England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		30 July 2015

1. MR JUSTICE DOVE:
2. introduction
3. Eastern Fields is an area of largely open land within Exeter. It is owned by Exeter City Council ("the Council"), having been assembled by means of two purchases. The first, in 1951, was the purchase of the lion's share of the area for recreation and playing field purposes. The second purchase in 1990 was the acquisition of former private railways siding land which was bought "to provide a comprehensive solution to traffic problems in the locality".
4. The genesis of this acquisition appears to have occurred a little earlier in the 1980s. The Exeter Local Plan, adopted by the Council on 26 November 1984, contained a proposal that broadly speaking the most southerly third of Eastern Fields should be allocated for employment use and a link road proposal to provide better access for industrial traffic to industrial areas in the vicinity.
5. On 26 September 1989 the Council's Policy Committee formally appropriated the land from a recreation use to be held for development purposes and then disposed of for industrial use. In accordance with the requirements of Section 122 and Section 123 of the Local Government Act 1972, this most southerly portion of the area, which had been allocated and resolved to be appropriated, went through an advertisement procedure prior to the completion of the appropriation in order to consult the wider public about that proposed appropriation and disposal. The allocation of the most southerly portion of the land was carried forward in the Exeter Local Plan First Alteration adopted on 15 November 1983 and also the Exeter Local Plan First Review adopted on 31 March 2005. In the public inquiry process pertaining to that Local Plan First Review document there were objections mounted to the proposals in respect of the southerly portion of the land which was allocated which were resolved by the Inspector who provided his report to the Council on the basis that the Council "must still consider that there is some prospect of the site being developed within the plan period".
6. In the most recent iteration of the forward planning process, the Council's Core Strategy recorded at Policies CP1 and CP2, that the employment allocation was again reaffirmed albeit not in a site-specific manner. In July 2012 the Council consulted the public about their Site Allocations and Development Management Development Plan Document which included the retention and continuation of the allocation of the southern third of Eastern Fields for employment development and the construction of the link road, to which I have alluded above.
7. By this time, on 1 September 2011, an application had been made to Devon County Council to register the whole of Eastern Fields as a town or village green. The application was passed by Devon County Council to the Planning Inspectorate to make the decision as they were at the time a "pilot" area for the purpose of the Commons Act 2006. An inspector held a public inquiry starting on 5 March 2013 at which the claimant gave evidence in support of the application (called as a witness by the applicant). The Council appeared at the inquiry as the principal objector to the proposal. They called Mr Short who gave evidence about the planning history and who spoke of the significance in planning terms of both the link road and also the employment site as follows:

i. "Importance of the link road and employment allocation

ii. 15 The highway authority considers the Exhibition Way link road to be an essential part of the highway strategy for the Pinhoe area. Over 600 homes have been approved at Pinhoe Quarry and Ibstock Brickworks in the expectation that it can be delivered. Without the link road, traffic will utilise the sub-standard Chancel Lane, the narrow Harrington Lane bridge, two mini roundabouts in the centre of Pinhoe that are subject to peak hour congestion and a wider constraint on development north of Pinhoe. A letter from Devon County Council, the Highway Authority, on the importance of the link road is at tab/20 and a letter from the Exeter and Heart of Devon Growth Board at tab/21. If the link road cannot be delivered the financial contribution from Pinhoe Quarry may need to be returned and that from Ibstock Brickworks used for less effective traffic solutions to mitigate the impacts of the development. The Pinhoe Quarry and Ibstock Brickworks sites constitute over one year's housing land supply at the average Core Strategy rate of 600 homes per annum. The sites are an essential component of the Council's five year housing supply and of the supply for the plan period to 2016.

iii. 16 The employment allocation of 3 hectares at Eastern Fields represents about 12.5% of the 24 hectares proposed to be allocated in the City in the Site Allocations and Development Management document. It is the only site that is in Council control and therefore potentially available to meet the needs of businesses that may need to be relocated as part of other planning strategies for the City."

8. In relation to the land comprised in the application as a whole at Eastern Fields, the Inspector concluded on the evidence that it had been used by a significant number of inhabitants of the claimed locality, Pinhoe ward. Apart from the site of two small electricity sub-stations within the application land, this use had continued on the land for at least twenty years. The nature of the use had been one for lawful use and pastimes. The key question was whether the use had been "as of right" or "by right". In relation to the balance of the land not included within the employment allocation or the former railway sidings, the Inspector was satisfied that the use was by right as a consequence of that land continuing to be held as open space throughout the relevant period.
9. This conclusion was an issue originally identified as ground 1 in the challenge before me and applied to the whole of the land comprised the application. That ground was withdrawn in the light of the decision of the Supreme Court in Barkas v North Yorkshire County Council [2014] UKSC 31. The focus of this case now is the Inspector's conclusions in relation to the land which had been appropriated for development and the link road proposal and the former railway sidings land acquired for highway purposes identified in the Inspector's report set out below as amounting to 6.6 acres.
10. Having set out the Council's treatment of the land recorded above, the Inspector recorded the parties' contentions and his conclusions as follows:

i. "83 ECC argued, however, from evidence of how the application land was used and managed after 1989, that it could be inferred that there had been a re-appropriation of the land to open space purposes. The evidence showed, it stated, that there had been a nationwide recession in the early 1990s, that there was then no demand from industry to take up any of the 6.6 acres which had been appropriated, and that money to fund the required infrastructure including the new road (paragraph 60 above) was therefore not forthcoming. The possibility that this land would be disposed of for industrial development was 'confined to history' by 1991. The whole of Eastern Fields continued to be managed by the Parks and Open Spaces Committee (or one of its predecessors) and money was spent on it in connection with its use as open space. There was judicial authority (albeit obiter) that appropriation did not need to be express. Within a few years of 1989 the 6.6 acres could be considered to have been re-appropriated to open space use.

ii. .....

iii. 85 The principal points of evidence relevant to what took place after 1989 are as follows. A report to ECC's Property Group (an officer group) in October 1990 noted, concerning the withdrawal of a potential occupier of the 6.6 acres:

iv. 'In the current property market, the return required by the Council for the site necessary to meet the infrastructure requirements was too high to be competitive.'.

v. In 1991, however, the Economic Development Committee noted that:

vi. 'The City Council are progressing the development of land, including infrastructure improvements, at Eastern Fields, off Exhibition Way, Pinhoe, for industrial development.'

vii. 86 A report to the Property Sub-committee about the short term lease of the compound on the southern edge of Eastern Fields (paragraph 42 above) in May 1992 referred to the possibility of development of the 6.6 acres becoming feasible. In May 1993 a note to the Property Group referred to the possibility of: 'early redevelopment of this potential industrial site ..... '

viii. 87 However, an internal ECC memorandum in 1992, in relation to a small area within the 6.6 acres leased temporarily as a trailer park asked:

ix. 'Is the trailer park still public open space?'

x. Another internal memorandum from 1993, about the same or a nearby piece of land, referred to that area of Eastern Fields as public open space. 1995 documents relating to the lease of the compound just north of the railway bridge referred to the client committee as the Leisure Committee.

xi. 88 This evidence seems to show some confusion within ECC about how the land was held in the early 1990s. It is possible, under section 120 (2) of the Local Government Act 1972, for land acquired for one purpose to be used temporarily for another purpose, but in this case there is no evidence of a formal decision to use the 6.6 acres temporarily as open space until it was needed for industrial development.

xii. 89 The Exeter Local Plan First Review, adopted in March 2005, stated:

xiii. 'To the west of the brickworks and to the south-east of Eastern Fields, some 5.4 hectares [this is more than 6.6 acres, but included land outside Eastern Fields] are proposed for further industrial development ..... The land at Eastern Fields forms part of an open area of green space which is much valued by local residents and is only allocated, exceptionally and specifically to help resolve the access difficulties ..... [i.e. to build a road]. In view of the site's location close to the Exeter Arena athletics stadium the land could alternatively be developed for indoor leisure.'

xiv. 90 Shortly after the adoption of this Plan, in 2006 and 2007, ECC spent several thousand pounds planting and maintaining trees on Eastern Fields (see paragraph 11 above). A good proportion of these trees is within the 6.6 acre area appropriated in 1989.

xv. 91 In 2009 metalled cycle and pedestrian paths (as described in paragraph 13 above) were created following a proposal by Devon County Council made in connection with the provision of a cycle route network for Exeter. The east-west path and part of the north-south path are within the 6.6 acres.

xvi. 92 Since appropriation in 1989 these 6.6 acres of land have been managed, along with the remainder of the application land, by the same department – Parks and Open Spaces – used by the public in the same way (apart from the compound) and maintained in the same way. Licensed activities, such as funfairs and circuses, continued, mostly within the southern third of the site. In ECC's current Asset Register, under the heading 'type', Eastern Fields is categorised as 'community assets' rather than 'open space.'

xvii. 93 The evidence from the 1990s and the first decade of the 21st century is not supportive, I consider, of the view that the application land was being held by ECC as industrial development land while temporarily being used as open space. Spending significant amounts of money on permanent facilities inconsistent with future industrial development is not, in my view, reconcilable with temporary open space use; neither is the Local Plan's description of it in 2005 as a valued area of green space. The applicants mentioned the failure to list Eastern Fields as 'open space' in the Asset Register, without asserting in what way this was thought to be significant.

xviii. 94 It is clear that there was no formal re-appropriation of the 6.6 acres to open space use; what evidence there is suggests that the 1989 appropriation was gradually forgotten within ECC. The objector, however, argued that a local authority could exercise its power of appropriation by implication and cited the judgment in Oxy-Electric v Zainuddin (1990). T Cullen QC, acting as a judge stated:

xix. 'As far as the exercise of statutory powers is concerned, it is common ground that the local authority can only change the purpose for which it holds land under a statutory power of appropriation. That must be so whether it is application, appropriation or any other term. Here one is looking for the exercise of a statutory power by a local authority. I am quite prepared to accept that if the local authority deal with the land in such a manner that it could only have dealt with it lawfully if it had made an appropriation, then the resolution need not record such appropriation.'.

xx. ECC accepted that this comment was obiter, but noted that a number of expert practitioners in the field of town and village green registration had adopted this approach in reports to registration authorities.

xxi. .....

xxii. 96 The applicants did not challenge the factual basis on which ECC based its argument for an implied re-appropriation. Their contention was that there could be no inferred appropriation in these circumstances. The application land continued, from 1989 to the present day, as land which was appropriated to industrial development. They cited in support the judgment of Sullivan LJ in Barkas v North Yorkshire County Council [2012] EWCA Civ 1373. Sullivan LJ stated at paragraph 43:

xxiii. 'While there is no general exclusion of local authorities from the scope of the 2006 Act [he referred here to Lord Walker's comments in Beresford], local authorities holding land for a particular statutory purpose are not in the same position as private landowners who may, subject to planning controls, change the use of their land at will. A local authority holding land for a particular statutory purpose may not use it for any other purpose unless it has been formally appropriated to that purpose, and if it simply ceases to use land for the statutory purpose for which it is held it must be able to justify its decision to do so on public law grounds. Unlike a private landowner it may not lawfully close a recreation ground or prevent members of the public from using it for recreation, on a whim.'

xxiv. 97 It seems to me that this part of the judgment of Sullivan LJ should be put into context. Earlier in his judgment he commented on their Lordships' opinions in the case of Beresford (above paragraph 69). In that case land was made available as a sports arena under the New Towns Act 1965. Sullivan LJ said, at paragraph 36 of Barkas:

xxv. 'I confess that I find it difficult to understand why the statutory approval of the Corporation's New Town Plan 1973 by the Minister which had the effect of granting planning permission for the development of the land as 'parkland/open space/playing field', when coupled with the subsequent laying out and grassing over of the land, was not sufficient to amount to an 'appropriation' of the land as recreational open space in the sense in which Lord Walker used that word.'.

xxvi. It is clear from that and other statements that Sullivan LJ was satisfied that there could be an appropriation of land without the formalities of section 122 of the Local Government Act 1972 (above, paragraph 77). Paragraph 43 of his judgment, cited by the applicants was concerned with the differences between private landowners and local authorities as landowners, and the fact that private owners could, subject to planning controls, change the use of their land at will. It does not contradict, it seems to me, the idea of implied appropriation; it confirms that there must be justification for a change of use of land, but is not authority for stating that such a justification could not arise from an inference that appropriation had

xxvii. taken place.

xxviii. 98 I conclude from the available evidence that it would be right to consider that the 6.6 acres appropriated in 1989, together with the small part of the railway sidings land within the application land, had been re-appropriated to open space use by soon after the beginning of the 21st century; not as early as ECC argued for, but by the time trees were planted in 2006/7. An inferred re-appropriation would render ECC's dealings with the land lawful, when they might otherwise not have been so. I conclude further that the use by local inhabitants of this land for lawful sports and pastimes would therefore have been by right for a substantial part of the 20 year period.

xxix. 99 These conclusions are somewhat tentative; ECC assumed that the planting of a substantial quantity of trees on part of the 6.6 acres, and the provision of a cycle track across it, would have been unlawful had the land remained appropriated to industrial development, but the question of whether, in those circumstances, its actions might have been considered careless rather than unlawful was not canvassed.

xxx. 100 It is because of the tentative nature of my conclusions that I go on to consider the alternative argument put forward by ECC, that use of the application land by local inhabitants during the 20 year period was by its licence."

11. Having reached only tentative conclusions about the argument that this land had been re-appropriated to open space use, the Inspector went on to address the alternative basis on which the argument was put by the council, namely that the use of the land was such that reasonable people would have concluded that they were let on to the land by virtue of the council's implied consent. In relation to that argument, the Inspector concluded as follows:

i. "102 The objector's argument in brief is this. During (and before) the relevant 20-year period, ECC licensed various activities, such as fairs, which took place on Eastern Fields, and to which the public was admitted on payment. It licensed other activities, such as circuses or athletic events, which resulted in the exclusion of the public from significant parts of Eastern Fields for various periods, often days at a time. It could be concluded from this that the landowner's conduct in relation to the land was sufficient to bring home to reasonable people that they were on the land by virtue of his implied consent.

ii. .....

iii. 105 Some of the activities proposed by ECC as suggesting that licensed use by local inhabitants should be inferred were, on their own, trivial in the extreme. One was a 5000-metre race with an unknown but presumably quite small number of competitors which took place on one occasion as part of the Meteorological Office annual sports day. On the other hand some events, such as circuses, would be on site for up to 5 days, and funfairs could be on Eastern Fields for a couple of weeks or more. Evidence was presented from which I am satisfied that on at least eleven occasions in the period 1991 to 2011 circuses visited, and that the funfair was there on at least three occasions. Admission to the fairground rides or circus big top was by payment.

iv. 106 I accept the evidence of some of the applicants' witnesses that the areas around the various rides and stalls, and the areas around the circus tents, were accessible, even if access to these areas by non-participants was not encouraged. It is nevertheless clear that there were areas that were not accessible because of licensed activities for considerable periods, amounting to several weeks over the 20 year period.

v. 107 ECC's argument (paragraph 100 above) was based on the application of two judgments to the facts. The first case was that of Beresford (see above at 70 and 71). Lord Bingham's opinion (at paragraph 5) was:

vi. 'I can see no objection in principle to the implication of a licence where the facts warrant such an implication. To deny this possibility would, I think, be unduly old-fashioned formalistic and restrictive. A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission. This may be done for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants' use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use.'

vii. Lord Walker stated (at paragraph 83):

viii. 'In the Court of Appeal Dyson LJ considered that implied permission could defeat a claim to user as of right, as Smith J had held at first instance. I can agree with that as a general proposition, provided that the permission is implied by (or inferred from) overt conduct of the landowner, such as making a charge for admission, or asserting his title by the occasional closure of the land to all-comers. Such actions have an impact on members of the public and demonstrate that their access to the land, when they do have access, depends on the landowner's permission.'

ix. 108 From this it may be concluded at least that if an owner of land excluded the public from the whole of it for a period or periods, as described above, then a licence might, depending on the circumstances, be implied. The applicants did not disagree with that proposition. In the case of R (on the application of Mann) v Somerset County Council [2012] EWHC 814 (Admin), also concerned with an application to register land as town or village green, however, the court clarified the position with regard to partial exclusion. In Mann, the owner licensed the holding of a beer festival on a fairly small part of the land on a few occasions during the 20-year period.

x. 109 It was held by Owen J (sic) in the High Court in the Mann case (at paragraph 71) that:

xi. 'From these observations [of their Lordships in the Beresford case], which I take as authoritative guidance on conduct by an owner which may count as an overt act or as a relevant or demonstrable circumstance sufficient in law to allow an inference of permission, it appears that the owner must make it clear that the public's use of the land is with his permission and that that may be shown by excluding the public on occasional days (per Lord Bingham, para 5; and see para 79 per Lord Walker); he must do something on his land to show that he is exercising his rights (as owner) over his land and that the public's use is by his leave (para 6); there must be a positive act by [the] owner qua public though a notice is not necessary provided the circumstances relied on allow the inference to be drawn (para 59); implied consent by taking a charge for entry or similar overt act communicated to the public is sufficient without the need for express explanation or notice (para 75); such conduct need only occur from time to time (I should add, perhaps once only during the period under scrutiny) (para 76); such conduct will be expected to have an impact on the public and show that when the public have access (I should add, to all or part of the land) they do so with the leave or permission of the owner (para 83).'

xii. Owen J (sic) held further (at paragraph 73) that:

xiii. 'In the absence of clear reason to suppose otherwise an act by the owner relating to part of the land, as occurred in this case, may be taken to be referable to the whole of the land.'

xiv. 111 The applicants argued that there was no overt or unequivocal act which demonstrated, either by exclusion or other act, that use of the land was by permission. The decision in Mann, they asserted, was an aberration. The High Court decided that the inspector in that case was entitled to come to the decision he did and the judgment applied only to the facts in that case, so that Mann was not a persuasive authority.

xv. 112 I do not accept that the decision in Mann was an aberration. I was given no good reason to conclude that the judgment of Owen J in that case did not express the law as it is or that it does not have wider application than to the particular facts of that case. If, contrary to what I have already concluded, the application land was held for planning purposes, or industrial development purposes, it seems to me reasonable to conclude that the temporary licensing of the activities that took place there over several days would have alerted a reasonable person to the fact that he or she was using the land, when he or she could access it, by permission."

12. As a result of these conclusions, the Inspector determined that the application should be refused.
13. the Grounds
14. In the remaining grounds which are before the court relate as set out above to the area of land allocated for employment use and the link road improvements, not the whole of the application land. The claimant contends in particular in what has now become ground 1 that the Inspector erred in law in concluding in relation to that land that reliance could be placed upon an "inferred re-appropriation" and that he misdirected himself in law on that issue. In ground 2 it is submitted that the Inspector failed to have regard to two particular and important material considerations in the arguments before him related to implied licence, namely the public ownership of the land in question and also the nature and quality of the events which were held upon it. Further, it is considered that if the council did not re-appropriate the land to open space then as they did not have power to grant temporary use of the land as open space the use which the Inspector found must have been "as of right" rather than "by right".
15. the Law
16. Although originally promoted under Section 15 (3) of the Commons Act 2006, before the Inspector the application was amended so as to be brought under Section 15 (2) of the 2006 Act. So far as relevant Section 15 provides as follows:

i. "15 Registration of greens

(2) 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), (3) or (4) applies.

(3) 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."

17. It will be evident from what I have set out above that by the end of the inquiry the Inspector was satisfied of all of the necessary statutory ingredients for registration apart from whether the use of the land had been "as of right" rather than "by right". Insofar as the southerly part of the land allocated for employment development and a link road were concerned, that land formed the focus of this challenge. The first strand of the argument before him was that the use was "by right" on the basis that the council held the land as open space throughout the relevant period.
18. The council, as a statutory body and a local authority, requires statutory authority in order to perform any of its functions. Its power to acquire and hold land is created by Section 120 and Section 122 of the Local Government Act 1972. They provide as follows:

i. "120 Acquisition of land by agreement by principal councils

(1) For the purposes of —

(a) any of their functions under this or any other enactment, or

(b) the benefit, improvement or development of their area,

ii. a principal council may acquire by agreement any land, whether situated inside or outside their area.

(2) A principal council may acquire by agreement any land for any purpose for which they are authorised by this or any other enactment to acquire land, notwithstanding that the land is not immediately required for that purpose; and, until it is required for the purpose for which it was acquired, any land acquired under this subsection may be used for the purpose of any of the council's functions.

i. .....

ii. 122 Appropriation of land by principal councils

(1) Subject to the following provisions of this section, a principal council may appropriate for any purpose for which the council are authorised by this or any other enactment to acquire land by agreement any land which belongs to the council and is no longer required for the purpose for which it is held immediately before the appropriation; but the appropriation of land by a council by virtue of this subsection shall be subject to the rights of other persons in, over or in respect of the land concerned.

iii. .....

iv. (2A) A principal council may not appropriate under subsection (1) above any land consisting or forming part of an open space unless before appropriating the land they cause notice of their intention to do so, specifying the land in question, to be advertised in two consecutive weeks in a newspaper circulating in the area in which the land is situated, and consider any objections to the proposed appropriation which may be made to them.

v. (2B) Where land appropriated by virtue of subsection (2A) above is held —

(a) for the purposes of section 164 of the Public Health Act 1875 (pleasure grounds); or

(b) in accordance with section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds),

vi. the land shall by virtue of the appropriation be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with the said section 164 or, as the case may be, the said section 10."

19. In this connection "open space" means land laid out as a public garden or used for the purpose of public recreation or land which is a disused burial ground. That definition is taken from Section 336 of the Town & Country Planning Act 1990 which is incorporated, for the purposes of the 1972 Act, by Section 270 of the 1972 Act.
20. There are some key features of this regime for the purposes of this case. First, Section 122 (1) contains no prescribed formula for the procedure to be adopted when a council appropriates land from one purpose to another. It does however need the council to determine that it no longer requires the land for the purpose for which it was holding it up to the point of that appropriation.
21. Secondly, and as an exception to this first point, there is a prescribed statutory process required for land which is open space and that is contained in the consultation requirements set out in Section 122 (2A). The land simply needs to be used as open space for this consultation requirement to bite. This point can be derived from the definition within Section 336 of the 1990 Act of open space, including land "used for the purposes of public recreation". It can also be derived from the decision of this court in R v Doncaster Metropolitan Borough Council ex p Braim 1986 57 P & CR 1, 15, where McCullough J observed as follows:

i. "One further point remains. What quality of user 'for purposes of public recreation' is required before the land is 'open space' for the purposes of Section 123 (2A) of the Local Government Act 1972 as amended [which is a like provision to Section 122 (2A) in relation to disposal]? Mr Whybrow contends that it must be as of right, ie that user under a bare licence will not suffice. He suggests that any other construction would be absurd and inconvenient. I do not agree. Section 123 (2A) appears to have been enacted to protect the interests of those lawfully using open spaces. A bare licensee has no interest in land, but so long as his licence exists he has something which he can enjoy. It can only be brought to an end on giving him reasonable notice. In many cases such notice need only be very short, but it is possible to envisage circumstances in which a significant period would be required. Where a licence has been given, there is no hardship or absurdity in a council having to choose between postponing its disposal of the land until such notice has been given and expired and, alternatively, advertising the intended disposal in the way required."

22. This proposition was recently reinforced and applied by Mr Justice Cranston in R (On Application of Galaxy Land Limited) v Durham County Council [2015] EWHC 16.
23. Thirdly, Section 120 (2) provides power for a council to acquire land for a purpose notwithstanding that it is not immediately required for that purpose and it allows its use for the purpose of any other council power in the meanwhile. This contemplates temporary uses. But Mr Edwards QC, who appeared on behalf of the claimant, submitted that it empowered temporary uses only between acquisition and that land being required for the acquisition use.
24. The Inspector relied upon an argument based on informal re-appropriation which he derived from the decision of this court in Oxy-Electric Ltd v Zainuddin & Another, 22 October 1990 (unreported). In that case in order to avoid an action for breach of covenant it was necessary for the defendants to show that the buildings they proposed to erect were authorised by Section 127 of the Town & Country Planning Act 1971. To do so, they had to establish that the land had been appropriated to a planning purpose. Mr T Cullen QC (sitting as a Deputy High Court Judge) concluded as follows:

i. "Mr Carnwath, who appeared for the defendants, said that appropriation is not a technical term. It merely means that the council in fact applied the land for such purposes. Mr Roots, who appeared for the plaintiff, said that, as appropriation carried out by the local authority can only be carried out by it under a statutory power, it must be a conscious decision or it must be an implicit step in a conscious decision. I was referred to Dowty v Wolverhampton Corporation (No 2) [1976] Ch 13, and Edmonds v Stockport Metropolitan Council 1 [1990] 1 PLR 1. In each of those cases, there was an express appropriation for 'planning purposes', but only for planning purposes. It follows from those cases, that there need not be a specific purpose mentioned in the local authority's resolution. But the defendants go further, they say that there need be no express appropriation nor an implicit appropriation. One simply looks at the facts to see if the local authority applied the land for purposes which could be planning purposes under Section 133. As far as the exercise of statutory powers is concerned, it is common ground that the local authority can only change the purpose for which it holds land under a statutory power of appropriation. That must be so whether it is application, appropriation or any other term. Here one is looking for the exercise of a statutory power by the local authority. I am quite prepared to accept that, if the local authority dealt with the land in such a manner that it could only have dealt with it lawfully if it had made an appropriation, then the resolution need not record such appropriation."

25. This authority, albeit obiter, was treated by the Inspector, as creating in effect a doctrine of inferred appropriation by conduct. I am unconvinced that the authority is capable of being interpreted as broadly as he did. The observations, as I have indicated, were obiter but, most importantly, they are focused on the need for identification - or recording in a resolution dealing with the land - that an appropriation had occurred. The absence of such a need formally to record within council records or resolutions an appropriation is entirely justifiable on the basis that there are no formal procedures specified in the statutory framework, absent the use of the land as open space. However that finding does not go so far as to ground the proposition that by conduct alone appropriation can be inferred.
26. The difficulty with that suggestion is the need for the authority, when exercising the power under Section 122 of the 1972 Act, to be satisfied that the land "is no longer required" for the purpose for which it is held. That requires some conscious deliberative process so as to ensure that the statutory powers under which the land is held is clear and appropriation from one use to another cannot, in my view, be simply inferred from how the council manages or treats the land.
27. My conclusion is reinforced by the decision of this court in R (On Application of Malpass) v Durham County Council [2012] EWHC 1934, in which His Honour Judge Kaye (sitting as a Deputy Judge of the High Court) concluded as follows:

i. "44 That being so, in my judgment the decision of the CRA, based as it ultimately was, on the reasoning and recommendations of the inspector, must be viewed as flawed sufficient to justify quashing the decision for the reasons advanced by Mr George (which is why I have set them out fully above). Equally I am not persuaded by Mr Laurence's alternative argument based on informal appropriation. This depended on a finding that the land was not acquired or held for an inconsistent purpose, something the inspector seems to have assumed ('in practice') rather than found as a fact (or in law). Reliance on Doncaster does not assist for there the assumption that the local authority could dedicate the land to public use was a concession made by both sides and was not fully argued."

28. My citation of course begs the question as to what the "reasons advanced by Mr George" were which the judge relied upon in reaching a conclusion that the inspector's decision was flawed. Mr George's submissions in that case are recorded in paragraph 39 of the judgment. So far as they are material to this argument, they are as follows:

i. "39 .....

ii. .....

iii. It was insufficient merely to state that the land was 'in practice' held for a purpose which was not inconsistent with the new, informally appropriated, purpose. To be a valid appropriation to the stated use, the local authority must have concluded that the land subject to the appropriation was 'not required' for its existing purposes (see Local Government Act 1933, ss 163, 165). No such conclusion is recorded in the 1964 Deed or elsewhere nor does the 1964 Deed declare it was appropriating the land to a different purpose. Moreover, to take effect as an appropriation from one use to another the formal statutory mechanisms of the Local Government Act 1933 needed to be complied with and ministerial approval (at that time) was needed. It was apparent none of the formalities had been observed. All this is unsurprising given the inspector was relying on and treating the 1964 Deed as an informal process."

29. Further reinforcement of the need for a conscious deliberative process addressing the test contained within Section 122 of the 1972 Act in order to found an appropriation is provided by paragraph 33 of the decision of Mr Justice Burton in Western Power Distribution Investments Limited v Cardiff City Council [2013] EWHC 1407.
30. It will be recalled that the Inspector's conclusions were also supported by reliance on the Court of Appeal decision in Barkas. That case concerned the acquisition and holding of land under Section 80 (1) of the Housing Act 1936 and subsequently Section 12 (1) of the Housing Act 1985. Part of the land was laid out and maintained as a recreation ground. The argument depended on the claimant's contention that the rights enjoyed under Section 80 of the 1936 differed from the rights under Section 10 of the Open Spaces Act 1906. Section 80 of the 1936 Act provided as follows:

i. "80 The powers of the local authority under this Part of the Act to provide housing accommodation shall include a power to provide and maintain with the consent of the Minister and a desire jointly with any other person in connection with any such housing accommodation any building adapted for use as a shop, any recreation grounds or other buildings or land which, in the opinion of the Minister, will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided."

31. Section 12 of the Housing Act 1985 reads to similar effect.
32. Lord Justice Sullivan concluded that there was no difference between open space provided under Section 10 of 1906 Act and Section 164 of the Public Health Act 1875. Use of such land by the public for lawful sports and pastimes would be by right rather than as of right. He then went on to consider the issue arising in respect of land held under Section 80 of the 1936 Act and concluded as follows:

i. "35 Is the position any different when the recreation ground is provided under section 80 of the 1936 Act? Such land is not formally appropriated under section 122 of the 1972 Act from housing to open space purposes. It is acquired, and continues to be held by the local authority, for housing purposes, as are the shops or other buildings, eg community centres, which serve a beneficial purpose in connection with the requirements of those living in the housing: see section 80 (1) (paragraph 6 above). Thus, unlike open space provided under section 10 of the 1906 Act or section 164 of the 1875 Act, there is no need to appropriate a recreation ground provided under section 80 to housing purposes if, as in the present case, the local authority wishes to build houses on the recreation ground.

ii. 36 In these circumstances, there is much force in Mr Edwards' submission that the statutory framework under which the Field is provided is analogous to the 'very wide powers' under the New Towns Act 1965 under which the land was made available as a sports arena in Beresford. Unfortunately, there is no analysis in Beresford of the powers conferred by the New Towns Act. I confess that I find it difficult to understand why the statutory approval of the Corporation's New Town Plan 1973 by the Minister, which had the effect of granting planning permission for the development of the land as 'parkland/open space/playing field', when coupled with the subsequent laying out and grassing over of the land, was not sufficient to amount to an 'appropriation' of the land as recreational open space in the sense in which Lord Walker used that word. Lord Bingham found it unnecessary to review the statutory provisions because, on the facts, he considered that none of them could be relied on to confer a legal right to use the land for indulgence in lawful sports and pastimes (paragraph 9). Lord Rodger [at 62] said that, for the reasons given by Lord Walker, neither the designation of the land as 'open space' in the New Town Plan nor any of the statutes conferred any right to use the sports arena (paragraph 62). Lord Walker emphasised [at 89 (a)] the 'very wide powers' in the New Towns Act, the fact that the land was not acquired for any particular purpose, and the fact that the Corporation was not under an obligation to appropriate the land for any specific purpose, such as housing, public buildings or open space (paragraph 89 (a), see paragraph 25 above).

iii. 37 Like Lord Scott, I am uneasy about the conclusion that the House of Lords reached in Beresford, but we are bound by it. However, my understanding of the decision is that it turned very much upon the particular facts in that case, and the House of Lords deliberately left open the wider question: when will user by the inhabitants of a locality be pursuant to a statutory right to do so and not as of right? We are concerned with the provision of a recreation ground by a local authority under a different statutory framework. On the Inspector's findings of fact the Field was acquired under a statutory power for a specific purpose: housing. While the UDC was not under any obligation to lay out the land as a recreation ground, the enabling enactment expressly gave it power, with the consent of the Minister, to provide a recreation ground in connection with the housing. The Minister's consent having been obtained and the Field having been laid out and thereafter maintained as a recreation ground initially under that express statutory power, and thereafter under its successor, section 12 of the 1985 Act, it seems to me that it would be wholly unreal to conclude that the Field had not been 'appropriated for the purpose of public recreation' in the sense in which Lord Walker referred to 'appropriation' in paragraph 87 of his opinion in Beresford."

33. Lord Justice Sullivan concluded generally in relation to the issues associated with local authorities' ownership and use of land as follows:

i. "42 It is 'very difficult', if not impossible, to regard the local inhabitants who indulge in lawful sports and pastimes on land which is provided by a local authority as open space under the 1906 Act, as public walks and pleasure grounds under section 164 of the 1875 Act, or as a recreation ground under section 80 of the 1936 Act, as trespassers. The underlying difficulty may well be the need to apply private law concepts in a public law context. The former focuses upon rights, the latter upon duties. Most statutes dealing with local authorities do not expressly confer rights on members of the public, they tend to impose duties upon the authority and thereby confer rights that are enforceable as a matter of public law. The local inhabitants can fairly be said to have a statutory right to use land which has been 'appropriated' for lawful sports and pastimes because the local authority, having exercised its statutory powers to make the land available to the public for that purpose, is under a public law duty to use the land for that purpose until such time as it is formally appropriated to some other statutory purpose under section 122, or in the case of a recreation ground provided and maintained under Housing Act powers (now section 12 of the 1985 Act), a formal decision is taken that it shall be used for some other housing purpose.

ii. 43 While there is no general exclusion of local authorities from the scope of the 2006 Act (see the final sentence of the opinion of Lord Walker in Beresford, paragraph 24 above), local authorities holding land for a particular statutory purpose are not in the same position as private landowners who may, subject to planning controls, change the use of their land at will. A local authority holding land for a particular statutory purpose may not use it for any other purpose unless it has been formally appropriated to that purpose, and if it simply ceases to use land for the statutory purpose for which it is held it must be able to justify its decision to do so on public law grounds. Unlike a private landowner it may not lawfully close a recreation ground or prevent members of the public from using it for recreation, on a whim."

34. In her submissions Miss Busch, who appears on behalf of the defendant in this case, supports the Inspector's reliance on the decision of the Court of Appeal in Barkas as justifying an approach based upon inferred appropriation and further relies upon the decision of the Supreme Court in Barkas in that respect. When the case reached the Supreme Court the appeal against the Court of Appeal's conclusions were dismissed. Furthermore, the Supreme Court concluded that in relation to the observations in relation to statutory authority in the decision of the House of Lords in Beresford it was to be departed from and no longer followed. The conclusions in the leading judgment of Lord Neuberger are set out as follows:

i. "21 In my judgment, this argument is as compelling as it is simple. So long as land is held under a provision such as section 12 (1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land 'by right' and not as trespassers, so that no question of user 'as of right' can arise. In Sunningwell [[2000] 1 AC 335] at pp 352H-353A, Lord Hoffmann indicated that whether user was 'as of right' should be judged by 'how the matter would have appeared to the owner of the land', a question which must, I should add, be assessed objectively. In the present case, it is, I think, plain that a reasonable local authority in the position of the Council would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities, given that the Field was being held and maintained by the Council for public recreation pursuant to section 12 (1) of the 1985 Act and its statutory predecessors.

ii. 22 It is true that this case does not involve the grant of a right in private law, which is the normal issue where the question whether a use is precario arises. Indeed, the fact that the right alleged in this case is not a conventional private law right, but a public law right, was rightly acknowledged by Ms Lieven. Thus, it is a right principally enforceable by public rather than by private law proceedings. It is also a right which is clearly conditional on the Council continuing to devote the Field to the purpose identified in section 12 (1) of the 1985 Act (and it is unnecessary for present purposes to go into the question of what steps the Council would have to take to remove the Field from the ambit of the section). Accordingly, the right alleged by the Council to be enjoyed by members of the public over the Field is not precisely analogous to a public or private right of way. However, I do not see any reason in terms of legal principle or public policy why that should make a difference. The basic point is that members of the public are entitled to go onto and use the land – provided they use it for the stipulated purpose in section 12 (1), namely for recreation, and that they do so in a lawful manner.

iii. 23 It is worth expanding on this. Section 12 (1) of the 1985 Act and its statutory predecessors bestow a power on a local (housing) authority to devote land such as the Field for public recreational use (albeit subject to the consent of the Minister or Secretary of State), at any rate until the land is removed from the ambit of that section. Where land is held for that purpose, and members of the public then use the land for that purpose, the obvious and natural conclusion is that they enjoy a public right, or a publicly based licence, to do so. If that were not so, members of the public using for recreation land held by the local authority for the statutory purpose of public recreation would be trespassing on the land, which cannot be correct. Of course, a local authority would be entitled to place conditions on such use – such as on the times of day the land could be accessed or used, the type of sports which could be played and when and where, and the terms on which children or dogs could come onto the land. Similarly, the local authority would clearly be entitled to withdraw the licence permanently or temporarily. Thus, if and when it lawfully is able, and decides, to devote the land to some other statutorily permitted use, the local authority may permanently withdraw the licence; and if, for instance, when the land is still held under section 12 (1), the local authority wants to hold a midsummer fair to which the public will be charged an entrance fee, it could temporarily withdraw the licence.

iv. 24 I agree with Lord Carnwath [JSC] that, 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 seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for twenty years. 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."

35. In my view what is clear from these passages and the complementary concurring judgment of Lord Carnwath is a focus on the power pursuant to which the land was held by the local authority so as to understand whether that power comprehended recreational use by the public. This also underpinned the disapproval and departure from the House of Lords' decision in R (On application of Beresford) v Sunderland City Council [2004] 1 AC 889 on the question of statutory authority. When the power under which the authority holds the land comprehends recreational use as a purpose then recreational use by the public will be "by right", not "as of right". I am however unable to detect in these passages any support for the proposition that appropriation pursuant to Section 122 of the 1972 Act from one power and purpose to another can be inferred from the authority's manner of dealing with or managing the land. Lord Justice Sullivan's conclusions in paragraph 37 and Lord Neuberger's conclusions in paragraphs 21 to 24 are focused on the power under which the land was held and whether it conferred a statutory right to be on the land using it for recreation. That is a wholly different proposition from the suggestion that an authority can - through management actions - be inferred to have appropriated the land from being held under one power to another.
36. The second issue which was raised before the Inspector as a basis on which the land was used "by right" rather than "as of right" engages the aspect of the decision of the House of Lords in Beresford which remains good law, namely that use under the implied licence of the land is use "by right" and defeats a claim to use "as of right".
37. The arguments were summarised by Lord Bingham in his speech at paragraph 5 as follows:

i. "5 I can see no objection in principle to the implication of a licence where the facts warrant such an implication. To deny this possibility would, I think, be unduly old-fashioned, formalistic and restrictive. A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission. This may be done, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants' use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use."

38. In a similar vein, Lord Walker summarised the argument at paragraph 83 of his speech as follows:

i. "83 In the Court of Appeal Dyson LJ considered that implied permission could defeat a claim to user as of right, as Smith J had held at first instance. I can agree with that as a general proposition, provided that the permission is implied by (or inferred from) overt conduct of the landowner, such as making a charge for admission, or asserting his title by the occasional closure of the land to all-comers. Such actions have an impact on members of the public and demonstrate that their access to the land, when they do have access, depends on the landowner's permission. But I cannot agree that there was any evidence of overt acts (on the part of the City Council or its predecessors) justifying the conclusion of an implied licence in this case."

39. The Inspector in his decision placed particular reliance on the judgment of His Honour Judge Owen QC in R (Mann) v Somerset County Council [2012] EWHC 814. That case concerned land which was associated with a public house where the claim to establishment of village green status on the associated field was defeated by an implied licence argument based upon occasional use by the owners of the land for beer festivals and funfairs for which the public were charged an admission fee.
40. The relevant passages from the judgment of His Honour Judge Owen QC are as follows:

i. "71 From these observations, which I take as authoritative guidance on conduct by an owner which may count as an overt act or as a relevant or demonstrable circumstance sufficient in law to allow an inference of permission, it appears that the owner must make it clear that the public's use of the land is with his permission and that that may be shown by excluding the public on occasional days (per Lord Bingham, para 5; and see para 79 per Lord Walker); he must do something on his land to show that he is exercising his rights (as owner) over his land and that the public's use is by his leave (para 6); there must be a positive act by owner qua public though a notice is not necessary provided the circumstances relied on allows the inference to be drawn (para 59); implied consent by taking a charge for entry or similar overt act communicated to the public is sufficient without the need for express explanation or notice (para 75); such conduct need only occur from time to time (I should add, perhaps once only during the period under scrutiny) (para 76); such conduct will be expected to have an impact on the public and show that when the public have access (I should add, to all or part of the land) they do so with the leave or permission of the owner (para 83).

ii. .....

iii. 73 It was common ground that the acts of the owner in question in holding such festivals constituted an act of exclusion albeit the argument concerned the effect of an exclusion which affected part only of the land and not of the whole. Nonetheless, there was a manifest act of exclusion by the owner. In the absence of clear reason to suppose otherwise an act by the owner relating to part of the land, as occurred in this case, may be taken to be referable to the whole of the land.

iv. 74 In the present case the land in question was privately owned and was known (or must be taken to have known) to be so by the local inhabitants. There was no act of encouragement to them by the owner to use the land. Nothing was done by the owner which could, or has been suggested did, reinforce any impression which the local inhabitants now assert that their use was as of right. On the contrary, the owners have demonstrated by positive acts from time to time that, as owners, they were exercising and retaining their rights over their land by excluding all comers, subject to payment of an entrance charge. The owners acted in this way without regard to the local inhabitants' views and without consultation or so much as a 'by your leave'. They conducted themselves as an active landowner and, as the local inhabitants might reasonably be taken to have appreciated, as though the local inhabitants had no right over the land.

v. 75 It is difficult to see, viewed objectively, how the local inhabitants could not have appreciated that in continuing to use the land they were doing so with the (implied) permission of the owner. The claimant's arguments seriously undervalue the nature and quality of the owner's acts and fail to recognize the significance of the exercise of the owner's right to exclude, albeit expressly over part of the land and on occasions only.

vi. .....

vii. 91 It follows that careful consideration must also be given to the nature and effect of the owner's conduct relating to his use of the land during (any date within) the period in question. This case concerns an owner who evidently maintained a commercial interest in making substantial use of his land as and when he wished. A landowner is not to be lightly deprived of his exclusive right to use his land, especially in a case where it is proved or admitted that the owner has made use of his land during the period in question and where that use could not reasonably be regarded (or dismissed) as insignificant and involved an act of exclusion. It is universally recognized that the (mere) erecting of notices offers little or no protection to the owner in respect of his maintaining exclusive right to use his land. The law of England and Wales does not expect or require an owner who wishes to maintain his exclusive right to use his own land to erect and maintain barriers or fencing to prevent others from going onto the land. Equally, the law does expect an owner to resist that which appears to be use of his land by others and the assertion of a right to do so. In those circumstances the owner is expected 'to do something'. In this case the owner 'did something', as owner, which showed to the reasonable onlooker that the right to exclude was being exercised. The significance of the owner's use of the land could not reasonably have been mistaken by the local inhabitants at the time. In my judgment, it was not necessary for the owners to do more than they did. The inspector's conclusion at paragraph 2.40 of the supplemental report was open to him in the circumstances."

41. In my view these passages emphasise the fact-sensitive nature of the evaluation required. Equally, they illustrate the importance in that case of the fact that the land was in private ownership and - moreover - in the hands of a private owner who was using the land to further his own commercial interests albeit on an occasional basis. The nature and quality of those occasional uses which were consonant with the commercial purpose for which the owner occupied the land clearly also had an important bearing on the Inspector's and the court's evaluation of the owner's conduct in that case.
42. conclusions
43. It will be clear from the legal analysis which I have set out above that in my judgment neither Oxy-Electric nor Barkas are authority for the broad proposition employed by the Inspector that an appropriation of land to open space use could be simply inferred from the planting of trees on the land in 2006/2007. There is in my view a clear legal misdirection in paragraphs 97 and 98 of the Inspector's decision. Barkas is not authority for the proposition that land can be appropriated without any evidence of the council having considered whether that land was no longer required for the use for which it was held and that appropriation can be simply deduced from their management of the land. Neither, in my judgment, is Oxy-Electric or Barkas authority for the proposition that appropriation can be inferred or can occur without the council considering whether the Section 122 test had been met. The Inspector's references to the appropriation of the employment land development purpose being quietly forgotten goes nowhere near meeting the test which is set in Section 122 of the 1972 Act.
44. That legal misdirection suffices in my judgment to be fatal to the Inspector's reasoning in this case. However I do not wish to depart from this point without making three further, to my mind, important observations.
45. First, I am far from satisfied that the Inspector's conclusions were, in truth, open to him on the facts which were before him in any event. First, it is clear from the facts there was a positive appropriation by the council from open space to employment use. Secondly, it is clear from the evidence set out in the decision letter and recorded in my judgment above that the employment and link road use of the land was not "gradually forgotten". That prospective employment use was in fact actively prosecuted through several iterations of the council's forward planning process along with the proposal for the highway link. Thirdly, and associated with the second point, I am driven to contemplate what the answer would have been if, in the forward planning process, the council had been asked whether or not the allocation was in fact no longer required for employment purposes. That of course is the relevant test under Section 122 of the 1972 Act. I have little doubt that they would have replied, probably emphatically, that it was still required for employment uses. Indeed, that proposition seems to have been tested in the 2005 Local Plan process and the Inspector had concluded, on the evidence which was before him, that it was still required and there were prospects of the development occurring within the hearing of that plan. Thus, the requirement to use the land for employment use has been promoted by the council as a planning requirement throughout. Fourthly, including the land which is in dispute within a wider landscaping scheme for the whole of the Eastern Fields was, at most, equivocal. As set out above, the other planning evidence clearly demonstrated a continuing requirement for the land for employment purposes and for the highway.
46. Thus, a finding on the material which was before the Inspector that appropriation could be inferred was not in my judgment justified. That conclusion contains within it the inference or implication that it could be implied from the council's conduct that the land was no longer required, that being the test under Section 122 of the 1972 Act. Such a conclusion was wholly at odds with the conduct of the council as a local planning authority.
47. The second point which I wish to make before departing from this part of the case is that in her written submissions Miss Busch sought to contend that as a potential fall-back position the decision could be supported on the basis that this was a temporary use. The difficulty with that proposition is that it will be clear from the passages which I have quoted above that the Inspector expressly contemplated this and, quite correctly in my judgment, rejected it in paragraph 88 of his decision letter on the basis that there was no evidence that in fact the council had decided to do that. This argument is not therefore available. I have not had to go on to determine Mr Edwards' strict and narrow construction of Section 122 (2) set out above which he contended was as a matter of law, would not support the lawful temporary use of the land in this case in any event.
48. The third point which I wish to address is that it is evident from, in particular, Barkas that the focus of inquiry, at least to some extent, could and should have been on the power under which the council did in fact hold the land when it appropriated it from open space use to the purpose of employment, development and highway improvement. What rights the public may have under those statutory powers has not been in any way explored in the submissions before me or indeed by the Inspector. I cannot therefore conclude upon that issue but it is self-evident from the authorities that it is a matter which requires investigation.
49. For the reasons which I have set out, but principally the legal misdirection which I have identified in the Inspector's report (paragraphs 97 and 98), ground 1 succeeds.
50. Turning to ground 2, the reasoning of the Inspector in relation to the arguments raised about implied licence in paragraph 112 of his decision letter is little more than an assertion that the eleven visits of the circus and the three visits of the funfair - two events in twenty years - must have alerted a reasonable person to the fact that they were using the land and all of it by permission. This was an assertion which, it is clear, was based on Mann. However, whilst it was legitimate of the Inspector to have regard to that case in formulating his conclusions and entirely proper for him to do so, I accept the submission that his conclusions were reached apparently without regard to two key and distinct features in the case which the extracts from Mann which I have set out above meant should have been central to his resolution of the issue in relation to implied licence.
51. Those issues were, as I have set out above, first, the fact that the land was here in public ownership as distinct from the private ownership of the land which bore heavily on the judgment in that case. Secondly, the nature and character of the events were further important and distinct material considerations. Those events - although charged for - were at least arguably not inconsistent with a public entitlement to use the land. This again is in sharp contrast with the commercial uses of the land, consistent with the trading of the public house in Mann. Both of these were therefore important circumstances bearing upon whether the owner in this case had clearly signified, by allowing this occasional activity, that at all other times the use has been undertaken by licence. They are two features which do not register at all in the Inspector's decision-making process. That was in my view an error of law by way of leaving out of account material considerations which suffices for the claimant to succeed in relation to ground 2.
52. In the light of that conclusion, I do not need to determine either whether the claimant was correct that if the land was held to facilitate employment development the council would have had no power to grant a licence or permission for recreational use or alternatively whether Mann was correctly decided. The findings which I have reached in relation to the Inspector's failure to take account of two key material considerations in relation to the implied licence case is sufficient to justify a conclusion that his decision was based on an error of law.
53. conclusions
54. For the reasons which I have set out above, the Inspector's decision in this case was unlawful and cannot stand.