QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy High Court Judge
| Richard Naylor
|- and -
|Essex County Council
(1) Silverbrook Estates Ltd
(2) Diana Humphreys
(3) Tendring District Council
Alan Evans (instructed by Essex Legal Services) for the Defendant
Hearing dates: 3 July 2014
Crown Copyright ©
John Howell QC :
"(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2)...applies.
(2) This subsection applies where
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and
(b) they continue to do so at the time of the application.
(6) In determining the period of 20 years referred to in subsections (2)(a)..., there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.
(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied
(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and
(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land "as of right".
"9. A local authority may, subject to the provisions of this Act,-
(a) acquire by agreement and for valuable or nominal consideration by way of payment in gross, or of rent, or otherwise, or without any consideration, the freehold of, or any term of years or other limited estate or interest in, or any right or easement in or over, any open space or burial ground, whether situate within the district of the local authority or not; and
(b) undertake the entire or partial care, management, and control of any such open space or burial ground, whether any interest in the soil is transferred to the local authority or not; and
(c) for the purposes aforesaid, make any agreement with any person authorised by this Act or otherwise to convey or to agree with reference to any open space or burial ground, or with any other persons interested therein.
10. A local authority who have acquired any estate or interest in or control over any open space or burial ground under this Act shall, subject to any conditions under which the estate, interest, or control was so acquired -
(a) hold and administer the open space or burial ground in trust to allow, and with a view to, the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation and for no other purpose: and
(b) maintain and keep the open space or burial ground in a good and decent state
and may inclose it or keep it inclosed with proper railings and gates, and may drain, level, lay out, turf, plant, ornament, light, provide with seats, and otherwise improve it, and do all such works and things and employ such officers and servants as may be requisite for the purposes aforesaid or any of them."
"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.
Any local authority may make byelaws for the regulation of any such public walk or pleasure ground, and may by such byelaws provide for the removal from such public walk or pleasure ground of any person infringing any such byelaw by any officer of the [local authority] or constable."
WHETHER THE USE OF THE RELEVANT LAND WAS MADE "AS OF RIGHT"
(a) when a use made of land is "as of right"
"where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use (whether for a limited period or an indefinite period), it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land "as of right", simply because the authority has not objected to their using the land.... It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their allocation decision if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights."
(b) under what powers (if any) was the District Council acting
i. the 1906 Act
ii. section 164 of the 1875 Act
iii. other powers that the District Council may have had and used
"Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."
As Lord Templeman stated in Hazell v Hammersmith LBC  1 AC 1 at p29, "in section 111 the word "functions" embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it." Thus, as Woolf LJ put it in the Divisional Court in that case ( 2 QB 697 at p723), in a passage subsequently endorsed by the Appellate Committee in McCarthy & Stone (Developments) Ltd v Richmond upon Thames LBC  2 AC 48 at p69,
"the subsection does not of itself, independently of any other provision, authorise the performance of any activity. It only confers, as the sidenote to the section indicates, a subsidiary power. A subsidiary power which authorises an activity where some other statutory provision has vested a specific function or functions in the council and the performance of the activity will assist in some way in the discharge of that function or those functions."
(c) conclusion on whether the use made of the relevant land was "as of right"
THE REGISTRATION AUTHORITY'S ALLEGED INVESTIGATIVE DUTY
INTERRUPTION TO THE USE MADE OF THE LAND
(i) the alleged need for a physical ouster of local inhabitants from the land
(ii) whether the use of the relevant land for lawful sports and pastimes continued notwithstanding the three month period of interruption in 1993
(iii) whether any interruption fell to disregarded given section 15(6) of the 2006 Act