R (on the application of Allaway and another) v Oxfordshire County Council

  Town and village green – Registration – Qualifying requirement – Claimants applying for judicial review of decision to register land as town and village green (TVG) – Whether the inspector applying inappropriate discount for use of perimeter paths – Whether inspector failing properly to consider and apply qualifying requirement of use by significant number in locality – Application dismissed.      The interested party applied to the defendant county council, as registration authority, to register an agricultural field of about 14 acres, known as Humpty Hill, Faringdon, Oxfordshire as a town and village green (TVG) under section 15(2) of the Commons Act 2006. There were objections to the application from the claimants, who owned the land, and a company with an interest in it. The defendants appointed an inspector who held a public inquiry and produced a report recommending that the land be registered as a TVG. Following further representations by the objectors, the inspector produced a supplementary report but did not alter his recommendation to register the land as a TVG. The defendants approved that recommendation. The claimants applied for judicial review of that decision and the land was not registered pending the outcome of that application. They contended that the inspector had: (i) applied an inappropriate discount for use of the perimeter paths; and (ii) failed to properly consider and apply the qualifying requirement that the use needed to be by a significant number of those in the locality. Held: The application was dismissed. (1) If the tracks used were of such a character that their use could not give rise to a presumption of dedication at common law of a public highway then such use would readily qualify as a lawful pastime for the purposes of a TVG. If the situation was more complicated such that the tracks were of such a character that use of them could give rise to such a presumption then the answer had to depend on how the use would have appeared to the reasonable owner of the land. That was an objective test. If the position was ambiguous, inference should generally be drawn of exercise of the less onerous right (the public right of way) rather than the more onerous (the right to use as a green). In the present case, what the inspector described as the principal activity, namely, walking, and walking a dog, jogging or pushing a pram on a defined track on the potential TVG might be recreational use of land as a green and part of the total such recreational use if, in all the circumstances, it was such as to suggest to the reasonable landowner the exercise of a right to indulge in lawful sports and pastimes across the whole of his land. Reading the inspector’s reports as a whole and fairly, it was clear that he had discounted those either using the public footpath or using the paths as part of a route from one point outside the land to another. For the rest, he was satisfied that it was informal recreation, whether walking round one or other of the paths, whether the circular path or the outer path, whilst their dogs went over the land.  Others who walked and indulged in other forms of recreation elsewhere on the land were using the land for informal recreational use attributable to a village green right. The inspector had been well aware that the starting point had to be what a reasonable landowner would think. Having reviewed the evidence, he concluded that the owners of the land had to have been aware, insofar as they turned their minds to it, that the combination of informal recreational activities were taking place and that they had taken only cursory steps to prevent or restrict it. It was a classic example of recreation and low-level agriculture existing happily side by side: Oxfordshire County Council v Oxford City Council & Robinson [2004] EWHC 12 (Ch); [2004] 2 PLR 65 followed. Dyfed County Council v Secretary of State for Wales (1989) 59 P&CR 275 and R (on the application of Laing Homes Ltd) v Buckinghamshire County Council [2003] 3 PLR 60 distinguished. (2) The statutory wording of section 15 of the 2006 Act referred to “a significant number of inhabitants of any locality”.  There was no further statutory stipulation. If it had been intended by Parliament that the significant number related to inhabitants across the locality then words could have easily been inserted to that effect but had not. What the statutory wording was requiring was that there were a significant number of the inhabitants of any locality or any neighbourhood, if that was the basis of the application, who had indulged as of right in lawful sports and pastimes on the land. There was no basis in the statutory wording for there to be a spread of users across the locality. The word “significant” although imprecise was an ordinary word in the English language. Whether the use was actually significant was very much a matter of impression. Provided the number of people using the land in question was sufficient to indicate that their use signified that it was in general use by the local community for informal recreation that was sufficient. That would always be a matter of judgment for the decision-maker. R (on the application of Alfred McAlpine Homes Ltd) v Staffordshire County Council [2002] EWHC 76 (Admin); [2002] 2 PLR 1 and Lancashire County Council v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 1238; [2016] PLSCS 168 followed.  Douglas Edwards QC and Philip Petchey (instructed by Walker Morris LLP, of Leeds) appeared for the claimants; Stephen Morgan (instructed by Oxfordshire County Council) appeared for the defendants. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Allaway and another) v Oxfordshire County Council