Naylor v Essex County Council

This renewed application for permission to apply for judicial review is made by Mr Richard Naylor (“Mr Naylor”) who seeks to challenge the decision of the defendant Commons Registration Authority, Essex County Council (“ECC”), dated 22 February 2013 to refuse to register an area of land described in the application to register it as ‘Mill Lane Green and adjoining sea wall’, Mill Lane, Walton-on-the-Naze, Essex as a town or village green pursuant to section 15 of the Commons Act 2006 (“CA”). Mr Naylor is acting in person and he initially presented his renewed application orally at a hearing on 16 October 2013. He is a local resident living in Saville Street close to Mill Lane Green (“MLG”). The first interested party, Silverbrook Estates Ltd, (“Silverbrook”) acquired the freehold of MLG in May 2009 and is its current registered proprietor. The second interested party, (“Ms Humphreys”), was the original applicant for registration. The application site is located within the boundaries of Tendring District Council (“TDC”) and its predecessor Walton-on-the-Naze Urban District Council (“WNUDC”). TDC was not joined by Mr Naylor as an interested party but it is sufficiently interested in the subject-matter of the judicial review that it should be joined as a third interested party to his claim.

The application for permission to apply for judicial review was refused on the papers by Ms Elizabeth Cooke sitting as a deputy High Court judge in a decision dated 28 June 2013. Mr Naylor’s renewed application for permission was first argued in court on 16 October 2013 when only he appeared. On that occasion, three procedural issues arose:

I heard Mr Naylor’s submissions in relation to all three of these issues and his renewed application for permission. I reserved judgment and informed Mr Naylor that if he lost on any of the issues, I would dismiss his renewed application but that if I was minded to grant him permission, I would set out my provisional reasons for reaching that provisional conclusion which would be served on all parties. If any party wished to contest the provisional grant of permission, I would order the renewed permission application to be re-listed to be re-argued in court at a contested permission application. I sent out provisional reasons to all parties setting out my reasoning that explained why I was minded to grant Mr Naylor permission. ECC served notice of its wish to contest the renewed application accompanied by a detailed skeleton submission prepared by Mr Evans of counsel that addressed my provisional reasons. The renewed application was in consequence re-listed and re-argued in open court on 5 February 2014. On that occasion, Mr Naylor again appeared in person, Mr Evans and his instructing solicitor from ECC appeared for ECC and Mrs Humphreys appeared in person to support Mr Naylor.

The first procedural issue relating to the possible withdrawal of the claim is no longer live and I will not deal with it. This judgment, unusually full as it is for a permission decision, sets out my reasons why Mr Naylor has sufficient standing to bring this judicial review claim, why his time for filing the claim should be extended and why permission to apply for judicial review should be granted on four discrete grounds. It also addresses four separate procedural issues concerned with the substantive hearing, being Mr Naylor’s application for a restrictive costs order, the joinder of TDC as a third interested party, disclosure from TDC and Silverbrook and a timetable for the substantive hearing.

In view of the detailed and helpful submissions prepared by Mr Evans and served by ECC and those served in reply by Mr Naylor and the submissions from both at the oral hearing that followed, I have rewritten my provisional judgment. In this rewritten judgment, I identify the four grounds for which permission is granted and a fifth ground for which permission is refused and provide relatively brief reasons for each of these decisions and for the consequent procedural orders.

Walton Mere was historically a tidal inlet which formed part of Hamford Water and is located within Walton-on-the-Naze, Essex. A tidal mill was built on Walton Mere in the Middle Ages. It was separated from the sea by a bund which formed a reservoir for the mill. The mill was demolished many years ago but the bund and sluice gates were retained. MLG forms a wedge between the southern end of Walton Mere and the adjacent Mill Lane and from the time that the reservoir was constructed was an area of salt marsh. It is open to the carriageway of Mill Lane on its west side with a small drop down to the level of Mill Lane.

In the 1930s, Walton Mere was turned into a boating lake and the freehold of Walton Mere including MLG and the boating lake business were acquired by Mr Ted Carter in about 1945. In 1953, Hamford Water flooded during the East Coast disaster and in 1954 as part of the flood defence system erected in the aftermath of that disaster, a sea wall was built seaward of the bund so as to enclose Walton Mere on its landward side. This flood defence work left MLG as a grass-covered triangle of dry land on the landward side of the sea wall. The oldest inhabitant who gave evidence to the inquiry and who had been an inhabitant of the neighbourhood for over seventy years remembered that the boating lake had been fenced round and the area of the site was an open space of grass. She and other long-standing inhabitants of the neighbourhood could remember MLG being used by dog walkers and as a recreation area. The inspector did not make a finding as to when this custom started since it was not necessary for him to do so but the evidence he recorded from these inhabitants suggested that it probably dated back to sometime soon after the construction of the sea wall and the consequent drying out of the salt marsh that the site had been since the Middle Ages.

It seems that by 1974, WNUDC used to cut the grass on and pick litter from MLG on a regular basis but there was no evidence presented to the inquiry as the circumstances under which this arrangement started or was continued. Mr Carter operated the boat hire business on Walton Mere until he abandoned it as being uneconomic in about 1976. Mr Carter continued to own both Walton Mere and MLG until his death in March 2004 but the evidence suggests that he was somewhat reclusive and many of those using MLG wrongly thought that MLG was owned by WNUDC.

WNUDC ceased to exist in 1989 and its area was subsumed into TDC. The evidence that Silverbrook obtained from TDC was that TDC had continued regularly to cut the grass, pick litter and erect and empty the dog-litterbins on MLG since 1989 as part of the Frinton and Walton Grounds Maintenance Contract that it had let out to a private contractor. For a period of about 3 months in the summer of 1993, MLG was taken over by Costain Building and Civil Engineering Ltd (“Costain”) as part of extensive sea defence works involving the replacement and heightening of the sea wall enclosing Walton Mere that Costain carried out under contract for the National Rivers Authority (“NRA”). TDC arranged for the maintenance contractor to install a dog-waste bin on the land in 1998. It unsuccessfully attempted to register possessory title to the site in 2002 on the grounds of its suggested adverse possession but the application was refused by the Land Registry because it decided that the grass cutting and the servicing of the dog-waste bin that TDC had arranged to be carried out were insufficient to establish the necessary degree of occupancy required to establish adverse possession of the site.

Mr Carter died in March 2004 and his executors owned both Walton Mere and MLG until they sold both to Silverbrook in May 2009. In April 2011, Ms Humphreys lodged her registration application with ECC, in September 2011, Silverbrook lodged a planning application with TDC to develop Walton Mere and MLG and in October 2011 it informed TDC that TDC had to cease mowing the grass on and removing litter from MLG and it also instructed TDC to remove the dog-waste bin it had previously located there. Silverbrook took this action on the grounds that it, as site owner, was no longer consenting to these activities taking place. It seems that TDC agreed forthwith to take these steps because it considered that they were not being taken under statutory powers and the freehold owner had the right summarily to put a stop to them. Following ECC’s refusal to register MLG as a town or village green in February 2013, Silverbrook erected a locked gated fence enclosing the whole site and put up signs stating that the land was private property.

It follows from this evidence that the site has, since at least the time of the construction of the bund enclosing Walton Mere, always been in private ownership, open, unfenced and for at least 70 years and possibly for much longer used by inhabitants of the neighbourhood and other members of the public for recreational purposes. There is no evidence that the site owner of MLG, including Mr Carter’s predecessors in title, has ever dedicated, granted or reserved the site to the public for recreational use or for use as an open space, public walk or pleasure ground or has ever reached an agreement with WNUDC or TDC that either local authority would manage, control, administer or maintain the site under sections 9 and 10 of the Open Spaces Act 1906. Moreover, there is no evidence that any site owner has ever objected to the public using the site for recreational and sporting purposes until October 2011 when Silverbrook terminated the regular mowing and litter picking operations that TDC and WNUDC had been carrying out for at least 37 years.

By an application dated 11 April 2011, Ms Humphreys applied to ECC to register “MLG and the footpath along the top of the sea wall” as a town or village green under section 15 of the CA. In accordance with established practice in such cases, ECC appointed Mr Alun Alesbury, a practising barrister, as an inspector to conduct a non-statutory advisory public local inquiry into the application. Silverbrook applied to be, and was granted, the status of an objector at the inquiry which was held by Mr Alesbury on 6, 7 and 8 November 2012. His report was provided to ECC on 11 January 2013. In it, the inspector recommended that ECC should reject the application on two grounds. These were that although a significant number of residents in the neighbourhood of MLG had used it for lawful sports and pastimes, that use was not a use “as of right” and it had not been uninterrupted use for a period of 20 years stretching back from the date of the application, both being requirements of section 15 of the CA. ECC accepted and adopted this report and rejected Ms Humphreys’ registration application in a decision dated 22 February 2013.

This claim for judicial review was filed by Mr Naylor on 30 May 2013, 8 days outside the 3-month period for filing such a claim. ECC filed an acknowledgement of service and summary grounds of defence on 13 June 2013. No acknowledgments of service were filed by Silverbrook or Ms Humphreys. Mr Naylor did not provide or give evidence at or to the inquiry. His house is located very close to MLG and is within the locality but not the neighbourhood adopted by the inspector in reaching his conclusion that a significant number of residents of the neighbourhood had used MLG for lawful sports and pastimes. ECC contended in its acknowledgement of service and summary grounds for contesting the claim that permission should be refused on the grounds that the claim has been filed out of time by a claimant who had no legitimate interest in its subject-matter as well as on detailed grounds relating to Mr Naylor’s grounds of claim.

Following the refusal of permission by the deputy High Court Judge in a decision that was dated 9 July 2013. Mr Naylor filed a renewed application with full supporting reasons on 11 July 2013.

It follows that at the renewed hearing for permission, Mr Naylor’s grounds were set out in the claim form and statement of facts filed on 30 May 2013, his grounds for reconsideration dated 11 July 2013 and his submissions dated 28 January 2014 and ECC’s summary defence and response was set out in the acknowledgement of service and summary grounds for contesting the claim filed on 13 June 2013 and its counsel’s submissions in relation to the provisional judgment that were dated 20 January 2014.

The centuries-old cultural and legal history of commons and town and village greens is summarised with remarkable lucidity by Lord Hoffman in Oxfordshire County Council v Oxford City Council (Footnote: ¹). That history shows that the policy of both the common law and the post-war statutory law has been to protect open areas of both urban and rural environments where local inhabitants have congregated in order to engage in sports and pastimes. The inspector’s findings of fact in his report to ECC about the MLG registration application shows that that site has been used by the public for a period of at least 37 years prior to the application to register it as a town or village green for the purpose of lawful sports and pastimes. The CA scheme for the registration of town or village greens is intended to identify and help preserve such greens, it does not create rights of or over such greens, and instead it protects pre-existing rights concerned with the recreational use of greens by local inhabitants.

Anyone may apply to register a town or village green even if they have no local connection with the site that is the subject of that application. In order to register a green, a number of preconditions must be established. Three are relevant in this case:

Section 15 of the CA requires each of these preconditions to be established before the site in question qualifies for registration. The inspector advised in his report that the first group of four preconditions were satisfied. This application for judicial review challenges the inspector’s conclusion that the other two qualifying conditions were not satisfied. He concluded that the site was an open space whose use was, in consequence, “by right” and “not as of right” and that the closure of the site to sports and pastimes for about 3 months in 1993 by land drainage works prevented the establishment of a 20-year user period for sports and pastimes measured backwards from the date of the application.

CA. The relevant sections of the CA 2006 are as follows:

Open space – Summary of relevant provisions. An open space is defined in section 20 of the Open Spaces Act 1906 as being “any land, whether inclosed or not, on which there are no buildings … which is laid out as a garden or is used for purposes of recreation, or lies waste and unoccupied.” The relevant part of the definition is set out in bold italics since the site was not laid out as a garden and was never lying waste or unoccupied. For the land to be an open space, its use is by the public. Such land is subject to the relevant parts of three further sections of that Act as follows:

A local authority may …

A local authority who have acquired control over any open space … shall … subject to any conditions under which the … control was acquired …

Public walks or pleasure grounds. The creation of a public walk or pleasure ground is provided for in section 164 of the Public Health Act 1875. This provides:

“164.

Any local authority may purchase or take on lease lay out plant improve and maintain lands for the purpose of being used as public walks or pleasure grounds and may support or contribute to the support of public walks or pleasure grounds provided by any person whomsoever.”

Issue explained. ECC contended that Mr Naylor had no standing to claim judicial review of its registration refusal decision because he did not fulfil the requirement of section 31(3) of the Senior Courts Act 1981 that the court should not grant leave to make an application for judicial review unless it considers that the applicant has a sufficient interest in the subject-matter of the application. Mr Naylor was not an inhabitant of the neighbourhood which had been relied on by the applicant in support of her application, he had played no part in the inquiry and he would not be entitled to use the site if it was registered as a town or village green. He was, in reality, “a mere busybody interfering in things which do not concern him (Footnote: ³)” who was therefore someone whose claim was shut out by section 31(3) of the Senior Courts Act 1981.

Mr Naylor’s response. Mr Naylor’s response was that he lived close to the application site and in a house within its locality as found by the inspector. He was also a resident of the District Council in whose area the site was located and of ECC which is the relevant town and village green registration authority. Although he had not lived for any appreciable time in his present house, he had been living in the locality for some time and he regularly used MLG for recreational purposes. Finally, he had a genuine interest and desire to ensure that the law was correctly applied to this application and, if he lacked sufficient personal interest in it, he nonetheless had a legitimate public interest in the application and in seeing that it was correctly decided given the importance of MLG to the local inhabitants and the need to ensure that ECC correctly, diligently and fairly applied the law it was concerned with.

Discussion. ECC’s submissions overlooked five factors relevant to Mr Naylor’s standing. Firstly, the CA permits “any person” to apply to register a town or village green and does not confine the jurisdiction to make the application to someone inhabiting the neighbourhood or locality used to support it. If Mr Naylor had jurisdiction to apply in the first place, it would seem wrong in principle to deny him the opportunity of seeking judicial review of an allegedly erroneous decision taken by the appropriate registration authority in relation to that application. Otherwise, the only person who could challenge ECC’s decision would be the individual applicant, Ms Humphreys, who made the original application and, possibly, the limited class of people who submitted written or oral evidence to the enquiry.

Secondly, ECC’s submission is based on an incorrect understanding of the status of a neighbourhood in a town or village green application and registration. A neighbourhood must be identified as being the area from which a “significant number of the inhabitants have indulged in” the relevant activities for the relevant period of time. The defined neighbourhood within a locality or the locality itself is therefore used evidentially to define the class of persons from which a significant number must be shown to have used the green for town or village green purposes. That area must first be determined by the registration authority advised in a contested application by the inspector conducting the relevant inquiry. Often, as in this case, it will be a matter of controversy whether there is a relevant neighbourhood within a locality or a locality at all or, if there is, what its boundaries are. Once established, the decision-maker, again as advised by the inspector, must determine whether a significant number of the inhabitants (another concept not further defined but clearly a different concept to “residents”) of the land area decided upon have used the site for the nebulous purpose of lawful sports or pastimes over a period of 20 years. Many users of the site will not have been inhabitants of the defined area and the body of inhabitants who have used the site at any one time will fluctuate significantly since many users will move, die or lose interest in the site and a regular user’s use will also fluctuate. Thus, if those entitled to use the registered site as a town or village green are confined to current inhabitants of the defined area, whether neighbourhood or locality, there would be many who had used the site prior to registration on a regular basis, including those who had used it for 20 years or more, who would be excluded from using it after registration.

Mr Evans contended that it is axiomatic that only inhabitants in the registration area would be entitled to use the site for games or pastimes after it had been registered but that axiom is not spelt out in the legislation. It may have been the case under the previous process of registration under the Commons Registration Act 1965 which merely provided that land which was a town or village green “shall be registered” and, historically, the use of common land or town or village greens was confined to inhabitants of the physical area who “owned” the site in question. However, qualification for registration under the CA is not equated with the identity of permitted users after registration.

This issue is not easy to determine definitively, particularly as there is no mechanism provided for enforcement of any prohibition on use. Moreover, in practice, use of town or village greens is never confined to inhabitants of the defining area. However, it is arguable, to say the least, that any member of the public, and certainly any local inhabitant of the relevant locality may use the MLG town or village green once it is registered.

What is clear is that Mr Naylor, even if he was not entitled in strict law to use MLG if registered, nonetheless had a reasonable expectation that he would be able to use it and he therefore had a personal interest in the ECC refusal decision particularly as he lives very close to the defined neighbourhood and within the wider locality of the application site as determined by the inspector, he used it for lawful sporting and recreational use before the site was fenced off by the current owner of the land and will resume his use of it if it is registered as a town or village green under the CA in the future.

Thirdly, Mr Evans submitted that the limitation of a town or village green to inhabitants of the defining area was based on what on analysis is a short and inconclusive dictum of Lord Hoffman in the Oxfordshire County Council case. That dictum was based on the historic role of a town or village green and a registration governed by the 1965 Act. It can provide no more than tangential guidance to the situation prevailing under the 2006 CA.

Fourthly, Mr Naylor cannot fairly be shut out from bring a Judicial Review claim on the ground that he did not participate in the inquiry. He had good reason not to give evidence to the inquiry since the application, once refined and presented to the inspector, was confined to a neighbourhood application so that the evidence of use by a locality resident who was not also a resident of the neighbourhood would not be relevant to the establishment of neighbourhood use and his non-involvement in the provision of written or oral evidence is neither significant nor exclusionary.

Fifthly, Mr Naylor has sufficient standing to bring these judicial review proceedings because he is, or can be seen to be, acting in the public interest since it is a matter of general public interest that ECC makes a legally correct decision in relation to a town or village green application. As an inhabitant and a community charge payer within the area of the registration authority and of the district council where the green is located, Mr Naylor has sufficient public interest standing to bring these proceedings even if he had no other personal interest in the subject-matter of the judicial review.

For these reasons, I conclude and determine that Mr Naylor has sufficient standing to bring this claim. He has good and sufficient standing and interest in the subject-matter of the proceedings, is not a “mere busybody”, is representing the public interest in maintaining them and is maintaining a claim which is highly arguable.

The claim was filed on 30 May 2013, 8 days out of time if the appropriate time period was 3 months after the relevant decision was made so that the resulting end date for filing was 22 May 2013. However, CPR 54.5(1) provides that a judicial review claim should be filed as soon as reasonably possible after the decision being impugned was taken with a long-stop period of 3 months from the date of that decision. ECC contends that the claim could and should have been filed well before the 22 May 2013. Mr Naylor has applied for an extension of time until 30 May 2013.

Mr Naylor has supported his claim with a detailed application for an extension of time supported by evidence which was filed with the claim form which has been responded to in the summary grounds of defence. Mr Naylor’s application and ECC’s response may be summarised as follows:

Given the new information that Mr Naylor had obtained and its possible impact on the decision ECC had taken, he acted correctly in re-submitting a pre-action protocol letter on 22 April 2013. He was seeking, in that letter, a fresh decision or a reconsideration of the earlier decision in relation to the MLG application. This pre-action protocol letter, given its request for a fresh decision, effectively started time running again since it was challenging ECC’s apparently erroneous decision that it did not have the power to reconsider, review or correct its earlier decision even if it had been taken on mistaken or erroneous grounds. Although it is arguable that ECC did not have the relevant power to take any of these courses of action, there are good grounds for contending that it did have the power to take at least one of them if it had mistakenly refused the registration application by its decision dated 22 February 2013. There are also good grounds for contending that the earlier decision was mistaken.

Discussion and conclusion. There are two separate but closely related reasons why time should be extended in this case. Firstly, Mr Naylor has provided good reasons for not filing his claim within the 3-month period permitted and also for the short delay outside the 3-month period that actually occurred. Secondly, he has provided good reasons for seeking to judicially review ECC’s decision to refuse even to consider reviewing, reconsidering or correcting the earlier decision on the grounds that it was wrong of it to exclude a fresh look at an arguably incorrect decision. The claim relating to that second decision is clearly in time. If that claim goes forward, it would be most unfair if the related earlier claim was shut out.

Thus, time will be extended both because it is appropriate to extend time to 29 May 2013 and because Mr Naylor should be granted permission to challenge the related refusal decision of 13 May 2013. I therefore grant Mr Naylor an extension of time for filing his claim until 29 May 2013.

The scope of ground 1. Ground 1 may be summarised as follows:

“Did ECC in deciding, and the inspector in advising, that the use of Mill Lane Green for lawful sports and pastimes was “by right” and not “as of right” err in law or fail to take into account relevant and potentially significant facts and matters?”

This issue arises out of the registration requirement in section 15(1) of the CA that the relevant user of MLG by local or neighbourhood users was a user as of right. This concept is drawn from the common law relating to the acquisition of prescriptive rights. These can only be acquired from a landowner who has not granted the relevant right, usually an easement or right of way but it has nonetheless been used for an appreciable period of time. In such circumstances, once the prescription period has been exceeded, the unauthorised user is turned into a lawful user which is to be treated as if the user had been the subject of a grant by the relevant landowner. In such circumstances, the use giving rise to the prescriptive right must have been use without permission, force or secrecy in order to qualify for prescription. In other words, the use must have been open even if not known about by the landowner, carried out without any forceful entry, picking of locks or other similar behaviour and not expressly authorised or permitted by the landowner. That background explains why a use founding an entitlement to use an area of open ground as a town or village green must be “as of right”, that is without permission but carried on as if permission had in fact been granted.

The issue here is whether the inspector was correct in law in concluding that the evidence showed or was to be presumed to have shown that the use of MLG for sports and recreations was not as of right – i.e. was unauthorised and open - but was by right – i.e. was expressly authorised or permitted pursuant to a trust set up by the landowner that was controlled and managed by WNUDC and then TDC pursuant to a statutory trust. The usual situation where the use has been held to be by right is where the site is being controlled and managed by a local authority under section 10 of the Open Spaces Act. In such a situation, although the site cannot be registered as a town or village green, its continued use for sporting or recreational purposes has been and will continue in the future to be protected by the statutory trust by which its public use was being controlled and managed.

Summary of the law. The law relating to the “as of right” test has been considered in 3 decisions of the House of Lords, 1 of the Supreme Court and at least one further decision in each of the Court of Appeal and the Administrative Court since 2000 (Footnote: ⁴). All of the cases are referred to by the inspector in his report, by Mr Naylor in his claim documents and by the ECC in its summary grounds of defence. They have all involved land (1) that was owned by a public authority (2) whose use was available for public use as a result of statutory powers and (3) which was controlled and maintained pursuant to section 10 of the Open Spaces Act.

The present case is one involving land in private ownership in contradistinction to land in public ownership or that is derelict and unoccupied and hence with no discernible ownership. MLG could only have been subject to a section 10 statutory trust if it was an open space or a public walk or pleasure ground and had been placed under the control of TDC or one of its predecessors by the owner of the site. A private owner of land can only turn the land into an open space or public walk or pleasure ground if the site is made over for public use without limit of time. This can only be achieved if the site is made the subject of a trust which provides for that public use and, since the subject-matter of the trust related to land, it would only be enforceable if it was evidenced in writing (section 53(1)(b) of the Law of Property Act 1925).

It would have been possible for the owner of MLG to have set up the trust that imposed the site as an open space and to have agreed with the local authority that it would control that open space in the same trust deed but two separate steps were still required: (1) the giving over of the site to the public as an open space or a public pleasure ground and (2) the handing over of the control of the open space or pleasure ground that had been created to the local authority.

Once the site had been made over to the public as an open space, the site could only cease to be an open space and the statutory trust created by section 10 of the Open Spaces Act could only be terminated if the land ceased to be capable of use for sports and recreations or if the relevant trusts were brought to an end by court order and the agreement of the Charity Commission – since the trusts would be public charitable trusts.

The inspector’s report. The following are the relevant paragraphs of the inspector’s report which were accepted and adopted by the ECC and formed the basis of its decision to refuse registration that the relevant use was “by right” and not “as of right”. I have highlighted the critical passages in bold:

“9.108

… Mrs Pudney (Footnote: ⁵) agreed that this site in the past, before the Council gave up maintaining it, had been a regularly well mown site. She confirmed that her family did not acquire it until 2009. Before that it was a well tended site. She had never actually seen anyone mowing it, but it was well tended. But then, after her family’s company had taken over, about a year ago she started to write to the District Council to find out why they were doing this work. There was correspondence with Tendring District Council in the documentary material which the Objector had produced, including in particular a letter from the Horticultural and Transport Services Manager of the District Council dated 8th December 2011. However she or her company had not really managed to obtain further information from the District Council than what was shown there. She added that she believed that Tendring District Council had done the mowing of the ground of the application site, during the period when they undertook it, by agreement but she had not managed to obtain a copy of that agreement. The only information in writing which had been obtained from Tendring District Council was the letter from Mr Mills of that Council dated 8th December 2011. That had confirmed that the District Council had maintained the area of the application site for the previous 22 years. The maintenance of the area had formed part of the Frinton and Walton Grounds Maintenance Contract, which had first been let under compulsory competitive tendering in 1990. The only maintenance that had been carried out on the land had been grass cutting. Mr Mills in that letter had been unable to confirm any maintenance operations prior to 1989. Mr Mills of the District Council had said that he had no knowledge of the statutory powers exercised by TDC, as he had not been party to the formulation of the tender documents.

…

11.49

The question therefore logically arises as to what was the basis on which Tendring District Council were mowing and maintaining this land for all of those years, including effectively the whole of the relevant years for present purposes, as something which looked like, and was de facto available as, a piece of public open space or park land, or indeed a town or village green.

11.50.

It is somewhat unfortunate that Tendring District Council did not provide any evidence or information aimed directly at the matters of relevance and concern to the present determination. This was not for want of trying on the part of the parties, both of whom tried (and succeeded to a limited extent) to obtain relevant information from the Council. In the case of the Applicant the information obtained was from telephone conversations which Mrs Hatwell had been able to have with two different officers of the District Council. In the case of the Objector almost the only information obtained was in a letter of 8^th December 2011 from one of the two gentlemen (Mr Trevor Mills) who Mrs Hatwell had been able to speak to.

11.51.

Fortunately the information obtained via both these routes was mutually consistent, and none of it was disputed between the parties. It seems clear that the District Council have maintained the land, by regularly mowing it, since at least 1989/90, and probable that there had been a much longer term arrangement, going back to before 1974. It also seems clear, and uncontroversial, that the Council first erected a dog bin on the land in 1998, and replaced it with a new one in 2007. It appears to be undisputed that the Council regularly picked litter from the land.

11.52.

Why did the Council do those things? It seems clear that this was not the result of some mistaken belief on the Council’s behalf that it owned the site (and in any event no-one suggested this explanation). I appreciate that this was a difficult area of the case for the Applicant (without legal representation) to deal with. However in my view Counsel for the Objector (Mr Cosgrove) was right in arguing that the District Council – itself a ‘creature of statute’, as the courts like to say – must be assumed, unless there is clear contrary evidence, to have been doing these things properly and lawfully, in pursuance of some statutory power enabling it to do so.

11.53.

The Inquiry’s attention was drawn to the powers in Section 9 of the Open Spaces Act 1906, which enable Councils to “undertake the entire or partial care, management and control” of areas of open space, even when the Council does not own them. It is then clear from Section 10 of the same Act that the Council, having acquired control (or some higher interest), holds and administers the land concerned “in trust to allow, and with a view to, the enjoyment thereof by the public as open space ... .” I have to say that, on the face of it, these statutory powers and duties do seem very apt to provide an explanation for the circumstances which occurred at Mill Lane, Walton.

11.54.

The Inquiry’s attention was also drawn to words in Section 164 of the Public Health Act 1875, which provide for an authority to:

"purchase or take on lease lay out plant improve and maintain lands for the purpose of being used as public walks or pleasure grounds, and may support or contribute to the support of public walks or pleasure grounds provided by any person whomsoever.”

The provision goes on to allow the authority to “make byelaws for the regulation of any such public walk or pleasure ground...” It is clearly arguable, in my view, that this power also is relevant as an alternative, or in addition to the powers under the Open Spaces Act 1906, as an explanation and justification for the actions, over a prolonged period, of the District Council in relation to the management and maintenance of this land.

11.55.

It is clear, not least from the recent case of Barkas, which I have referred to above, that where a local authority provides land for public use under either of the 1906 or 1875 Acts just referred to, use of that land by the (local) public will be ‘by right’ not ‘as of right’.

11.56.

In my judgment it is also clear that that same principle must apply to land belonging to someone else, which is managed or controlled by a Council under section 9 of the 1906 Act, or ‘supported’ as a ‘public walk or pleasure ground’ under the 1875 Act.

11.57.

It is unfortunate that there was not more ‘input’ from, or investigation by, the District Council as to the precise formal basis on which it had come to maintain and manage this land over so many years. It is however my understanding of the law in this field that it is proper for the Registration Authority (and thus me), where the precise legal basis for historic actions cannot be traced, to reach its decision on the basis of the most probable lawful explanation or justification for the actions concerned.

11.58.

On this basis, the view I have reached on the evidence available is that the most probable explanation of the situation which prevailed here is that Tendring District Council managed and controlled the land under the provisions I have referred to under the Open Spaces Act 1906, but fortified by their ability to do much the same thing under Section 164 of the Public Health Act 1875. I reach this conclusion the more readily, given the absence of any alternative suggestion or argument from the Applicant as to the legal basis for the District Council’s actions.

11.59.

It follows therefore, in my judgment, that use of this land for recreational purposes by local people, or indeed anybody else, over all of the relevant years, was ‘by right’, not ‘as of right’. The Applicant’s claim must therefore fail on this ground.” (Footnote: ⁶)

In summary therefore, the inspector’s advice was:

Discussion. Ground 1 involves a consideration of the following issues:

The decision-maker had to decide what the nature of the use of MLG was. This involved considering a spectrum of use that is notionally divided into three sectors: use by right, use as of right and use that was by force, secret and prohibited. This is a very difficult consideration since it involves both a positive consideration of whether the relevant sector has been shown to exist and also two negative considerations as to whether the other two sectors have been shown not to exist or as not being capable of existing in the particular factual situation under consideration and, where necessary, balancing competing considerations and reaching a conclusion. That does not strictly involve the use of a balance of probabilities test a looser test involving a consideration as to whether the decision-maker is satisfied that the use was as of right. Since a user “by right” has been found to include a user pursuant to a statutory trust set up by section 10 of the Open Spaces Act, where that possibility exists, the decision-maker must consider whether a section 10 trust exists and, where the site is owned privately, whether an underlying trust setting up the open space exists. That in turn involves a consideration of whether the relevant use was nonetheless by right even if there is no evidence of the existence of the relevant trust or trusts including a consideration of whether the relevant local authority was in control of the site and was maintaining the site in the exercise of that control.

In short, in the MLG case, it is arguable that the decision-maker had to apply a composite test along these lines:

The test, or line of reasoning adopted by the inspector arguably failed to take all these considerations into account and instead concentrated unduly on his perceived need to find a lawful basis for TDC’s activities on the site irrespective of whether there was any supporting evidence for the necessary underlying trusts and control needed to support the lawful section 10 basis he was considering.

At Harwich Green, the advice given to the committee was that TDC’s predecessor authority had purchased the site in question from the War Department subject to an obligation to keep it “for ever hereafter as a Public Recreation Ground and open space”. Many years later, the Harwich Society applied to register part of the site as a town or village green. TDC had no objection to that application although it did not expressly agree to it. The committee was advised that the user subject to the obligation imposed when TDC acquired the site was “by right” since that was the nature of its public use unless and until it appropriated the land for some other statutory purpose. It nonetheless registered the application site as a town or village green, perhaps in the mistaken belief that TDC could consent to that registration despite its statutory duty to maintain the site as a “by right” use or that its statutory powers entitled it to reappropriate the land for use as a town and village green since such a use was not inconsistent with its use as required by the original undertaking.

This decision is said by ECC to have no relevance to the earlier MLG decision because it was owned by the local authority and was clearly subject to a section 10 statutory trust as a result of the provisions of the Public Health Act and moreover it post-dated the MLG decision. For the reasons already set out, it may or may not have been justified in law to register the site given that it was subject to a section 10 trust. These points are well-made.

However, the County Solicitor’s advice to the committee contained this illuminating passage:

“… local inhabitants can be said to have a statutory right to use land [which the local authority owns] which is made available to the public for the purpose of lawful sports and pastimes by a local authority under a public law duty to use the land for the sports and pastimes until such time as it formally appropriates it to some other statutory purpose. This is a significant difference in the position of a private landowner who may be subject to planning controls, change the use of their land at will (Footnote: ⁷). To bring the “by right” use to an end the local authority would have to appropriate it to another purpose inconsistent with those rights.”

The Harwich Green advice was that a private landowner – such as existed at MLG – had the right to bring the use of their land for sports and recreations to an end at will (so that its prior use for sports and pastimes would have been “as of right”) yet in the MLG case, the effect of the advice was that the private landowner did not have the power to change the MLG use at will because it was to be presumed to be subject to an open space trust (and hence the same use was “by right”). This apparently contradictory advice by the same legal adviser to the same committee on two occasions 7 weeks apart suggests that thought was not given to this aspect of the test in the MLG case and that a possible error of law occurred when reaching the refusal decision.

Factual conclusions. The relevant findings of fact to be found in the inspector’s report include these:

Conveyancing history. The following actions give some indication as to whether the site was subject to an open space or statutory trust.

TDC is said to have considered exercising compulsory purchase powers to acquire the site in the 1990s which it did not pursue on financial grounds and subsequently to have attempted to register title to the site based on its alleged squatter’s title which was itself based on TDC’s acts of mowing, picking and dog-refuse removal. It is said that the land registrar declined to register title on the grounds that those acts were not sufficient acts of possession to enable TDC to acquire possessory title. ECC contended correctly that the inspector cannot be faulted in not considering these matters since they were not brought to his attention but there is evidence of them and, if that evidence is accepted, these two acts by TDC are inconsistent with, albeit not fatal to, its then being trustee of an open space trust since there would appear to be no useful purpose being served in compulsorily purchasing the site given the control over the site and its public use that it would already have had.

Silverbrook. Silverbrook appears to have acted both before and after its acquisition of the site in ways inconsistent with the site being the subject of an open space and statutory trust creating a right to the public to use the site for sports and recreations.

Firstly, before it acquired the site it or its conveyancing solicitor would have submitted searches and enquiries before contract to, respectively, TDC and Mr Carter’s executors. The existence of the open space trust, which would have been evidenced in writing and which would be expected to be lodged with the deeds, is likely to have been revealed by the enquiries and the statutory trust is likely to have been revealed by TDC’s answers to the searches made of TDC. Even if the trust deed or deeds was or were lost, it would have been known within TDC that the Maintenance Contract was being performed pursuant to TDC’s obligations under a statutory trust if such existed and, if known about, the statutory trust would have been brought to Silverbrook’s attention during the searches procedures. The absence of any such disclosure by Silverbrook in the inquiry suggests that no document exists that refers to a statutory trust. If no document exists, that absence is highly relevant to a determination as to whether a trust should be presumed.

Secondly, Silverbrook applied for outline planning permission in 2011 which has been granted. The use that would arise from implementation of that planning permission would be wholly inconsistent with and would preclude use of the site by local inhabitants for sports and pastimes. These actions in applying for and granting planning permission indicate that neither the current owner nor the relevant local authority consider or have knowledge of an open space trust or a statutory trust.

Thirdly, TDC swiftly agreed to cease maintenance in 2011. Had there been a statutory trust in existence, TDC would not have been entitled to cease such work since it would have had a statutory duty to control and maintain the site, a duty it would undoubtedly have known about had it existed. ECC’s counsel contended that this swift acceptance by TDC that it had to cease maintenance work, and indeed Silverbrook’s seeking to terminate that work, are not evidence that either Silverbrook or TDC considered that there was no statutory trust in place. His explanation was that these actions were consistent with there being a statutory trust and had been taken since “[TDC] were not able to evince a formal arrangement with the landowner which would allow it to continue to exercise its statutory powers.” This explanation makes no factual or legal sense. If there was a statutory trust in existence, there was no formal arrangement still to be made, TDC could and should have carried on as it had done for nearly 22 years. Meanwhile, TDC’s maintenance obligations continued unabated and because these would have been enshrined in a statutory trust which it was the trustee of, it had a continuing obligation which could not be terminated or interfered with by Silverbrook to keep the site open, mowed, picked and dog-littered. If a formal arrangement was necessary but could not be evinced, the inspector could not reasonably have concluded that those statutory powers nonetheless existed since any failure to evince the necessary formal arrangements would mean that the existence of the trust could not be established. Indeed, the converse is the case since the actions of both Silverbrook and TDC, being contrary to and forbidden by the statutory trust if it existed, are good evidence that there was no such trust in existence. In short, both Silverbrook’s and TDC’s actions point to the user being “as of right” rather than “by right”.

Fourthly, Silverbrook applied for a lawful use certificate in 2013 in relation to the erection of a tall exclusionary fence around the perimeter of the MLG. This fence is installed on TDC land adjacent to Mill Lane. TDC refused that application but the fence remains in place and a sign erected by Silverbrook on the site informs the public that the site is private land which they are not entitled to enter. These actions appear to demonstrate that Silverbrook is of the view that there is no open space trust or statutory trust in existence since their actions are contrary to their duty as landowner to use the land in a ways that do not interfere with the public’s user rights of the site. Similarly, TDC’s actions are corroborative of its apparent view that the use was as of right.

Conclusion. All these facts point strongly to the conclusion that the site has been used as a town and village green and that that use started sometime in the 1950s and that the acts of maintenance on the site were informal and non-statutory acts within the power of TDC but not subject to a statutory trust. Further, there is good evidence that suggests that neither an open space nor a statutory trust was ever created. It is therefore highly arguable that the inspector and ECC’s decision to refuse to register MLG was Wednesbury unreasonable.

A local authority may only acquire control over a site so as to create a statutory trust if that site is an open space. MLG could not have been an open space unless it had been set up as such by Mr Carter its owner in the period between 1954 and the mid-1970s in a trust evidenced in writing. The inspector presumed the existence of an open space since it was “something which looked like, and was de facto available as, a piece of public open space or park land”. It is arguable that that conclusion was both Wednesbury unreasonable and erroneous in law.

An open space statutory trust is only created where a local authority acquires any estate or interest in a site (which is not the case with MLG) or control over the site. It is not sufficient for it to have limited powers to mow and pick, albeit that such powers are included in the more general powers of control (see section 10). It is highly arguable that there is no evidence that TDC exercised any power of control, the evidence merely evidences the exercise of limited maintenance through a public works ground maintenance contract across a number of sites in an area that included MLG. Thus, it is arguable that there is insufficient evidence to ground a presumption that a statutory trust came into existence.

If TDC was administering control over MLG in a statutory trust whose objects included all those set out in section 10, it seems most unlikely that its activities would have been confined to limited occasional mowing in season, picking of litter and removal of dog-waste. Equally, it seems most unlikely that a statutory trust existed since there was apparently no knowledge or relevant documentation that TDC could supply relating to this statutory trust despite being asked for it by both the applicant to the application and a senior officer of Silverbrook. This is again good evidence that needed to be taken account of that no statutory trust was ever created.

The mowing and delittering activities were apparently carried out over a rolling publicly tendered ground maintenance contract covering a number of sites within the area of TDC. That contract had its origins in similar work undertaken by WNUDC and the work appears to have been done with Mr Carter’s agreement or acquiescence but without the backing of an open space trust or statutory trust. No reason has been given why such activities would have been unlawful when carried out for TDC unless carried out under a statutory trust and, without a cogent argument to support that proposition, the contrary would seem to be the case. It is, therefore, highly arguable that TDC was carrying out this work lawfully but without the backing of a statutory trust.

Even if TDC’s MLG work could only have been carried out lawfully if carried out under the aegis of a statutory trust, there is no basis for a presumption that the work was carried out lawfully under such a trust if there are good reasons why such a trust could not have been lawfully established. It is highly arguable that there could not have been a statutory trust so that, if the maintenance work was otherwise unlawful, the response should have been “so be it”.

No authority was cited by the inspector to support his conclusion that he had to conclude that the work must have been carried out pursuant to the most probable lawful explanation for such work. It is, or may well have been, the case that the work was being carried out lawfully but, if so, the facts arguably showed that the most probable explanation was that Mr Carter had agreed with TDC to undertake the work pursuant to its ground maintenance work. However, if that was not so, it is highly arguable that the presumption of lawfulness leading to the presumption of the existence of an open space contract did not apply in this case given the impossibility or highly unlikely possibility that an open space trust had been created.

For the reasons already given, the inspector’s advice and ECC’s decision in the MLG case appears to be inconsistent with its Harwich Green decision taken 7 weeks later following advice from the same solicitor who advised in the earlier decision. Furthermore, there is a good case for concluding that the advice as to a private landowner’s ability to decide to terminate public use of the site at will is correct in the absence of an open space trust so that if a private landowner acts in this way, as Silverbrook did, there is good reason to conclude that there is no statutory trust in existence. In short, the Harwich Green advice given by ECC’s Solicitor highlights a real possibility that the contrary advice given in the MLG decision-making process was in error and that that earlier decision was mistaken in law.

The scope of ground 2. Ground 2 may be summarised as follows:

“Was the requirement that the relevant use must have been an uninterrupted use for the 20-year period ending with the date of the application on 11 April 2011 satisfied and, if not, was it possible to disregard the period of non-public use between 14 June 1993 and a date about 3 months later?”

This gives rise to two issues:

(1)

Was the period of the works of about 3 months such as to interrupt the 20-year period and to set it running afresh?

(2)

If the period was interrupted, was the interruption to be disregarded as being a period during which access was prohibited by reason of any enactment?”

The relevant passages of the inspector’s report are as follows;

“7.81

His (Footnote: ⁹) recollection was that Costain Building and Civil Engineering Limited won a contract let by the National Rivers Authority to carry out flood defence works which involved increasing the height of the sea wall, which had been originally built after the 1953 floods. This sea wall forms one side of the grass triangle known as MLG, the other sides being the Fleet and Mill Lane. It is of course the sea wall which together with the Green forms the subject of the present application. The work commenced on 14^th June 1993. He can confirm that his wife encouraged their son William to take photographs of the works and associated plant, materials and equipment. Mr Bates produced a number of photographs which had been taken in that way. The photographs showed various aspects of the work, and the site while the work was going on.

7.82.

Mr Bates confirmed that his son had had free access to the site during pauses while that work was going on. Some other photographs which he produced showed games going on the land on another occasion (not during the works).

7.83.

The family game of cricket which he had referred to was looked forward to almost every year. The grass was always well cut so it was possible to play such games. It was also the case that Mr Alan Frazer, the local butcher used regularly to play football there every Saturday with his grandson towards the southern end of the land. Of course that was in good weather.

7.84.

The photographs that Mr Bates produced, other than his son’s civil engineering photographs, had been taken by various family members on different occasions. Indeed one of the photographs was of some strangers having a picnic on the land who the Bates family had got friendly with. Apart from the Bates family and Mr Frazer with his grandson he could not recall other families having organised games on the land, but he distinctly recalls people walking dogs on the triangular area of the land for example.

7.85.

In cross-examination Mr Bates explained that a notice about the proposed flood defence works (a copy of which he produced to the Inquiry) sent by the Costain engineering firm came through his own front door in June 1993. The sheet piling aspect of the work did indeed cause vibrations to his and neighbours houses. The work lasted for several months in 1993. The notice from Costains had told people to keep clear of the area of the works. His son who had taken the photographs in 1993 was aged 23 at that time. Mr Bates acknowledged that the photographs showed that some of the works which were undertaken in the summer of 1993 impacted on the grassy triangular part of the application site. While those works were going on, you could not go on there and play cricket for example. So there was to that extent an interruption to use of the land. Mr Bates said he did not know exactly when in the summer of 1993 his son had taken the photographs; he agreed that one would not want young people going on the land while those works were going on.

…

11.63

Although there was not complete agreement between the parties about this by the time of closing submissions, I formed the view on the balance of probabilities from all the evidence (including much from the Applicant’s side) that the works probably took about 3 months. They may have had some element of being phased, but the evidence was unclear about that.

11.64.

What was clear, from photographic evidence produced from the Applicant’s side, is that the works were very extensive, and that for at least some of the total time they were affecting the great bulk of the site all at the same time. By that I mean that they were affecting, in a major way, the whole of that part of the site constituting the present sea bank, and also a substantial part of the ‘grassy triangle’. I accept that, from the photographs produced by the Applicant’s side, it does appear that some part of the triangle might not have been affected by the works. However it is completely unclear how much of that grassy triangle might have been left unaffected during the works, and no view or evidence was put forward on behalf of the Applicant as to the definition of any such unaffected area. That some of the grassy triangle was affected by the works was also confirmed by the one aerial photograph from Summer 1993 put forward by Ms Cox for the Objector.

11.65.

I accept the point made on behalf of the Applicant that it may well have been possible, and probably was, at times when the workmen were not actively carrying out the physical works, for members of the public interested in that sort of thing to wander on to the site of the works and look at them. Mr Bates junior obviously did just that, and took several photographs to record the fact.

11.66.

However I cannot accept on the evidence presented that during the period of those works the site was available for local people to use it for lawful sports and pastimes, as of right. This was a substantial interruption to use in my view, not something that can reasonably be regarded as ‘de minimis’, or so temporary as to be of no significance.

11.67.

As I have acknowledged above, it seems there may well have been some part of the grassy triangle which was unaffected by the works. However it was not at all clear to me what area that was, and the Applicant did not propose that any particular view should be taken on that question. It is for the Applicant to make his or her case on applications such as this, and then to support it with evidence which proves it on the balance of probability. In this case therefore it is not appropriate that I should even speculate as to whether (hypothetically) a case could be made for an uninterrupted 20 year use on some lesser part of the ‘grassy triangle’’.

11.68.

My conclusion on this point therefore is that the evidence does not show that there was a continuous uninterrupted use of the application site for lawful sports and pastimes for the requisite period of 20 years.” (Footnote: ¹⁰)

Summary of findings. The relevant findings may be summarised as follows:

The works and the statutory basis for the works. The works were very extensive, and involved significant piling and other heavy engineering work and for at least three months these works were affecting the great bulk of the site. Although the inspector did not describe the works that were carried out on MLG in detail, he was shown photographs of the works taken at the time that they had been carried out and since MLG was restored to its original state once the works were completed, these works must have been temporary works undertaken in connection with the permanent sea wall heightening works. These temporary works had to be carried out on MLG close to the permanent works and were additionally necessary to enable access to be obtained to the permanent works. The temporary works would have included the provision of storage facilities, work cabins, toilets and a place where heavy engineering equipment could be operated, maintained and stored or parked. It is clear that these works were carried out by Costain, the national and international engineering contractor and that the employer with whom Costain contracted was the NRA whose functions were transferred to the Environment Agency (“EA”) some two years after this work was carried out.

The work carried out to the sea wall adjacent to the MLG was carried out under the same legislation as is now operated by the EA but under the control and direction of the NRA which ceased to function once the EA was established. Since the work was carried out on private land, it had to be undertaken pursuant to statutory compulsory powers. The primary legislation for sea defence work of this kind is contained in the Coast Protection Act 1949 and the relevant section 6 is as follows:

“6 Power to make schemes for carrying out work

(1)

Where a coast protection authority propose that coast protection work (not being work of maintenance or repair) should be carried out on any land and it appears to the authority-

(a)

that the work cannot be carried out except in the exercise of compulsory powers, .

the authority may prepare a scheme (hereinafter referred to as a “works scheme”) for the carrying out of the work.

(2)

The works scheme shall-

(a)

…

(b)

Specify the work (if any) to be carried out on land not so vested or proposed to be acquired;

(3)

A works scheme shall not have effect unless confirmed by the Minister in accordance with the following provisions of this Act.”

It is relevant to compare these provisions with statutory provisions that enable movement controlling orders to be made so as to prevent the use or movement within defined areas so as to prevent, control or eradicate foot-and-mouth disease. This is undertaken by orders made under the Animal Health Act 1981. Section 23 of that Act states in part:

“23.

Orders as to infected places and areas

The Ministers may make such orders as they think fit for all or any of the following purposes:

(a)

for prescribing and regulating the publication of placards, handbills or otherwise in the immediate neighbourhood of a place or area declared infected, of the fact of such declaration;

(b)

for prohibiting or regulating the movement of animals and persons into, within, or out of an infected place or area;

(c)

for prohibiting or regulating the isolation or separation of animals being in an infected place or area;

(d)

for prohibiting or reglating the removal of carcases, fodder, litter, utensils, pens, hurdles, dung or other things into, within, or out of an infected place or area; … .”

The works scheme prepared for these works would have identified MLG as the site of some of the permanent works and as the site of temporary works including storage, pile construction, a working compound, the location of plant and machinery and other works. The civil engineering contract with Costain would have provided that Costain had exclusive possession of the site of the works and the public would have been excluded from that site for protection, security and to prevent interference or interruption of that work. The details of when, by what means and over what areas Mr Carter’s land would be compulsorily taken over by the NRA and by which the public would be excluded from and denied entry to the site would have been set out in the works scheme that was confirmed by the Minister. The scheme would have authorised Costain to fence off and exclude the public from MLG. This occurred and the inspector records evidence he received that local inhabitants had pushed through their front door by Costain a notice prepared by Costain which explained what work was to be carried out, that it was to be carried out over the entire MLG site as well as over the existing sea defence walls and it told the public in mandatory terms that they were to keep clear of the area of the works. A copy of that notice had been kept by one of the witnesses who produced a copy to the inspector at the inquiry.

The inspector’s advice. The inspector advised that the interruption of about 3 months in the public’s user of MLG was not de minimis or so temporary as to be of no significance. It was, therefore, a substantial interruption and it broke the relevant 20 year period so that the application failed.

Discussion. It is arguable that the inspector applied the wrong test in law to determine whether the 3-month period in question interrupted the 20-year period factually. If it did not interrupt it in this way, there would be no need to consider the statutory disregard provision in section 15(6) of the CA. Since the town or village green regime has its origins in the acquisition of a prescriptive right which requires an uninterrupted period of use to be acquired, it is relevant to consider authorities relating to this issue that deal with the interruption of the 20-year period.

The inspector’s approach was to consider whether the 3-month period was de minimis or minimal and to simply ask himself whether a 3-month period was minimal. He understandably answered that question that he had asked himself in the negative. However, the law of prescription requires a 20-year user period by statute for the acquisition of property rights such as easements and rights of way and, most recently a right to carry out activities such as making a noise or emitting smells which constitute a nuisance. In Coventry v Lawrence (Footnote: ¹¹), the Supreme Court handed down judgments on 26 February 2014 and in the leading judgment by Lord Neuberger P, the question of interruption of the 20-year period was discussed as part of a wide-ranging judgment concerning noise nuisance. Lord Neuberger said this:

“31.

The essential feature of prescription for present purposes is that, in order to establish a right by prescription, a person must show at least 20 years uninterrupted enjoyment as of right, that is nec vi, nec clam, nec precario (“not by force, nor stealth, nor with the licence of the owner”), as Lord Walker put it in R (Lewis) v Redcar and Cleveland Borough Council [2010] 2 AC 70, para 20), of that which he now claims to be entitled to enjoy by right.

32.

An issue in the present appeal is whether the right to commit a nuisance by noise can be acquired by prescription. …

36.

As that discussion suggests, there appear to be three possible problems with the notion that such a right could be obtained by prescription. The first is that the 20 years can only run when the noise amounts to a nuisance. As Thesiger LJ giving the judgment of the Court of Appeal, agreeing with Sir George Jessel MR, put it in Sturges at 11 Ch D 852, 863-864, “[c]onsent or acquiescence of the owner of the servient tenement lies at the root of prescription, and … an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence.” So, during such time as the noise is at such a level that it does not amount to a nuisance, time will not run: while it is not a nuisance there can be no question of the claimant being able to stop it. Secondly, there could obviously be difficulties in identifying the extent of

the easement obtained by prescription: even if the level of noise can be shown to have amounted to a nuisance for more than 20 years, it will often have varied in intensity and frequency (in the sense of both timing and pitch). … .”

37.

In my view, these problems should not stand in the way of a continuing nuisance by noise being able to give rise to a prescriptive right to transmit sound waves over servient land. The first two problems are, at least largely, practical in nature, and could often present the owner of the alleged dominant land with difficulties in making out his case, but that is not a good reason for holding that he should not be entitled to do so on appropriate facts. Further, the extent of the two problems is mitigated by the fact that, to justify a prescriptive right, the 20 years use does not have to be continuous: see Carr v Foster (1842) 3 QB 581, 586-588, per Lord Denman CJ, and Patteson and Williams JJ. It is worth noting that Patteson J was prepared to accept that an interruption of even seven years might not destroy the claim to have acquired a right by prescription over 20 years.” (Footnote: ¹²)

It is, therefore, arguable that the inspector applied the wrong test when determining whether the interruption was sufficient to stop the acquisition of a 20-year period. Arguably, it is necessary to identify the nature of the interruption, its purpose and effect, the nature of the user being carried out, the nature of the site and its surroundings and the length of time that the user has been undertaken and, balancing all these factors, consider whether that particular interruption in that location at that time and in those circumstances would objectively be regarded as part of the site’s use or as an interruption in that use which, for the time in question, stopped that use which could only recommence as a new user. It is to be noted that in Coventry, the relevant use was various forms of stock car and similar uses on a limited number of days in the year and that use was not considered to be interrupted. Similarly, in the early Victorian case of Carr, a 7-year period of interruption was not considered to be fatal. These cases are relevant as showing that the period of interruption to a prescriptive period such as required to acquire registration rights to a town or village green is usually to be assessed by reference to all relevant factors and not by determining whether the interruption period in length or extent is de minimis.

In this case, the use had been for many years, the site had been made useable for sports and pastimes by the erection of sea wall defences which inevitably require extensive re-engineering every few decades and the site had to be used if such work was to be carried out. It would appear at least arguable that the 3-month period in question was not one which constituted an interruption of a kind which stopped the 20-year prescriptive period running in this case.

The inspector did not consider whether the proviso to section 15(6) of the CA applied so that the 3-month period should be disregarded because it was a period during which access to the land was prohibited to members of the public “by reason of any enactment”. Mr Naylor contended that this provision was applicable to the 3-month period, Mr Evans on behalf of ECC contended that it did not for these reasons:

“The crucial question on the issue of interruption is whether a situation where access to land is unavailable to members of the public by reason of the carrying out of the works on the land under statutory authority in section 15(6) of the CA which applies where access is prohibited by reason of any enactment. The defendant submits that it plainly does not and that the contrary is not arguable. Section 15(6) is directed at “statutory closures”: see Hansard, House of Lords 28^th November 2005, column 43. Matters are expressed (correctly, it is submitted) in the following way in paragraph 8.10.61 of DEFRA’s “Guidance to commons registration authorities and the Planning Inspectorate for the pioneer implementation: “any periods of statutory closure of land must be left out of account when considering whether the twenty years’ use criterion has been satisfied. Statutory closure occurs where access to the land was forbidden because of special restrictions imposed by a local authority or Government. An example of this might be where the area of land was closed by order during an outbreak of foot-and-mouth disease.” The present case is not even arguably one of a statutory closure as so understood.”

This submission carries forward this passage in ECC’s summary grounds of defence which contended that:

“[Mr Naylor’s] reliance on the statutory disregard (in section 15(6) of the 2006 Act) of any period during which access to the land was prohibited to members of the public by reason of any enactment is misplaced. That provision relates to situations where an enactment specifically imposes or empowers the prohibition of access, such as a statutory closure of land in response to an outbreak of foot-and-mouth disease, and does not apply more widely to encompass the present case (in which flood defence works were carried out by the Environment Agency) (sic).”

Discussion. It is important to have the words of section 15(6) in mind and to appreciate that ministerial words of explanation found in Hansard are inadmissible as aids to construction and that the wording of DEFRA guidance is of only tangential significance in that exercise. The words of the statute apply to situations were “access to the land was prohibited to members of the public by reason of any enactment”. In this case, access to the land was prohibited to members of the public as Costain’s leaflet distributed to the neighbourhood made clear and as would have been set out in the works scheme made under section 6 of the Coast Protection Act 1949 as confirmed by the minister under that Act. There is no distinction in principle between that situation and the situation arising during the foot-and-mouth outbreak when an order prohibiting access to a farm or field was made under section 23 of the Animals Health Act 1981 and an order made thereunder. Thus, in each case, the closure occurred as a result of an enactment, being a primary Act and an order made under it, the closure did not occur by reason of the carrying out of work on land (in this case) or by reason of foot-and-mouth infection (in the DEFRA Guidance example).

Conclusion. It follows that it is arguable that the period of closure or of lack of access to MLG is to be disregarded because it is not an interruption for prescription purposes and/or because it is a statutory closure to be disregarded in arriving at the appropriate user period.

This ground may be stated as follows:

“Did the inspector in undertaking the inquiry and ECC in considering and deciding the application adopt a fair procedure and give the applicant a fair opportunity of presenting the applicant’s case in relation to the “as of right” and “interruption” issues?”

This ground only arises if Mr Naylor fails on either or both of the first two grounds. In that event, he challenges the procedure that was adopted by the inspector in dealing with the “as of right” and interruption issues.

The inspector and the inquiry. The inspector was conducting a non-statutory, non-binding inquiry into the application followed by a report with a recommendation to ECC which it was free to accept or reject. The purpose of the inquiry was to gather all necessary evidence for use in the decision-making process so that it had a major significance in the decision that was finally reached. The applicant was represented at the hearing by a lay advocate whose experience and expertise was limited. The objector, Silverbrook, was represented by experienced counsel and an experienced solicitor. The inspector held a preliminary meeting at which he defined the issues that he would be considering during the inquiry and to which evidence should be adduced. The structure of the inquiry was that ECC as the registration authority, had had nothing to do with the site or its use previously so it could not provide any relevant evidence or documents. TDC was the local authority who had had dealings with the site, who was the statutory authority with control of the site if it was subject to a statutory trust, was the relevant planning authority and the authority providing answers to searches before exchange of contracts for MLG and was the authority who had any relevant documents that were still in existence having been the relevant authority for over 20 years and having inherited WNUDC’s documents on local government reorganisation in 1989.

It does not seem that either Silverbrook or the inspector gave significant prior notice of these two issues and Silverbrook did not provide to the inquiry or the applicant the relevant documents in its and its conveyancing solicitor’s files concerned with the site. These two issues are complex and difficult even for lawyers experienced with town and village greens as the inspector acknowledged in his report.

Although the inspector had no duty to search out information himself or to approach TDC or Silverbrook and ask it to provide relevant documents, he did have a duty of fairness. It is arguable that, in the circumstances of this case, that duty extended to either himself writing to TDC and Silverbrook or him asking ECC to write to those parties to provide relevant Flood Defence, open space, conveyancing and planning documentation relating to the use and status of the site.

ECC. In the light of these considerations and given the critical nature of both the as of right and interruption issues, it is also arguable that ECC’s solicitor should have written to both Silverbrook and TDC and sought the same categories of documents and should then have provided any documents received to both parties for their comments before finalising the advice that went to the committee.

It follows that ground 3 is arguable.

This ground may be stated as follows:

“Did ECC have the power to reconsider its refusal decision dated 22 February 2013 or to consider correcting a mistake under section 19(2)(a) of the CA following that refusal decision?”

There were, in reality, three alleged mistakes of law that Mr Naylor was contending should lead to a reconsideration of the first refusal decision and correction of that decision under section 19 of the CA. These were it and the inspector’s reasoning in contending that a statutory trust governed the site, that the Harwich Green advice showed that ECC had reached an erroneous decision in relation to the “as of right” issue and that it was mistaken to adopt a de minimis test in considering the interruption to the user of MLG and to refuse to apply the statutory disregard provided for in section 15(6) of the CA. Furthermore, it is arguable that ECC erred in law in deciding in its decision dated 13 May 2013.

Once Mr Naylor had brought to ECC’s attention the three possible errors of law referred to above in his two pre-action protocol letters, ECC was under a duty to consider whether it would withdraw and reconsider its challenged decision. It might have decided that it would not do so but that decision needed to be based on sustainable reasons and a brief explanation as to why there would not be a reconsideration. ECC, however, simply asserted that it had no power to reconsider the earlier decision. By inference therefore, it was asserting that it could not in any circumstances reconsider it so that, in reality, the pre-action protocol procedure would have been a charade in this case.

However, the decision could of course be withdrawn and reconsidered. The first decision was not subject to any form of res judicata or estoppel and like any administrative decision it could be reviewed. A review could not reasonably take place save in exceptional circumstances and so as to unfairly interfere with the rights of third parties or without consulting potentially affected parties. Here, the request for a review was made on good grounds and with an explanation for why it was being sought very soon after the decision had been promulgated and at a time when no party would be prejudiced.

Section 19 of the CA on its face appears to provide the power to seek a correction of the register when a registration by mistake fails to register an application that should have been registered. Section 19 is a new provision in the terms it is drafted in town and village green applications and it must have caused some surprise to practitioners used to the much more limited powers of correction provided for in the earlier legislation. Mr Evans contended that it was unarguable that section 19 could be used in these circumstances. It would, however, be surprising if any error of registration can be corrected, any failure to register a part of a registrable site may be corrected but a total failure to register may not be corrected. The type of mistake that may be corrected includes “a mistaken omission” (section 19(3)(a)) so that the suggestion that an omission from the register of an entire application comes within the ambit of section 19 is at least arguable.

Conclusion. It follows that ground 4 is arguable.

Mr Naylor sought to contend that the Harwich Green decision in some way gave rise to a ground for challenging the MLG decision on legitimate expectation grounds. That suggested further ground is unarguable and permission to make such a challenge is refused.

Joinder of TDC as a third interested party. I have already indicated that TDC should be joined as a third interested party. I confirm that that order should be made and that ECC should serve on TDC a copy of the claim form and grounds document, the defendant’s acknowledgement of service and this judgment and accompanying order. It will be for TDC to decide whether to serve an acknowledgement of service and any grounds supporting the claim or opposing it and whether to appear at the hearing. It is open to any party to apply for disclosure from TDC and, if this is refused, to apply on paper to the Administrative Court for an order for disclosure.

Silverbrook. Silverbrook has indicated that it intends to serve an acknowledgement of service and grounds of opposition if permission is granted. It should do so within 35 days of service of this judgment and accompanying order. The grounds of opposition should address each of the four grounds addressed in this judgment and Silverbrook should also provide without further order relevant disclosure with its acknowledgement of service which should be served on the court and on the four other parties.

Second interested party. Ms Diana Humphreys, the applicant in the registration application, attended the oral restored renewal application and informed the court that she had only held back from joining in this judicial review on financial grounds. She will consider whether to file an acknowledgement of service and participate in the hearing after she has learnt that permission has been granted and has reviewed her position but she is minded to do so.

Protective Costs Order. Mr Naylor has issued and served an application for a protective costs order but the application was not accompanied by an appropriate witness statement of means. This case, as the length of this judgment shows, is one redolent with difficulty and of considerable interest to town and village green applicants and practitioners. It is of particular significance since the coming into force of The Growth and Infrastructure Act 2013 since that Act will make it very unlikely that fresh applications for registration of town and village greens will be capable of being made hereafter. It follows that this particular judicial review is of particular significance to all those interested in MLG and in any other extant application that is awaiting a decision or is subject to challenge.

Given the importance of this application, its public interest and the fact that this is an application that does not interest Mr Naylor financially, I have decided that a protective costs order is right in principle and that its ceiling should be £3,000 for liability for ECC’s costs and £nil for his liability for any other party’s costs unless Mr Naylor applies to reduce or set aside that order or ECC applies to increase the amount or to set it aside. I base that conclusion in part on the grounds that the hearing should take no more than one day to argue, difficult as the points in issue may be. Any application must be made within 21 days of the service of ECC’s detailed grounds of defence and must be supported by appropriate witness statements, in Mr Naylor’s case that includes an affidavit of means and the matters set out in the appropriate place in the White Book (Footnote: ¹³).

Reconsideration. ECC is to reconsider its stance in relation to this challenge and is invited to do so in conjunction with Silverbrook. The issues are complex and bear reconsideration. If ECC decides to withdraw its opposition, it can do so either by withdrawing its previous decision and registering the application or by submitting a draft order supported by Mr Naylor for the original decision to be set aside or corrected.

Ground 1.

Ground 2.

Ground 3.

Ground 4.

Section 19 of the CA

Ground 5.