewed application for permission to appeal is dismissed.