Naylor v Essex County Council [2014] EWHC 90 (Admin)

“9. A local authority may … (a) acquire by agreement and for valuable or nominal consideration … any right or easement in or over any open space … and (b) undertake the entire or partial care, management, and control of any such open space … 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 … to convey or to agree with reference to any open space … . 10. A local authority who have acquired control over any open space … shall … subject to any conditions under which the … control was acquired … (a) hold and administer the open space … in trust to allow and with a view to, the enjoyment thereof by the public as an open space … and under proper control and regulation and for no other purpose; and (b) maintain and keep the open space … 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. … 12. A local authority may exercise all the powers given to them by this Act respecting open spaces and burial grounds transferred to them in pursuance of this Act in respect of any open spaces and burial grounds of a similar nature which may be vested in them in pursuance of any other statute, or of which they are otherwise the owners.”

“164. 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.”

“Did ECC in deciding, and the inspector in advising, that the use of Mill Lane Green for lawful sports and pastimes was “by right” and not “as of right” err in law or fail to take into account relevant and potentially significant facts and matters?”

“9.108 … Mrs Pudney Company Secretary of the holding company of Silverbrook and a local resident. agreed that this site in the past, before the Council gave up maintaining it, had been a regularly well mown site. She confirmed that her family did not acquire it until 2009. Before that it was a well tended site. She had never actually seen anyone mowing it, but it was well tended. But then, after her family’s company had taken over, about a year ago she started to write to the District Council to find out why they were doing this work. There was correspondence with Tendring District Council in the documentary material which the Objector had produced, including in particular a letter from the Horticultural and Transport Services Manager of the District Council dated 8th December 2011. However she or her company had not really managed to obtain further information from the District Council than what was shown there. She added that she believed that Tendring District Council had done the mowing of the ground of the application site, during the period when they undertook it, by agreement but she had not managed to obtain a copy of that agreement. The only information in writing which had been obtained from Tendring District Council was the letter from Mr Mills of that Council dated 8th December 2011. That had confirmed that the District Council had maintained the area of the application site for the previous 22 years. The maintenance of the area had formed part of the Frinton and Walton Grounds Maintenance Contract, which had first been let under compulsory competitive tendering in 1990. The only maintenance that had been carried out on the land had been grass cutting. Mr Mills in that letter had been unable to confirm any maintenance operations prior to 1989. Mr Mills of the District Council had said that he had no knowledge of the statutory powers exercised by TDC, as he had not been party to the formulation of the tender documents. … 11.49 The question therefore logically arises as to what was the basis on which Tendring District Council were mowing and maintaining this land for all of those years, including effectively the whole of the relevant years for present purposes, as something which looked like, and was de facto available as, a piece of public open space or park land, or indeed a town or village green. 11.50. It is somewhat unfortunate that Tendring District Council did not provide any evidence or information aimed directly at the matters of relevance and concern to the present determination. This was not for want of trying on the part of the parties, both of whom tried (and succeeded to a limited extent) to obtain relevant information from the Council. In the case of the Applicant the information obtained was from telephone conversations which Mrs Hatwell had been able to have with two different officers of the District Council. In the case of the Objector almost the only information obtained was in a letter of 8th December 2011 from one of the two gentlemen (Mr Trevor Mills) who Mrs Hatwell had been able to speak to. 11.51. Fortunately the information obtained via both these routes was mutually consistent, and none of it was disputed between the parties. It seems clear that the District Council have maintained the land, by regularly mowing it, since at least 1989/90, and probable that there had been a much longer term arrangement, going back to before 1974. It also seems clear, and uncontroversial, that the Council first erected a dog bin on the land in 1998, and replaced it with a new one in 2007. It appears to be undisputed that the Council regularly picked litter from the land. 11.52. Why did the Council do those things? It seems clear that this was not the result of some mistaken belief on the Council’s behalf that it owned the site (and in any event no-one suggested this explanation). I appreciate that this was a difficult area of the case for the Applicant (without legal representation) to deal with. However in my view Counsel for the Objector (Mr Cosgrove) was right in arguing that the District Council – itself a ‘creature of statute’, as the courts like to say – must be assumed, unless there is clear contrary evidence, to have been doing these things properly and lawfully, in pursuance of some statutory power enabling it to do so. 11.53. The Inquiry’s attention was drawn to the powers in Section 9 of the Open Spaces Act 1906, which enable Councils to “undertake the entire or partial care, management and control” of areas of open space, even when the Council does not own them. It is then clear from Section 10 of the same Act that the Council, having acquired control (or some higher interest), holds and administers the land concerned “in trust to allow, and with a view to, the enjoyment thereof by the public as open space ... .”

“… local inhabitants can be said to have a statutory right to use land [which the local authority owns] which is made available to the public for the purpose of lawful sports and pastimes by a local authority under a public law duty to use the land for the sports and pastimes until such time as it formally appropriates it to some other statutory purpose. This is a significant difference in the position of a private landowner who may be subject to planning controls, change the use of their land at will Emphasis added. . To bring the “by right” use to an end the local authority would have to appropriate it to another purpose inconsistent with those rights.”

“Was the requirement that the relevant use must have been an uninterrupted use for the 20-year period ending with the date of the application on 11 April 2011 satisfied and, if not, was it possible to disregard the period of non-public use between 14 June 1993 and a date about 3 months later?”

“6 Power to make schemes for carrying out work (1) Where a coast protection authority propose that coast protection work (not being work of maintenance or repair) should be carried out on any land and it appears to the authority- (a) that the work cannot be carried out except in the exercise of compulsory powers, . the authority may prepare a scheme (hereinafter referred to as a “works scheme”) for the carrying out of the work. (2) The works scheme shall- (a) … (b) Specify the work (if any) to be carried out on land not so vested or proposed to be acquired; (3) A works scheme shall not have effect unless confirmed by the Minister in accordance with the following provisions of this Act.” (1) Where a coast protection authority propose that coast protection work (not being work of maintenance or repair) should be carried out on any land and it appears to the authority- (a) that the work cannot be carried out except in the exercise of compulsory powers, . the authority may prepare a scheme (hereinafter referred to as a “works scheme”) for the carrying out of the work. (2) The works scheme shall- (a) … (b) Specify the work (if any) to be carried out on land not so vested or proposed to be acquired; (3) A works scheme shall not have effect unless confirmed by the Minister in accordance with the following provisions of this Act.” 49 Interpretation “coast protection work” means any work of construction, alteration, improvement, repair, maintenance, demolition or removal for the purpose of the protection of any land, and includes the sowing or planting of vegetation for the said purpose.” 78. It is relevant to compare these provisions with statutory provisions that enable movement controlling orders to be made so as to prevent the use or movement within defined areas so as to prevent, control or eradicate foot-and-mouth disease. This is undertaken by orders made under the Animal Health Act 1981. Section 23 of that Act states in part: “23. Orders as to infected places and areas The Ministers may make such orders as they think fit for all or any of the following purposes: (a) for prescribing and regulating the publication of placards, handbills or otherwise in the immediate neighbourhood of a place or area declared infected, of the fact of such declaration; (b) for prohibiting or regulating the movement of animals and persons into, within, or out of an infected place or area; (c) for prohibiting or regulating the isolation or separation of animals being in an infected place or area; (d) for prohibiting or reglating the removal of carcases, fodder, litter, utensils, pens, hurdles, dung or other things into, within, or out of an infected place or area; … .” (a) for prescribing and regulating the publication of placards, handbills or otherwise in the immediate neighbourhood of a place or area declared infected, of the fact of such declaration; (b) for prohibiting or regulating the movement of animals and persons into, within, or out of an infected place or area; (c) for prohibiting or regulating the isolation or separation of animals being in an infected place or area; (d) for prohibiting or reglating the removal of carcases, fodder, litter, utensils, pens, hurdles, dung or other things into, within, or out of an infected place or area; … .”

“31. The essential feature of prescription for present purposes is that, in order to establish a right by prescription, a person must show at least 20 years uninterrupted enjoyment as of right, that is nec vi, nec clam, nec precario (“not by force, nor stealth, nor with the licence of the owner”), as Lord Walker put it in R (Lewis) v Redcar and Cleveland Borough Council [2010] 2 AC 70, para 20), of that which he now claims to be entitled to enjoy by right. 32. An issue in the present appeal is whether the right to commit a nuisance by noise can be acquired by prescription. … 36. As that discussion suggests, there appear to be three possible problems with the notion that such a right could be obtained by prescription. The first is that the 20 years can only run when the noise amounts to a nuisance. As Thesiger LJ giving the judgment of the Court of Appeal, agreeing with Sir George Jessel MR, put it in Sturges at 11 Ch D 852, 863-864, “[c]onsent or acquiescence of the owner of the servient tenement lies at the root of prescription, and … an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence.”

“The crucial question on the issue of interruption is whether a situation where access to land is unavailable to members of the public by reason of the carrying out of the works on the land under statutory authority in section 15(6) of the CA which applies where access is prohibited by reason of any enactment. The defendant submits that it plainly does not and that the contrary is not arguable. Section 15(6) is directed at “statutory closures”: see Hansard, House of Lords 28th November 2005, column 43. Matters are expressed (correctly, it is submitted) in the following way in paragraph 8.10.61 of DEFRA’s “Guidance to commons registration authorities and the Planning Inspectorate for the pioneer implementation: “any periods of statutory closure of land must be left out of account when considering whether the twenty years’ use criterion has been satisfied. Statutory closure occurs where access to the land was forbidden because of special restrictions imposed by a local authority or Government. An example of this might be where the area of land was closed by order during an outbreak of foot-and-mouth disease.”

“[Mr Naylor’s] reliance on the statutory disregard (in section 15(6) of the 2006 Act) of any period during which access to the land was prohibited to members of the public by reason of any enactment is misplaced. That provision relates to situations where an enactment specifically imposes or empowers the prohibition of access, such as a statutory closure of land in response to an outbreak of foot-and-mouth disease, and does not apply more widely to encompass the present case (in which flood defence works were carried out by the Environment Agency) (sic).”

“Did the inspector in undertaking the inquiry and ECC in considering and deciding the application adopt a fair procedure and give the applicant a fair opportunity of presenting the applicant’s case in relation to the “as of right” and “interruption” issues?”

“Did ECC have the power to reconsider its refusal decision dated 22 February 2013 or to consider correcting a mistake under section 19(2)(a) of the CA following that refusal decision?”