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Can land adjoining a school be registered as a town or village green?

The Court of Appeal has recently considered the case of Lancashire County Council, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs and another [2018] EWCA Civ 721.

Background

The land in question was owned by Lancashire County Council and the land adjoined a school. The school applied for the land to be registered as a town or village green under section 15 of the Commons Act 2006. The Council objected to the application and this was referred to the Planning Inspectorate.  The Inspector subsequently held that most of the land should be registered.
The Council applied for judicial review of the inspector’s decision on the following grounds:

  • Section 15 of the CA 2006 required usage of the land by the inhabitants of “any locality”. It was settled law that a “locality” for these purposes meant an administrative area. The locality relied on for B’s application was the Scotforth East ward. During the 20 year period, the original ward of Scotforth East had been abolished and a new, smaller, ward, also known as Scotforth East, had been established. The creation of a new ward “reset the clock” on the period of usage, and the inhabitants of the new ward could not show usage for 20 years
  • That B had failed to show a geographical spread of users throughout the locality
  • That the Inspector:
    • should have found that the land was held for educational purposes and that registration would have been incompatible with that purpose; and
    • had imposed too high an evidential standard when requiring C to show that the land was held for educational purposes.

The case was heard in the High Court and the court found in favour of the School.

Appeal

The Council subsequently appealed and the case was recently heard in the Court of Appeal. The Court of Appeal considered whether the concept of “statutory incompatibility” should defeat an application for the registration of land as a town or village green under section 15 of the Commons Act 2006.
The Court of Appeal upheld the decision of the High Court that land adjoining a school had been correctly registered as a town or village green.
The Court of Appeal considered (amongst others) the argument that there was “statutory incompatibility” between the powers and duties of the county council as the local education authority (LEA) and registration of the land as a town or village green under section 15 of the Commons Act 2006. The court found that the duties of the county council as LEA were general in character and could still be carried out despite the registration of the land as a town and village green.

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