After a series of high profile cases in the High Court, Court of Appeal and Supreme Court in the last 2 years, together with recent legislative changes which appeared to reduce the chances of land acquiring Town or Village Green (TVG) status, the first high profile TVG case to be heard in the High Court in 2015 offers a glimmer of hope.
As promised on LinkedIn in July, I said I would post the decision of Mr Justice Dove in my long running case of R (Goodman) v Secretary of State for the Environment, Food and Rural Affairs once it had been approved. And here it is.
In summary the Inspector rejected the application to register following a public inquiry in 2013 because the landowner, Exeter City Council
- had “impliedly appropriated” land from employment use so that the land became held as recreational open space (and therefore subject to a public trust) and that any recreational use was “by right”; alternative);
- as the city council had allowed fairs and a circus on part of the land, any recreational use of it for sports and pastimes had been by implied permission following the decision in R (Mann) v Somerset County Council EWHC B14.
Dove J quashed the decision on the grounds that;
- for an “appropriation” to have occurred (implied or otherwise), there must be evidence that the local authority directed its mind to, and answered, the statutory test for appropriation set out in s.122(2A) of the Local Government Act 1972. Simply managing land as recreational open space was not of itself sufficient to give rise to an implication that an appropriation had occurred; and
- relying upon the decision in Mannitself, Dove J emphasised the fact sensitive nature of any inquiry. Further the status of the application land publicly owned (as opposed to privately owned as was the case in Mann) was a material consideration which the Inspector failed to have regard to bearing in mind the use put forward by the landowner was not inconsistent with a public entitlement to use the land.
It is clear that Goodman provides a number of potential new lines of argument for those seeking to register land as a TVG especially when facing a local authority landowner who seeks to rely upon Mann.
Importantly Dove J emphasised that where land is held by a public body the initial focus must also establish the power under which any land is held.
I represented the Applicants at public inquiry in 2013 (instructed direct) and in 2015 was led by Douglas Edwards QC of Francis Taylor Buildings in the successful Judicial Review. We were instructed by Richard Buxton Environmental and Public Law for the Judicial Review claim which was initially stayed pending the outcome in Barkas v North Yorkshire County Council  UKSC 31.
Exeter City Council did not participate in the Judicial Review.
Please contact my clerks for further details on (01392) 285200 or firstname.lastname@example.org
I am happy to be instructed by members of the public direct on TVG matters in appropriate cases.