R (on the application of Laing Homes Ltd) v Buckinghamshire County Council and another

Registration of village green — Whether agricultural use incompatible with use as of right for recreation — Whether council taking correct approach to issue of sufficiency of public use — Section 22 of Commons Registration Act 1965 — Claim allowed In April 2002, the defendant council resolved to agree an application by a local action group to register three fields in High Wycombe as a village green, pursuant to section 22 of the Commons Registration Act 1965. The land belonged to the claimant developer. The council’s resolution was based upon an inspector’s report that the local inhabitants had enjoyed recreational use of the land as of right for at least 20 years. Crucial to that conclusion was the inspector’s finding that the use of the land by a licensee of the claimant, for an annual cutting of hay for more than one-half of the 20-year period and for low-level grazing of animals during the first two or three years of that period, was not incompatible with the establishment of village green rights. In judicial review proceedings to quash the council’s resolution, the claimant argued that the registration would make the land subject to section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876, which would impose severe restrictions upon its use of the land and prevent it from carrying out its intended development. It challenged, in particular, the inspector’s approach to: (i) haymaking; (ii) the quantity of recreational use, which, it contended, had to be frequent throughout daylight hours across the majority of the land throughout the year, and which excluded use by walkers, including dog-walkers, around the edges on public rights of way; and (iii) the inhabitants’ contention that the land should revert to full agricultural use following the departure of the claimant’s licensee. Held: The claim was allowed. 1. The 1857 and 1876 Acts applied to land registered as a village green, either by virtue of the registration or simply because the land had been used as a village green for not less than 20 years: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94 considered. However, a village green had not been established. Preparatory steps for haymaking had been taken with a view to encouraging the grass to grow, notwithstanding that long grass might discourage many lawful sports and pastimes, and gathering a hay crop interrupted the use or enjoyment of a field as a place for exercise and recreation. Keeping out of the way of machinery being operated for an agricultural purpose was not consistent with the assertion of a right to use the land as a village green: Wren v Department of Environment, Food and Rural Affairs [2003] EWHC 2667 (QB) considered. When enacting the definition of “town or village green” contained in section 22(1) of the 1967 Act, it would be surprising if parliament had intended that a level of recreational use that was compatible with agricultural activities should suffice, since, upon registration as a village green, some, if not all, of those agricultural activities would become unlawful by virtue of the 1857 and 1876 Acts. 2. In considering whether a particular use by a landowner was incompatible with the establishment of a village green, the appropriate question was whether the recreational users were interrupting the agricultural use of the land in such a manner, or to such an extent, that the claimant should have been aware that the recreational users believed they were exercising a public right: Hue v Whiteley (1929) 1 Ch 440 and Sunningwell considered. Where the local inhabitants’ recreational activities did not interfere with the way in which the claimant had chosen to use its land, namely the taking of an annual hay crop by its licensee, there would be no suggestion that they were exercising or asserting a public right to use the land for lawful sports and pastimes, which it would have been reasonable to expect the claimant to resist. The action group’s application should have failed on that ground, a conclusion supported by the inhabitants’ contention that agricultural use of the land should resume following the departure of the claimant’s licensee. 3. The claimant’s proposed test of sufficiency of recreational use was unsupported by authority and imposed a more onerous test than that identified in the case law: Sunningwell and Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931 considered. The inspector had been correct to consider whether there was sufficient use of the whole of the land. However, in doing so, he had erred in failing to deal with an issue raised by the claimant as to how extensive that use was if walking and dog-walking around the boundaries were discounted. Such use was referable to the exercise of public rights of way, not to a right to indulge in informal recreation across the whole of the land, although the two rights were not necessarily mutually exclusive. Charles George QC, Paul Hardy and Jeremy Pike (instructed by Laytons, of Guildford) appeared for the claimant; Stephen Morgan (instructed by the solicitor to Buckinghamshire County Council) appeared for the defendants; James Maurici (instructed by the Treasury Solicitor) appeared for the interested party, the Secretary of State for the Environment, Food and Rural Affairs. Sally Dobson, barrister