In the neighbourhood

2010 has seen a steady stream of important cases involving town and village greens. Vivian Chapman QC analyses a key ruling involving Leeds City Council that dealt with a number of previously undecided points.

For the third time this year, there has been an important decision on the law relating to the registration of new greens:

• On 3 March 2010, there was the decision of the Supreme Court in R (Lewis) v Redcar & Cleveland Borough Council [2010] 2 WLR 653 (the Redcar case).
• On 23 March 2010, there was the decision of the Administrative Court in the case of R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust) v Oxfordshire County Council (Deluce, Whitmey & Booth Interested Parties) [2010] EWHC 530 (the Warneford Meadow case).
• On 21 April 2010, there was the decision of the Chancery Division in Leeds Group plc v Leeds City Council [2010] EWHC 810 (Ch) (the Leeds case).

The Leeds case deals with the following important undecided legal points about new greens:

1. In the expression “a significant number of the inhabitants of any locality or of any neighbourhood within a locality”, what is a “neighbourhood” and what is a “locality”?
2. What is the effect of the change in the definition of a town or village green effected by the Countryside and Rights of Way Act 2000?

The legal background

The concept of a new green based on 20 years’ use was introduced by the Commons Registration Act 1965. The 1965 Act required that the land should have been used for 20 years as of right for lawful sports and pastimes by “the inhabitants of any locality”. The quoted expression was construed narrowly by the courts and was replaced in the Countryside and Rights of Way Act 2000 by the expression “a significant number of the inhabitants of any locality or of any neighbourhood within a locality”. The same expression was used in the replacement legislation of s. 15 of the Commons Act 2006.

However, it has remained unclear what exactly is meant by “a neighbourhood within a locality.” The Leeds case goes some way to clarifying the meaning.

The facts

An application was made to Leeds City Council to register land known as Yeadon Banks, on the outskirts of Leeds, as a new town or village green. In the application, the applicant described himself as acting on behalf of the residents of the areas known locally as “The Haws” and “Banksfield”. The Haws is a residential area on one side of Yeadon Banks and Banksfield is a residential area on the other side of Yeadon Banks. The application described the locality as being “Yeadon”. Yeadon had existed as a civil parish and an urban district council (i.e. a locality recognised by the law) until 1937. In 1937 it had been divided between Bradford and Aireborough UDC. In 1974, Aireborough UDC had been absorbed into Leeds.

The application was referred to an inspector who held a non statutory public inquiry and advised that Yeadon Banks should be registered as a new green on the basis that The Haws and Banksfield formed a combined “neighbourhood” within the locality of “Yeadon” and that there had been qualifying use by the inhabitants of that “neighbourhood within a locality”. Leeds City Council, as CRA, accepted the advice and registered Yeadon Banks as a new green. Leeds Group plc (which owned part of Yeadon Banks) challenged the decision by judicial review and under CRA 1965 s. 14.

The “locality” issue

Counsel for Leeds Group plc considered Yeadon and a number of alternative potential “localities” (including Aireborough electoral ward) and made a number of important submissions on the meaning of “locality” in the expression “neighbourhood within a locality”:

• There can only be one locality
• Yeadon could not be a “locality” because, since 1937, it had not been an area known to the law
• An electoral ward cannot be  “locality”
• A “locality” must be of such size and situation that it was reasonably capable of accommodating a reasonable spread of qualifying recreational users.

The judge (HH Judge Behrens sitting as a judge of the High Court) rejected all these submissions:

• He held that, in the expression “neighbourhood within a locality” “locality” meant “locality or localities”. On this point he followed the obiter dictum of Lord Hoffmann in para. 27 of the Trap Grounds case – Oxfordshire County Council v Oxford City Council [2006] 2 AC 674.
• He held that Yeadon was a “locality” because it had defined boundaries although it had not, since 1937, been an area known to the law
• He held that an electoral ward was capable of being a “locality”
• He held that there was no requirement that a “locality” should be of such a size or situation as to accommodate a “spread” of users.

The “neighbourhood” issue

Counsel for Leeds Group plc also made important submissions on the meaning of “neighbourhood”. He argued that:

• There can only be one neighbourhood
• The neighbourhood must have clear boundaries
• The neighbourhood cannot be defined solely by reference to its inhabitants’ use of the application land
• Recreational users must come predominantly from the relevant neighbourhood (and that the Warneford Meadow case was wrongly decided on this point).

The judge appears to have accepted the second and third submissions and held that, although The Haws and Banksfield had sufficiently clearly defined boundaries to be regarded as neighbourhoods in their own right, the inspector had been wrong to regard them as constituting a single combined neighbourhood solely on the basis that the inhabitants from both areas used Yeadon Banks for recreation.

However, the judge rejected the first and fourth submissions. He held that each of the Haws and Banksfield was to be regarded as a relevant neighbourhood and that there was no requirement that recreational users should come predominantly from one or the other.

The revised definition issue

Counsel for Leeds Group plc argued that the effect of the change of the definition of town or village green by the Countryside and Rights of Way Act 2000 from requiring use “by the inhabitants of any locality” to requiring use “by a significant number of the inhabitants of any locality or of any neighbourhood within a locality” meant that an applicant could not rely on user “by a significant number of the inhabitants of any locality or of any neighbourhood within a locality” before the 2000 Act came into force because the landowner would then have had no reason to resist such use.

The judge rejected this rather ambitious submission and held that the post 2000 definition applied retrospectively.

Effect of Leeds case

The Leeds case marks yet another very relaxed judicial construction of the requirements for registration of a new green. In particular, the expression “neighbourhood within a locality” has been given a very generous interpretation, making it easier to register new greens.

Vivian Chapman QC is a barrister at 9 Stone Buildings (www.9stonebuildings.com). He has a particular expertise in property litigation and advice.