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Judge upholds challenge over town green and local authority land

A High Court judge has recently upheld a judicial review challenge by a campaigner over an inspector’s refusal of an application to register land in Exeter as a town green, it has been reported.

The case of R (Goodman) v Secretary of State for the Environment, Food and Rural Affairs related to Exhibition Fields in Pinhoe. The application to register the land as a town green had been referred by Devon County Council to the Planning Inspectorate for determination (as Devon is a ‘pilot’ registration authority.

The planning inspector rejected the application for the following reasons:

  • He concluded that Exeter City Council, as landowner, had impliedly appropriated Exhibition Fields from employment use such that the land thereafter became held as recreational open space and any recreational use was “by right”; and (and in the alternative)
  • as the city council had held fairs and a circus on part of the Fields, any recreational use of the land for sports and pastimes had been impliedly permitted, following the decision in R (Mann) v Somerset County Council [2012] EWHC B14.

The claimant took the case to the High Court, with Mr Justice Dove ruled in their favour on 30 July.

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According to Francis Taylor Building, the judge held – in relation to the inspector’s first conclusion – that, for an implied appropriation to have occurred, there must be evidence that the local authority directed its mind to, and answered, the statutory test for appropriation set out in s.123 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.

In relation to the second of the inspector’s reasons, the High Court judge held that for an implied permission to arise there must be evidence that the landowner intended to grant permission and also that, in the case of local authorities, the nature of the landowner’s action was relevant including, in the Goodman case, that the intervening acts of the landowner were of themselves for the purposes of public recreation.

FTB’s Douglas Edwards QC acted for the claimant, leading Simon Lane of Magdalen Chambers in Exeter. They were instructed by Susan Ring and Harry Campbell of Richard Buxton, solicitors.

Commenting on the case, FTB said: “The case helpfully clarifies some elements of the law relating to town and village greens as it applies to local authority land and reduces the scope for local authorities to rely on ‘implied’ appropriation and implied permission for recreational use so as to defeat a town green application.”

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