Allaway & Anor, R (on the application of) v Oxfordshire County Council & Ors [2016] EWHC 2677 (Admin)

Case No CO/811/2016[2016] EWHC 2677 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/10/2016
Before
THE HON. MRS JUSTICE PATTERSON DBE
Between
THE QUEEN on the application ofClaimants(1) CHARLES FRANCIS NIGEL ALLAWAYClaimant(2) ROSEMARY ANNE POLLOCKClaimantOXFORDSHIRE COUNTY COUNCILDefendantROBERT STEWARTInterested Party
Douglas Edwards QC and Philip Petchey (instructed by Walker Morris) for ClaimantsStephen Morgan (instructed by Oxfordshire County Council) for DefendantHearing Hearing date: 11 October 2016
Judgment

Introduction

[1]This is a rolled-up hearing into an application for judicial review of the decision made by Oxfordshire County Council, the defendant and registration authority, to register an agricultural field of about 14 acres as a town and village green under section 15(2) of the Commons Act 2006.[2]The claimants own the application site in which Gladman Developments Limited had an interest.[3]On 18 April 2013 the interested party made an application to the registration authority to register the application site as a town or village green (TVG). There were objections to the application for registration from the claimants and Gladman Developments.[4]The registration authority instructed a barrister, Dr Charles Mynors, to hold a public inquiry, prepare a report and make a recommendation. He held a public inquiry between 16 and 24 March 2015. He issued a report in September 2015. He recommended that the land be registered as a TVG.[5]In a letter dated 16 October 2015 the objectors made further representations in respect of the inspector’s report which he considered in a supplementary report dated 30 October 2015. The inspector did not alter his recommendation to the registration authority that the land be registered as a TVG.[6]At a meeting held on 30 November 2015 the Planning and Regulation Committee resolved to approve the inspector’s recommendation. The land has not been registered pending the outcome of this judicial review.[7]On 15 April 2016 Hickinbottom J refused permission on the papers.[8]The application for judicial review was renewed and, on 20 May 2016, Cranston J vacated a renewal hearing listed on 25 May and adjourned the renewed application for permission into court to be listed as a rolled-up hearing and made directions.[9]The land concerned is known as Humpty Hill, Faringdon.[10]The grounds of challenge are: i) That the inspector applied an inappropriate discount for use of the perimeter paths; ii) That the inspector failed to properly consider and apply the qualifying requirement that the use needed to be by a significant number of those in the locality.[11]The defendant submits that: i) The inspector assessed the evidence of user on how it would have appeared to a reasonable landowner; ii) The inspector was entitled, on the evidence, to conclude that the requirement for a significant number of inhabitants to be from the locality was met; iii) Even if there is some error of law on the part of the inspector on ground 2 the outcome would not have been substantially different. The court is invited to exercise its power under section 31(3C) Senior Courts Act 1981.

Legislative framework

[12]Section 15 of the Commons Act 2006 reads:
“15. Registration of greens (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), (3) or (4) 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. (3) This subsection applies where— (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; (b) they ceased to do so before the time of the application but after the commencement of this section; and (c) the application is made within the relevant period. (3A) In subsection (3), ‘the relevant period’ means— (a) in the case of an application relating to land in England, the period of one year beginning with the cessation mentioned in subsection (3)(b); (b) in the case of an application relating to land in Wales, the period of two years beginning with that cessation. (4) This subsection applies (subject to subsection (5)) where— (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; (b) they ceased to do so before the commencement of this section; and (c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b). (5) Subsection (4) does not apply in relation to any land where— (a) planning permission was granted before 23 June 2006 in respect of the land; (b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and (c) the land— (i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or (ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes. (6) In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and (4)(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’….” (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. (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; (b) they ceased to do so before the time of the application but after the commencement of this section; and (c) the application is made within the relevant period. (a) in the case of an application relating to land in England, the period of one year beginning with the cessation mentioned in subsection (3)(b); (b) in the case of an application relating to land in Wales, the period of two years beginning with that cessation. (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; (b) they ceased to do so before the commencement of this section; and (c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b). (a) planning permission was granted before 23 June 2006 in respect of the land; (b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and (c) the land— (i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or (ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes. (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’….”
[13]Section 22 of the Commons Registration Act 1965 (as amended by the Countryside and Rights of Way Act 2000) reads:
“(1) In this Act, unless the context otherwise requires…— … ‘town or village green’ means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or which falls within subsection (1A) of this section. (1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either— (a) continue to do so, or (b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.” … ‘town or village green’ means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or which falls within subsection (1A) of this section. (a) continue to do so, or (b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.”
[14]Section 31 of the Highways Act 1980 reads:
“(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.”

The inspector’s first report

[15]The inspector recorded that he had held an inquiry on 16 to 19 and 24 March 2015. He had also visited the land and explored Faringdon.[16]In support of the application there had been 15 live witnesses and some 56 written statements from others in support of the application.[17]The objectors, who are the claimants in the current proceedings, called 8 witnesses to give oral evidence, each of whom had produced a written statement. There were also further written statements from a number of witnesses in support of the objectors which the applicant, the interested party in the instant proceedings, accepted. Those were, therefore, accepted by the inspector and given the same weight as if they had attended and been subject to cross-examination.[18]The inspector set out the statutory requirements that he needed to be satisfied about and their application to the case before him. He said, in paragraphs 30 to 32: “30. Section 15(2) of the 2006 Act thus makes it clear that, for the Application Land to be eligible to be registered as a town or village green by virtue of that subsection, it must have been used throughout the period of 20 years ending on the date of the application for registration:• by a significant number of the inhabitants of a locality or of a neighbourhood within a locality, and• for lawful sports and pastimes,• as of right. 31. Where land has been used in that way for twenty years, but then ceases to be so used, for example because the landowner explicitly permits its use by local people,• where the cessation occurs before 1 October 2013, the land will still be eligible for registration – under subsection 15(3) of the 2006 Act as originally enacted – provided the application for registration is made within two years of the cessation;• where the cessation occurs after 1 October 2013, the land will still be eligible for registration – under subsection 15(3) as amended – provided the application is made within one year. 32. In this case, the Application was made on 18 April 2013. To justify registration under subsection 15(2), therefore, it must be shown that the Application Land was used in a qualifying manner for 20 years starting on 18 April 1993.”• by a significant number of the inhabitants of a locality or of a neighbourhood within a locality, and• for lawful sports and pastimes,• as of right.• where the cessation occurs before 1 October 2013, the land will still be eligible for registration – under subsection 15(3) of the 2006 Act as originally enacted – provided the application for registration is made within two years of the cessation;• where the cessation occurs after 1 October 2013, the land will still be eligible for registration – under subsection 15(3) as amended – provided the application is made within one year.[19]He then reviewed what was involved in use of an area of land for “lawful sports and pastimes.”[20]The inspector continued at [38]:
“The House of Lords in Sunningwell established that the use of land ‘as of right’ means use that is not by force, by stealth or by permission. Whether a use of land is ‘as of right’ must be judged from the perspective of ‘how the matter would have appeared to the owner of the land’ – a question which must be assessed objectively. Thus in Sunningwell itself, twenty years’ use of glebe land for recreation by residents, the majority of whom came from a single locality, was treated as an effective assertion of village green rights.”
[21]Having set out the approach the inspector then summarised, first, the non-contentious evidence about the application land. He included the following: “42. The Application Land adjoins the western edge of the built-up area of Faringdon, on the north side of the Highworth Road. It is approximately 5.6 hectares (14 acres) in area, rectangular in shape, and slopes gently down from a thick hedge along the north side of the Road. … 45. The Application Land is currently a grass meadow, with no particular features other than round the edge. There is a pedestrian entrance at the south-east corner, at the uphill end of the field, enabling access from the Highworth Road via a kissing gate. There is also at this point a sign containing a map of the Application Land and stating: ‘NOTICE. The public have permission to enter this land on foot for recreation. This permission may be withdrawn at any time.’ There is no access for vehicles or horses at any point along this southern boundary. …47. Between the two kissing gates, running up the eastern side of the Application Land, is a public right of way on foot. This is clearly well used; and I observed people walking up and down this route with and without dogs.48. There is also a well-worn pedestrian route running roughly around the perimeter of the Land, but a few metres in from the edge – overlapping with the public right of way along the eastern boundary. This path is referred to in this report, as it was at the inquiry, as ‘the circular path’ (or track), as it cuts the corner at each of the four corners of the field – particularly at the north-western corner, which is slightly boggy. It also cuts the corner by each of the two gates – that is, it appears that those walking round the field, having initially gained access to it from one gate, go up one side and down the other, making a circular route, presumably leaving by the same entrance as they arrived. The result is that, by each of those two gates, there is a path leading to the circular path in each direction, and the circular path itself cuts the corner, so that the walk round the field can be started or finished at either gate, and enjoyed in either a clockwise or anti-clockwise direction.” ‘NOTICE. The public have permission to enter this land on foot for recreation. This permission may be withdrawn at any time.’[22]The inspector then reviewed the documentary evidence before going on to set out evidence in support of the objections to registration.[23]In dealing with that, he said at [62]:
“It is customary in inspectors’ reports on village green inquiries to consider, first, the evidence produced by the Applicant. However, on reflection, in view of the oft-repeated advice from the courts that the key in such cases is always to consider first how the matter would have appeared from the perspective of the landowner, I am starting with the evidence of the owners of the Application Land, and those advising them or working with them.”
[24]He then reviewed the evidence given by Mrs Pollock and the use of the land as given in evidence from the owners’ family. Others at the inquiry on behalf of the objectors gave evidence. Next, he took into account statements from those on behalf of the objectors who could not attend at the inquiry.[25]The inspector then summarised the case for the applicant, and the evidence in support of the case, before coming to his summary and conclusions.[26]First, he dealt with the general pattern of use of the land:
“160. There can be no doubt that, throughout the relevant period, since 1991, the general use of the Application Land has been as a grass meadow. That is, the grass has grown, getting gradually longer, and was cut each year, baled, and taken away as a hay crop. The relevant agricultural processes would have each taken several hours on several days over the course of a week or two, during the summer. There has been almost no other use of the Land for other forms of agriculture – such as the growing of wheat, vegetables, or other crops – and in particular no use that would have required the Land to be ploughed. It was, in laymen’s terms, simply a grass meadow. 161. Most of the time, the growing grass presented no obstacle to the use of the Land for general recreation – including, in particular, walking round the various paths (that is, the public footpath between the two gates, and the circular path, and the less well-used outer path hard up against the edge of the field). The Owners, members of their family, and those working for them, had therefore not surprisingly seen people using the paths. Those visiting the Land in connection with the housing proposal had also seen people using the paths. One or two had occasionally seen people not on the paths. As the grass became longer, it became more difficult to walk elsewhere.”
[27]He referred to the pattern of use as follows: “164. This pattern of use, as perceived by the Objectors, generally fits with the pattern of uses noted by those giving evidence, oral or in writing, in support of the Application. This largely focussed on:• walking (with or without a dog);• children playing, and informal football;• less strenuous activities, such as bird watching, nature study, enjoying the view, and generally ‘hanging out’, ‘lounging about’ or ‘chilling’; and• seasonal activities – blackberrying, other fruit gathering, sledging and tobogganing. 165. It appears that the egg-rolling, although much talked about, probably occurred only on one or two occasions (in 1993 and 1996) during the relevant period. And there may have been a battle re-enactment on one occasion. 166. Those supporting the Application indicated that these activities took place all over the Land; the walking was predominantly on the public footpath and the circular path, but by no means exclusively so. And the agricultural activities had not significantly interfered with the recreation – as the grass became taller, it would be more difficult to go through, but children and dogs did, and sometimes adults. While the harvesting was taking place, those indulging in recreation on the Land simply kept out of the way; and they had not been told to desist. 167. I consider, on the balance of probability, that walking took place predominantly but not exclusively on the circular path; to a lesser extent on the outer path – which must have been made by someone – and to some extent also elsewhere on the Land. I myself saw some people using the centre of the field, and I should be very surprised if some people did not from time to time cut across the middle, if only for variety. And of course children and dogs tend to go all over a field; and adults will sometimes follow them. 168. Other activities – such as relaxing, enjoying the view, children playing, sledging – clearly took place all over the Land.”• walking (with or without a dog);• children playing, and informal football;• less strenuous activities, such as bird watching, nature study, enjoying the view, and generally ‘hanging out’, ‘lounging about’ or ‘chilling’; and• seasonal activities – blackberrying, other fruit gathering, sledging and tobogganing.[28]He concluded: “173. I thus conclude that there was a low level agriculture on the Application Land throughout the period from 1991 to 2013. This took the form of:• probably, the grazing of ten or so dry cattle for a few months in 1996 and 1997; and• the taking of an annual hay crop in other years. 174. I also conclude that there was abundant use of the Land throughout the period for informal recreation, taking the form of:• walking (with or without a dog);• children playing, and informal football;• less strenuous activities, such as bird watching, nature study, and enjoying the view; and• seasonal activities (notably blackberrying and other fruit gathering, and sledging and tobogganing). 175. The principal activity, walking, took place primarily on the paths, but not exclusively so. 176. I also consider that the owners of the land must have been aware – insofar as they turned their minds to it – that such recreational activities were taking place, and took only cursory steps to prevent or restrict it. Further, insofar as there was any conflict between the agriculture and the recreation, it was very low level, and neither significantly impeded the other.”• probably, the grazing of ten or so dry cattle for a few months in 1996 and 1997; and• the taking of an annual hay crop in other years.• walking (with or without a dog);• children playing, and informal football;• less strenuous activities, such as bird watching, nature study, and enjoying the view; and• seasonal activities (notably blackberrying and other fruit gathering, and sledging and tobogganing).[29]The inspector assessed the consequences in law from paragraph 178:
“178. Firstly, this is a classic case of land being used for ‘dog walking and playing with children’ which may be, in modern life, the main function of a village green. 179. Second, the use of the paths on the Application Land, with or without dogs, may be partly attributable to an actual or emerging right of way – actual, in the case of the public footpath up the east side of the Land, and possibly emerging in the case of the circular path around the other sides. However, that applies only in the case of those entering at one gate and leaving at the other, in the course of a longer walk (or jog) from A to B. 180. It seems to me likely that many of those living broadly to the south of the Land will have entered it from the Highworth Road, taken a circular walk, down one side and back up the other, and back home again. Many of those living to the north will have similarly taken a circular walk entering and leaving by the Canada Lane entrance. This is borne out not only by observation of how people use open space generally, but also by the presence of the paths cutting the corners by the two entrances – which must have been created and used by some one. 181. Thirdly, I conclude that this pattern of use is a classic example of recreation and low-level agriculture existing happily side-by-side. There is no doubt that the Owners knew, both by direct observation and from the reports of those working with and for them, that the Land was being used by people who were in effect trespassers. … 185. Fourthly, whilst the owners occasionally intervened to restrict the use of the land other than the footpath, and to prevent damage to the bales, I do think that the recreational use of the Application Land was either permitted or forbidden, until the sign was erected in 2011. Until that date, therefore, such use of the Land was ‘as of right’; after that date, it was by permission – at least in respect of those entering from the southern end of the path, and quite possibly others. 186. Fifthly, I consider that those using the Application Land are likely to have come largely from the Civil Parish of [Great] Faringdon. No doubt the [use of the] Land was predominantly from the parts of Faringdon nearest to the Land, but that will always be true in the case of any open space at the edge of a built-up area. I think it unlikely that more than a handful will have come from outside Faringdon.”
[30]Accordingly, the inspector concluded that: i) there was ample evidence showing on the balance of probability that the application land, as a whole, had been used for 20 years by the inhabitants of Great Faringdon Civil Parish for lawful sports and pastimes up to the date of the erection of the sign in 2011 and: ii) that such use had been as of right. He recommended that the application land was registered as a TVG and that the register be amended accordingly.[31]After receipt of the first report various other points were made by the objectors and responses to those points were made from the applicant. Those points were dealt with in a supplementary report from Dr Mynors.

Supplementary report

[32]Under the heading ‘The Nature of the Right Being Asserted’ the inspector said:
“16. I concluded at paragraph 186 of my main report that those using the Application Land are likely to have come largely from the Civil Parish of [Great] Faringdon, and that it was unlikely that more than a handful will have come from outside Faringdon. 17. It is pointed out by the Objectors that the population of Faringdon is around 7,121 and that the total number of those producing written evidence in one form or another was only 111; and it is said that this is not use by a significant number of the inhabitants of Faringdon. On that basis, the conduct of those using the land was not such as to bring home to the landowners that a town or village green right was being asserted. 18. The first point to make in this connection is that the 111 people who provided written evidence will in many cases have represented couples or families. In a few cases forms were completed by both husband and wife; but not in many others. And very few children completed them as well as their parents. Secondly, as in all such cases, no one suggested that those filling in the forms or questionnaires were all those who use the land – there will have been others, who could not be bothered to fill in the form, or who were out when the applicant’s representatives called. The number of those actually using the land at one time or another is thus likely to have been significantly in excess of 111 – by what factor is entirely a matter of conjecture. 19. Thirdly, as a matter of impression, this is a well used piece of land. I have seen the land on several occasions; I have read the written evidence. And I have been involved, in one way or another, in around 40 cases where land has been claimed to be a town or village green. This is one of the more convincing I have come across – purely in terms of factual evidence as to use by local people. And the landowners were hardly taken by surprise; they were well aware that the land was being used; it would have been remarkable if it had not been. 20. It is true that, as I observed in my main report, no doubt the predominant use of the Land will have been by those from the parts of Faringdon nearest to the Land, but that will always be true in the case of any open space at the edge of a built-up area. But the law has always recognised that there can be greens linked to towns as well as villages; and this seems to me to be a good example. And it cannot be the case that land has to be used equally by people from all parts of the town or village in question. 21. I also observe that arguments very similar to those now being deployed in this case were raised by the objectors in R v Staffordshire County Council (ex parte McAlpine Homes); they failed.”
[33]The inspector then dealt with the recreational use of the land and said:
“23. I noted that the principal activity, walking, took place primarily on the paths, but not exclusively so. The Objectors urged at the inquiry, and still urge, that use of the paths should be excluded altogether. 24. I expressed my view that, firstly, this was a classic case of land being used for ‘dog walking and playing with children’ which may be, in modern life, the main function of a village green, as noted in Sunningwell. 25. Second, however, I noted that the use of the paths on the Application Land, with or without dogs, may have been partly attributable to an actual or emerging right of way – actual, in the case of the public footpath up the east side of the Land, and possibly emerging in the case of the circular path around the other sides. However, that applied only in the case of those entering at one gate and leaving at the other, in the court of a longer walk (or jog) from A to B. 26. I thus considered that it was likely that many of those living broadly to the south of the Land would have entered it from the Highworth Road, taken a circular walk, down one side and back up the other, and back home again. Many of those living to the north would have similarly taken a circular walk entering and leaving by the Canada Lane entrance. This was borne out not only by observation of how people use open space generally, but also by the presence of the paths cutting the corners by the two entrances – which must have been created and used by some one. … 28. However, a moment’s observation of the way on which people use any large area of open space – particularly for walking, with or without dogs – is that they generally make their way round the perimeter of the land, often a little way in from the extreme edge. Each user will live somewhere outside the land, and will go to the chosen entry point, walk ‘round’ the land, possibly more than once, and then leave by the original entry point before returning home. Over time, such general recreational use for walking will lead to the creation of one or more worn paths. 29. Of course there may be some using a path along the edge of an open space, or possibly across the middle, simply as part of a route from one point outside the land to another. And that occurred in this case – and I have discounted such use. But that still left the bulk of walkers who were using the Land for what, to adopt the analysis of Lord Carnwath in Barkas, was the assertion of a village green right – although they would probably not have thought of it in that way. 30. I am therefore in no doubt that, although there were some people using the land to assert a public right of way, the great majority were using it for general recreation, albeit in the form of walking round one or other of the paths, whilst their dogs went all over the land. And, of course, others walked and indulged in other forms of recreation elsewhere on the Land.”
[34]The inspector, therefore, remained of the view that there was ample evidence showing, on the balance of probability, that the application land had been used for 20 years by the inhabitants of Great Faringdon Civil Parish for lawful sports and pastimes up to the date of the erection of the sign in 2011 and that such use was as of right.

Ground 1: The inspector’s treatment of the use of perimeter paths

[35]The claimants submit that in his first report the inspector held that “the principal activity, walking, took place primarily on paths, but not exclusively so.” The path on the eastern side of the site is a public footpath. The claimants contend that the inspector erred in taking into account use of the perimeter paths, including the public path, as lawful sports and pastimes counting towards the establishment of a town or village green. The use of such paths would not have been regarded by a reasonable landowner as the assertion of a village green right to indulge in lawful sports and pastimes over the whole of his land.[36]The claimants accept that in his first report the inspector recognised (at paragraph 179) that the use of the paths, with or without dogs, may be partly attributable to an actual or emerging right of way. But the inspector did not say that he had discounted use attributable to the actual public right of way, although he did in his supplementary report (at [29]). Second, the inspector in his first report envisaged that some use, also to be discounted, arose in respect of an emerging right of way – possibly emerging in respect of the circular path around the other sides. But he only discounted the use by people who entered at one gate and left at another in the course of a longer walk or jog. He did not discount, the claimants contend, the use by somebody who entered and left by either entrance one or two having walked a circuit. The claimants contend that the inspector should have discounted the use of the public footpath and the use of the other three sides of the field where the use was attributable to an emerging footpath.[37]The claimants rely upon the case of Dyfed County Council v Secretary of State for Wales (1990) 59 P&CR 275 in which the Court of Appeal held that there may be a valid claim to the establishment of a public footpath based on long use that starts at one point, describes a circle, and returns to the same point.[38]The claimants contend that Lightman J in Oxfordshire County Council v Oxford City Council & Robinson [2004] EWHC 12 (Ch) put matters too broadly when he said at [102]:
“The issue raised is whether user of a track or tracks situated on or traversing the land claimed as a Green for pedestrian recreational purposes will qualify as user for a lawful pastime for the purposes of a claim to the acquisition of rights to use as a Green. If the track or tracks is or are of such character that user of it or them cannot give rise to a presumption of dedication at common law as a public highway, user of such a track or tracks for pedestrian recreational purposes may readily qualify as user for a lawful pastime for the purposes of a claim to the acquisition of rights to use as a Green. The answer is more complicated where the track or tracks is or are of such a character that user of it or them can give rise to such a presumption. The answer must depend how the matter would have appeared to the owner of the land: see Lord Hoffmann in Sunningwell at pages 352H-353A and 354F-G, cited by Sullivan J in Laing at paras 78-81. Recreational walking upon a defined track may or may not appear to the owner as referable to the exercise of a public right of way or a right to enjoy a lawful sport or pastime depending upon the context in which the exercise takes place, which includes the character of the land and the season of the year. Use of a track merely as an access to a potential Green will ordinarily be referable only to exercise of a public right of way to the Green. But walking a dog, jogging or pushing a pram on a defined track which is situated on or traverses the potential Green may be recreational use of land as a Green and part of the total such recreational use, if the use in all the circumstances is such as to suggest to a reasonable landowner the exercise of a right to indulge in lawful sports and pastimes across the whole of his land. If the position is ambiguous, the inference should generally be drawn of exercise of the less onerous right (the public right of way) rather than the more onerous (the right to use as a Green).”
[39]In his supplementary report the inspector said at [29], having referred to the use that he had discounted, “but that still left the bulk of walkers, who were using the land for what, to adopt the analysis of Lord Carnwath in Barkas, was the assertion of a village green right – although they would probably have not have thought of it that way.” The claimants contend that that is looking from the point of view of the users not the reasonable landowner. The position is distinguishable from that in R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335 as there, having got onto the land, the recreational use of the people ranged all over it. Here, in contrast, the principal activity, walking, took place primarily on the paths.[40]Next, the inspector referred to the fact that dogs of users went all over the land. The claimants refer to R (Laing Homes Limited) v Buckinghamshire County Council (2004) 1 P&CR 36 at [104] where it is said:
“I do not consider that the dog's wanderings or the owner's attempts to retrieve his errant dog would suggest to the reasonable landowner that the dog walker believed he was exercising a public right to use the land beyond the footpath for informal recreation.”
[41]Accordingly, the claimants submit, no proper reasons were given for concluding that the path use was referable to the assertion of a village green right in respect of the whole of the land.[42]The defendant contends that the claimants ignore the factual context in which the inspector assessed the evidence of user. On a fair reading of the report the inspector considered the circular use by walkers would be seen by an objective landowner as referable to the TVG use of the land as a whole.[43]There were some 15 witnesses in support of the application and a further 85 also who had produced written evidence. That was evidence which had to be considered having regard to the position and approach in the case of R (Alfred McAlpine Homes Limited) v Staffordshire County Council [2002] EWHC 76 (Admin) at [71] to [77].[44]The inspector specifically acknowledged the difference between walking, in terms of the exercise of a right of way, and walking that may count towards recreational use and qualify for town and village green purposes.[45]The inspector grappled with the issue of what use to take into account (see [164]). He continued that walking took place predominantly but not exclusively on the circular path, to a lesser extent on the outer path and to some extent elsewhere on the land. He concluded that “other activities, such as relaxing, enjoying the view, children playing, sledging – clearly took place all over the land [168].” The inspector’s conclusion that there was abundant use of the land throughout the relevant period for informal recreation was thus supported by ample evidence.[46]Of significance, the inspector concluded that owners of the land must have been aware that recreational activities were taking place but only took cursory steps to prevent or restrict it (see [176]). The inspector noted that there were no signs or fencing erected.[47]Further, in his supplementary report at [22] to [30] the inspector made it clear that he had taken great care in observing and assessing the use of land including the way in which footpaths had been used.[48]That approach was entirely consistent with that in Oxfordshire County Council v Oxford City Council (supra) and Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 at [68] per Lord Hoffmann.[49]At no stage had the inspector assessed the evidence of user other than how it would have appeared to a reasonable landowner.[50]Reading the inspector’s reports, fairly and as a whole, results in the conclusion that his reasons were entirely adequate and proper.

Discussion and conclusions

[51]Lightman J in Oxfordshire (supra) put, in my judgment, the matter realistically. If the tracks used are of such a character that their use cannot give rise to a presumption of dedication at common law of a public highway then such use would readily qualify as a lawful pastime for the purposes of a TVG. If the situation is more complicated such that the track or tracks are of such a character that use of them can give rise to such a presumption then the answer must depend on how the use would have appeared to the reasonable owner of the land. That is an objective test. As he said, if the position is ambiguous, inference should generally be drawn of exercise of the less onerous right (the public right of way) rather than the more onerous (the right to use as a green). That, it seems to me, is a perfectly fair encapsulation of the legal position. I find it a persuasive starting point.[52]That means that what the inspector described as the principal activity, namely, walking, and walking a dog, jogging or pushing a pram on a defined track on the potential TVG may be recreational use of land as a green and part of the total such recreational use if, in all the circumstances, it is such as to suggest to the reasonable landowner the exercise of a right to indulge in lawful sports and pastimes across the whole of his land. The inspector made clear in his supplementary report that he discounted those who used the public footpath, entering at one gate and leaving at the other. The remainder of the walkers, he concluded, were mostly using the land for the assertion of a village green right. The contentious part of that sentence is the phrase “although they would probably not have thought of it in that way”. But that is to take a phrase out of context. It has to be read in the light of what the inspector said throughout the whole of the report and, in particular, [27] to [30]. In [30], the inspector said:
“I am therefore in no doubt that, although there were some people using the land to assert a public right of way, the great majority were using it for general recreation, albeit in the form of walking round one or other of the paths, whilst their dogs went all over the land. And of course, others walked and indulged in other forms of recreation elsewhere on the land.”
[53]The majority of the recreational use that he found was of walking one or other of the paths which was distinct from some people using the land to assert a public right of way.[54]It is clear, therefore, that on a fair reading of the first report and the supplementary report that the inspector was well aware that if the walking use was such as to indicate an emergent right of way or use of an actual right of way that he had to discount it and he did so. Other use though was for informal recreation. That was a matter for his judgment having heard all of the evidence and observed activities on the land in question.[55]It is also clear that the inspector came to his judgment as a result of his findings of the use of the land as a whole: see [24] and [30] of the supplementary report, in particular. When the inspector referred in [29] to the fact that users would not have thought they were asserting a village green right that was part of his general description of the use that was being carried out by the walkers. It was not an inversion of the test as to how the use appeared to the reasonable landowner.[56]What is clear is that the inspector did not accept the submission by the objectors that use of the paths should be excluded altogether. That submission has been repeated before me but put elegantly by Mr Edwards QC. I reject it. I have set out already the importance of reading the reports as a whole and fairly; when that is done it is clear that the inspector discounted those either using the public footpath or using the paths as part of a route from one point outside the land to another. In respect of those users the inspector is clear in his supplementary report that he discounted that use. For the rest he was satisfied that it was informal recreation, whether walking round one or other of the paths, whether the circular path or the outer path, whilst their dogs went over the land. Others who walked and indulged in other forms of recreation elsewhere on the land were using the land for informal recreational use attributable to a village green right. This is not, therefore, a case like Dyfed(supra) where the inspector did not give adequate reasons as to how he dealt with evidence that the path was used solely for walking. Similarly, Laing Homes is distinguishable as it involved three recently confirmed public footpaths around the perimeter of all three fields and the Inspector there wrongly relied upon their use as contributing to lawful sports and pastimes and not as an exercise of a public right of way.[57]The inspector was well aware that the starting point had to be what a reasonable landowner would think. Having reviewed the evidence in his first report he concluded that the owners of the land must have been aware – insofar as they turn their minds to it – that the combination of informal recreational activities that he set out in paragraph 174 were taking place and that they took only cursory steps to prevent or restrict it. It was a classic example of recreation and low-level agriculture existing happily side by side. As he said in [181]:
“There is no doubt that the owners knew, both by direct observation and from the reports of those working with and for them, that the land was being used by people who were in effect trespassers.”
[58]Accordingly, this ground fails.[59]The claimants’ case is that the inspector fell into error in excluding as a consideration the spread of users of the land across the locality. The applicant had relied upon the locality of Great Faringdon Civil Parish as part of his application. That had a population of over 7,000 people. Where the inspector fell into error was in his rejection of the submission that where the great preponderance of users came from within 200 yards of the application site, as here, their use was not properly referable to the locality relied upon: it is necessary for the applicant to demonstrate a geographical spread of users across the whole of the claim locality if land is to be registered as a town green.[60]The claimants submit that the statutory language in section 15(2) and (3) of the 2006 Act requires use by a significant number of inhabitants from any locality and not merely part of any locality. If it were sufficient that the users came from just one part of the locality then the requirement would be meaningless.[61]Registration confers a right on all inhabitants of the locality enforceable against the landowner to use the TVG in perpetuity. Such a mismatch between those whose use led to the acquisition of rights and those who would enjoy the benefit of them infringes the principle of equivalence articulated by Lord Hope in R (Lewis) v Redcar and Cleveland Borough Council [2010] 2 AC 70 at [71] where he said:
“…the theme that runs right through all of the law on private and public rights of way and other similar rights is that of an equivalence between the user that is relied on to establish the right on the one hand and the way the right may be exercised once it has been established on the other.”
Parliament cannot have intended rights to be conferred on a great majority of people who have never used the land.[62]The majority of those who produced evidence forms lived within 200 yards of the site (68%). The submission put to the inspector was that use by local people was not referable to use by the inhabitants of Faringdon.[63]The claimants submit that the inspector’s approach is wrong in law as: i) It disregards what Lord Carnwath said in Barkas, namely, that the right to be asserted had to be a village green right; ii) There is a mismatch between the area from which the users come (the area in the immediate vicinity of the application site) and the area in respect of which village green rights will attach; iii) It means that there was no large loophole to be addressed by the Countryside and Rights of Way Act 2000; iv) The consequence is that it is sufficient to meet the statutory requirement if a great majority of users come from the area next to the site and the locality relied on is much bigger and more populous.[64]The claimants submit that there are three relevant cases: i) R (Alfred McAlpine Homes Limited) v Staffordshire County Council [2002] EWHC 76 (Admin) where the landowner challenging registration raised arguments as to the meaning of the word “significant”. Sullivan J (as he then was) said at [71]:
“71. Dealing firstly with the question of a significant number, I do not accept the proposition that significant in the context of section 22(1) as amended means a considerable or a substantial number. A neighbourhood may have a very limited population and a significant number of the inhabitants of such a neighbourhood might not be so great as to be properly described as a considerable or a substantial number. In my judgment the inspector approached the matter correctly in saying that “significant”, although imprecise, is an ordinary word in the English language and little help is to be gained from trying to define it in other language. In addition, the inspector correctly concluded that, whether the evidence showed that a significant number of the inhabitants of any locality or of any neighbourhood within a locality had used the meadow for informal recreation was very much a matter of impression. It is necessary to ask the question: significant for what purpose? In my judgment the correct answer is provided by Mr Mynors on behalf of the council, when he submits that what matters is that the number of people using the land in question has to be sufficient to indicate that their use of the land signifies that it is in general use by the local community for informal recreation, rather than occasional use by individuals as trespassers.” ii) Paddico (267) Limited v Kirklees Metropolitan Council [2011] EWHC 1606 (Ch) where Vos J (as he then was) said at [111]: “I do not accept Mr Laurence's spread or distribution point, so it seems to me that, had an application been made after the 2000 Act had come into force, and had the ‘as of right’ point not been available, registration would have been possible.” iii) Lancashire County Council v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 1238. There the same argument was put that there was not a spread of users from throughout the locality but only part of the locality. The inspector ruled that that was not relevant and did not consider the evidence on which it was based. Ouseley J held that the inspector was right in so ruling. He went on to say at [32]: “The number of users still has to be ‘significant’ in relation to ‘locality’ or ‘neighbourhood’; the difficulty of meeting that criterion was eased markedly by the introduction of the ‘neighbourhood,’…”
The claimants contend that the judgment of Ouseley J is wrong. I was told that the case is currently awaiting a decision as to whether permission to appeal should be granted.[65]The defendant contends that there is no legal basis for the claimants’ contention that there has to be a spread of users across the locality.[66]In dealing with the consequences the inspector said at [186]:
“186. Fifthly, I consider that those using the Application Land are likely to have come largely from the Civil Parish of [Great] Faringdon. No doubt the [use of the] Land was predominantly from the parts of Faringdon nearest to the Land, but that will always be true in the case of any open space at the edge of a built-up area. I think it unlikely that more than a handful will have come from outside Faringdon.”
[67]Further, the point was expressly addressed in the supplementary report on behalf of the inspector where he went on to say at [20]:
“And it cannot be the case that the land has to be used equally by people from all parts of the town or village.”
[68]In Lancashire County Council (supra) the same point was raised. It was clearly rejected by Ouseley J who held at [36]:
“No authority positively supports the contention, although it has been raised in a number of cases. The Inspector rightly rejected the submission that the statutory requirement for a ‘significant number of the inhabitants of the locality’ to use the land meant that there had to be a spread throughout the locality. The phrase used by Sullivan J in Alfred McAlpine Homes Ltd v Staffordshire County Council [2002] EWHC 76 (Admin) at [71] meant that the number using it had to signify that the land was ‘in general use by the local community… rather than occasional use by individuals as trespassers’ could not be seen as reflecting a statutory requirement for a spread throughout the locality. Mr Edwards focused on the words ‘general use by the local community’ without paying sufficient heed to the context created by the whole passage. This relates to the numbers of users and the frequency of recreational use needed to show the significance of the numbers. It has nothing to do with their place of residence within the locality.”

Discussion and conclusions

[69]There is nothing in the statutory wording of section 15 which lends support to the claimants’ submission. The wording refers to “a significant number of inhabitants of any locality”. There is no further statutory stipulation. If it was to have been intended by Parliament that the significant number related to inhabitants across the locality then words could have easily been inserted to that effect. They were not. As a result, I do not find that there is any “mismatch” of the sort contended for by the claimants. What the statutory wording is requiring, in my judgment, is that there are a significant number of the inhabitants of any locality or any neighbourhood, if that is the basis of the application, who have indulged as of right in lawful sports and pastimes on the land. I can see no basis, therefore, in the statutory wording for there to be a spread of users across the locality.[70]Far from Ouseley J being wrong in [35] in Lancashire County Council I consider his reasoning to be highly persuasive.[71]As to the other cases relied upon by the claimants. McAlpine Homes dealt with the meaning of “significant”. Sullivan J did not accept that it meant a considerable or substantial number. As he said “significant” although imprecise is an ordinary word in the English language. Whether the use was actually significant was very much a matter of impression. One had to ask the question “significant” for what purpose. Provided the number of people using the land in question was sufficient to indicate that their use signified that it was in general use by the local community for informal recreation that was sufficient. That will always be a matter of judgment for the decision-maker.[72]Dr Mynors dealt specifically with the contention that the number using the site was not a significant number of the inhabitants of Faringdon in his supplementary report. He concluded, first, that the number of those actually using the land at one time or another was likely to have been significantly in excess of 111 who had provided written statements but by what factor was entirely a matter of conjecture. Many of those who filled in the form would have been accompanied by their husband or wife and there would have been others who could not be bothered to fill in the form. Next, as a matter of impression, Dr Mynors concluded that it was a well used piece of land. He set out in [19] his experience in other towns and village green inquiries and said that this was one of the more convincing that he had come across and he rejected in [20] that the land had to be equally used by people from all parts of the town or village in question. In coming to that conclusion it seems to me he employed the right test.[73]The first-instance decision in the case of Paddico (267) I did not find of great assistance. Vos J (as he then was) did not accept the point about spread or distribution of inhabitants. The claimants contend that was on the facts of the case. I do not need to determine that, but however the case is looked at it does not assist the claimants.[74]Accordingly, this ground fails also.[75]There is, therefore, no need to consider the application of section 31(3C) of the Senior Courts Act 1981.[76]In the circumstances I would have granted permission but dismissed the claim for judicial review.

Cited in 1 later judgment