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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 1934 (Admin)
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
1, Oxford Row,
Leeds LS1 3BG
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
| H.M.THE QUEEN (on the application of STEPHEN MALPASS)
|- and -
|THE COUNTY COUNCIL OF DURHAM
George Laurence QC and Ross Crail (instructed by Durham CC) for the Defendant
Hearing dates: 16, 20 April, 25 July 2012
Crown Copyright ©
Judge Kaye QC:
"(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."
"… into account an immaterial consideration/error of law – in that the Deed [i.e. that dated 4 February 1964] was treated as an appropriation and/or it was concluded that no appropriation was required to apply the provisions of the Open Spaces Act 1906".
"It would appear that the Council is adequately covered in so far that the … Belle Vue Grounds are held as public walks and pleasure grounds and that any variation to this use would require the consent of the Ministry of Housing and Local Government …"
"WHEREAS there is vested in the Council for its statutory purposes certain lands short particulars of which are set forth in the Schedule hereto
AND WHEREAS the Council have been requested to put on record the purposes for which the lands are to be used and the Council have decided so to do by this Deed
NOW IT IS DECLARED that the lands and any buildings thereon which are described in the Schedule hereto are held by the Council under its statutory powers for the benefit or interest of the Public as Open Spaces for the recreation of the Public or for Public Walks Parks and Pleasure Grounds or as Public Quarries or for general use of the Public by way of provision of an Omnibus Station and as a Market as the case may be"
"(a) 1,160 Square yards of land situate and known as The Market Square Consett TOGETHER with the Buildings thereon used as an Omnibus Station
(b) 10 acres or thereabouts of land situate and known as Sherburn Park Consett aforesaid
TOGETHER with the Buildings thereon
TOGETHER ALSO with an additional 1,200 square yards
TOGETHER ALSO with the Stable Workshop and other Buildings erected thereon in Back Medomsley Road Consett aforesaid
(c) 44 acres or thereabouts of land situate and known as Number One Consett aforesaid
(d) 2,570 square yards or thereabouts of land in Medomsley Road Consett aforesaid being an addition to the before mentioned lands at Number One
(e) Black Dyke Common Quarry
Berry Edge Common Quarry
West Carr House Common Quarry"
- the various descriptions of use in the operative parts of the 1964 Deed were to be ascribed to one or more of the five parcels of land described in the Schedule "as the case may be". Thus (a) referred to the described use as an Omnibus Station and (e) to the Public Quarries;
- the vast majority of the application land formed part of (c), the 44 acres, acquired under the 1936 Conveyance;
- the remaining small parcels did not specifically form part of either (c) or (d) but possibly were part of (e) (Black Dyke Common Quarry). Nothing of significance however turns on this;
- the references in the 1964 Deed to "Open Spaces" and "Public Walks, Parks and Pleasure Grounds" reflected the language of s 10 of the 1906 Act (prescribing that land acquired by local authorities under the Act as open space is to be held as such for use by the public for purposes of recreation) and s 164 of the 1875 Act (above).
"29. Finally I should refer to section 10 of the Open Spaces Act 1906. Section 10 provides that:
"A local authority who have acquired any estate or interest in or control over any open space … under this Act shall, subject to any conditions under which the estate, interest, or control was so 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 within the meaning of this Act 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 …"
"open space", as defined in section 20, includes "land … which … is used for purposes of recreation …"
Section 123(2B)(b) of the Local Government Act 1972 enables open space land held under a 1906 Act trust to be disposed of freed from that trust.
"30. It is, I think, accepted that if the respondent council acquired the Sports Arena "under the 1906 Act", the local inhabitants' use of the land for recreation would have been a use under the trust imposed by section 10 of the Act. The use would have been subject to regulation by the council and would not have been a use "as of right" for the purposes of class c of section 22(1) of the Commons Registration Act 1965. But Mr Petchey accepted that Mr Laurence QC was correct in contending that the Sports Arena had not been acquired "under the  Act" and that section 10 did not, therefore, apply. Here, too, although your Lordships cannot, in view of this concession, conclude that Mr Laurence's contention is wrong, I do not, for myself regard the point as clear. Is it necessary in order for open space land to have been acquired under the Act, for it to be expressly so stated, whether in the deed of transfer or in some council minute? Attorney-General v Poole Corporation  Ch 23 is interesting on this point. The open space land in question had been conveyed to Poole Corporation
"in fee simple to the intent that the same may for ever hereafter be preserved and used as an open space or as a pleasure or recreation ground for the public use."
There was no express reference in the Conveyance to the 1906 Act but the Court of Appeal thought it plain that the Act applied. Indeed counsel on both sides argued the case on the footing that that was so (see Sir Wilfrid Greene MR, at p 30). It seems to me, therefore, that the 1906 Act should not have been set to one side in the present case simply on the ground that in the documents relating to the transfer to the council no express reference to the 1906 Act can be found. It would be, in my view, an arguable proposition that if the current use of land acquired by a local authority were use for the purposes of recreation and if the land had not been purchased for some other inconsistent use and the local authority had the intention that the land should continue to be used for the purposes of recreation, the provisions of section 10 would apply (c/f counsel's argument in the Poole Corporation case, at p 27). But your Lordships cannot take the argument to a conclusion in the present case."
"86. The City Council as a local authority is in relation to this land in a different position from a private landowner, however benevolent, who happens to own the site of a traditional village green. The land is held by the City Council, and was held by its predecessors, for public law purposes. A local resident who takes a walk in a park owned by a local authority might indignantly reject any suggestion that he was a trespasser unless he obtained the local authority's consent to enter. He might say that it was the community's park, and that the local authority as its legal owner was (in a loose sense) in the position of a trustee with a duty to let him in. (Indeed that is how Finnemore J put the position in Hall v Beckenham Corporation  1 KB 716, 728, which was concerned with a claim in nuisance against a local authority, the owner of a public park, in which members of the public flew noisy model aircraft). So the notion of an implied statutory licence has its attractions.
"87. After that approach had been suggested there was a further hearing of this appeal in order to consider the effect of various statutory provisions which were not referred to at the first hearing, including in particular section 10 of the Open Spaces Act 1906, sections 122 and 123 of the Local Government Act 1972 and section 19 of the Local Government (Miscellaneous Provisions) Act 1976. Where land is vested in a local authority on a statutory trust under section 10 of the Open Spaces Act 1906, inhabitants of the locality are beneficiaries of a statutory trust of a public nature, and it would be very difficult to regard those who use the park or other open space as trespassers (even if that expression is toned down to tolerated trespassers). The position would be the same if there were no statutory trust in the strict sense, but land had been appropriated for the purpose of public recreation."
• that the application land consisted almost entirely of land which was the subject-matter of the 1936 Conveyance and that paragraph (c) of the Schedule to the 1964 Deed related to such land;
• that although there was circumstantial evidence (e.g. the use of the land, the ministerial consents especially that given in 1936 recording that the land conveyed for the electricity supply station was included in the land conveyed by the 1936 Conveyance and was held by the local authority "for purposes of public walks and pleasure grounds", and the 1964 Deed itself) supporting the proposition that the application land was held and acquired for public recreation, nevertheless it did not follow that the whole of the application land was held from acquisition for the purpose of public walks or pleasure grounds but it was possible. Crucially, he was not however able to reach a conclusion on the balance of probabilities as to what purpose the land was held for prior to the 1964 Deed;
• That surrounding evidence was circumstantially entirely consistent with acquisition under either s 10 of the Open Spaces Act 1906 or s 164 of the Public Health Act 1875;
• relying on the above dicta of Lord Walker and Lord Scott in R (Beresford) v Sunderland City Council (above) and other case law and after a detailed study of a plethora of local government legislation dealing with local authority holding of land for various public uses, he concluded that,
a) although the 1964 Deed was "not the most straightforward document to interpret" where land had been appropriated "for the purpose of public recreation" this was enough to render use "by right" rather than "as of right" (and so entitle the CRA to refuse registration) [my emphasis];
b) whether the land was acquired under s 10 of the Open Spaces Act 1906 or s 164 of the Public Health Act 1875 it did not matter; both were sufficient to render use of the application land as "by right" (since the recognised effect of both species of legislation was to require the local authority to hold the land on an implied statutory trust to allow the public to use and have access to the land for public recreation);
c) for open space land to have been acquired under the 1906 Act it may not be necessary for it to be expressly so stated in the conveyance or transfer;
d) where land was held under either the 1906 Act or the 1875 Act it was possible to effect an informal appropriation of land for purposes which were not inconsistent with the terms of the original acquisition and which appropriation accordingly did not need to comply with the mechanisms of ss 122(2A) and (2B) and 123(2A) and (2B) of the Local Government Act 1972 which applied where the authority wished to appropriate land it already held for public purposes for an entirely different inconsistent purpose and freed the land, on fulfilment of the statutory requirements, from the statutory trusts arising under s 10 or s 164 as the case might be;
• The motivation, he thought, behind the 1964 Deed was to make the position clear. Looking at the background, context and language of the 1964 Deed the inspector concluded that the purpose and effect of the 1964 Deed was either
a) to record, clarify or confirm the position then known or assumed, namely that the application land was held under either the 1906 Act or the 1875 Act or
b) to declare and effect just such an informal appropriation of land for purposes which were not inconsistent with the terms of the original acquisition or the then use of the land and accordingly did not need to comply with the formal statutory mechanisms of ss 122(2B) and 123(2B) of the Local Government Act 1972;
• in short, by this Deed the local authority was recording, clarifying, confirming or declaring that it held almost all the application land for the benefit of the public as open spaces for the recreation of the public or for public walks, parks and pleasure grounds under s 10 of the 1906 Act and s 164 of the 1875 Act; accordingly the public had not used the application land in the relevant period prior to the application for registration "as of right" but "by right" under the statutory trust of a public nature affecting the application land;
• for these reasons he recommended registration should be refused.
The New Evidence
• First, they show responsibility for the application land being administered and managed by and under the relevant committee dealing with parks and open spaces (the Allotments, Parks and Open Spaces and Cemeteries Committee of Consett UDC – this evidence at least appears to have been before the inspector);
• Second, the 1963/64 minutes themselves described the Belle Vue Grounds as "held as public walks and pleasure grounds" (see above).
The Submissions of Mr George QC
• The defendant's decision was based ultimately on the inspector's reports and recommendations;
• Those recommendations (for refusal) were legally flawed and accordingly vitiated the defendant's decision;
• The court should not substitute its own decision or its own reasons for that of the decision maker.
"It would be, in my view, an arguable proposition that if the current use of land acquired by a local authority were use for the purposes of recreation and if the land had not been purchased for some other inconsistent use and the local authority had the intention that the land should continue to be used for the purposes of recreation, the provisions of section 10 [of the Open Spaces Act 1906] would apply"
• Local authorities are creatures of statute and their powers to acquire, hold and use land are governed as such by statute. None of the relevant statutory framework refers to "inconsistent" use, still less "non inconsistent" use;
• The 1964 Deed assumed its importance precisely because it was unclear on what basis the application land was held before the Deed as the inspector duly noted; thus the Deed could not have "confirmed" anything and insofar as it sought to do so, was irrelevant and of no legal effect. Local authorities had no power to make a determination that land was to be used for a particular purpose and the 1964 Deed did not even appear to do so.
• The reasoning that the 1964 Deed amounted in substance to an informal process of appropriation of the application land to public use was plainly based on the Scott test, i.e. that no formal process was required;
• It was insufficient merely to state that the land was "in practice" held for a purpose which was not inconsistent with the new, informally appropriated, purpose. To be a valid appropriation to the stated use, the local authority must have concluded that the land subject to the appropriation was "not required" for its existing purposes (see Local Government Act 1933, ss 163, 165). No such conclusion is recorded in the 1964 Deed or elsewhere nor does the 1964 Deed declare it was appropriating the land to a different purpose. Moreover, to take effect as an appropriation from one use to another the formal statutory mechanisms of the Local Government Act 1933 needed to be complied with and ministerial approval (at that time) was needed. It was apparent none of the formalities had been observed. All this is unsurprising given the inspector was relying on and treating the 1964 Deed as an informal process.
• Thus, it was argued the 1964 Deed was simply of no legal effect at all. That being so, and it being unclear for what purpose the application land was held by the defendant council the only legitimate conclusion was that the CRA had erred in law in refusing the application (since the applicants must thereby have established their user was "as of right" not "by right" and so within s 15 of the 2006 Act).
• Accordingly the court should quash the refusal decision of the CRA, order the defendant to register the application land under the 2006 Act or else, at worst, the matter should be remitted for a fresh consideration.
The Submissions of Mr Laurence QC
• That even if the court came to the conclusion the decision to refuse registration was due to some error of law, being a decision of an authority and not of a court or tribunal, this court cannot substitute its own decision but only remit the matter: see s 31 (5) and (5A) Senior Courts Act 1981 as amended by the Tribunals Courts and Enforcement Act 2007.
• That the totality of the evidence, together with the new evidence strongly suggests the application land was acquired under the 1875 Act and was lawfully used for public purposes sufficient to prevent the acquisition of the right to registration under the 2006 Act:
a) The new evidence is entirely consistent with the "circumstantial" evidence noted by the inspector that it was possible (even if not probable) that the application land had been acquired under the 1875 Act and was being lawfully used for the purposes of public recreation;
b) the 1936 ministerial consent (recording the land was held "for purposes of public walks and pleasure grounds") must have been given under s 165 Local Government Act 1933 (repealed in 1974) then requiring ministerial consent for the disposal of land no longer required for the purpose for which it was acquired or was being used.
c) Accordingly, since the land being disposed under that consent (the electricity sub-station) had been part of the land conveyed by the 1936 Conveyance that was a very strong pointer towards the whole of the land thereby conveyed (including most of the application land) having been acquired under s 164 of the 1875 Act.
d) The 1949 ministerial consent for the appropriation of land for council offices was necessary also but under s 163 of the Local Government Act 1933 requiring ministerial approval where land held by a local authority was appropriated from one use to another, different, use (see above).
e) Having regard to that and all the surrounding evidence (including the new evidence) and absent any evidence to the contrary it ought to be inferred and can be safely inferred that the application land (being part of for the most part that conveyed by the 1936 Conveyance) was also acquired under the 1875 Act. There is no evidence, for example, suggesting that part of the 1936 Conveyance land was acquired under one statute and part under another.
f) All this is entirely consistent with the new evidence (the Council minutes) as showing that the defendant's predecessors, having consulted the lawyers, were advised the land was held (in substance) under the 1875 Act and therefore needed ministerial consent if there was to be any "variation" of that use.
g) On that basis the 1964 Deed can be readily understood. It was merely a reflection or confirmation of what everyone knew or understood at the time. It is not a case of appropriation at all. It did not, as the inspector suggested, need a fresh dedication or appropriation. It merely confirmed the status quo.
h) A local authority had power to dedicate its land for the use of public recreation: R v Doncaster MBC(ex p Braim) (1986) 57 P&CR 1 (though he conceded in view of the doubts expressed by McCullough J in that case whether "dedication" was the right word).
i) On that basis the decision should not be quashed and there would be no point in remitting the matter for further consideration: the result would still be the same: refusal of registration.
• Alternatively, if the 1964 Deed operated as an appropriation:
a) It was tantamount to a record of a decision by the local authority to hold the land on the statutory trust for public recreation;
b) If the land was not held for an inconsistent purpose already there would be no requirement for the statutory formalities attendant on freeing the land from the statutory trusts for public recreation;
c) In any event it is now, after over 40 years since the Deed far too late to mount an ultra vires challenge to the Deed;
d) Accordingly there was no error of law in saying that the 1964 Deed subjected the application land to the statutory trusts, whether or not that entailed an appropriation. Such a proposition does not depend on the Scott test.
• The so-called Scott test was not central to the inspector's reasoning and in any event the new evidence shows the land was held under the 1875 Act. Hence the Scott test (or Lord Scott's arguable proposition) can safely be put on one side.
• Despite the absence of some clear and unequivocal evidence spelling out under what authority the application land was acquired or held, it was and is proper to assume the acquisition and holding was lawful provided the use to which the land is put is permitted by some appropriate enabling legislation (see, for example, Attorney-General v Poole Corporation  Ch 23 cited above by Lord Scott);
• In the absence of some formal or lawful appropriation, once acquired for one purpose, the local authority cannot (absent some temporary use or not inconsistent use) use the land for some other purpose;
• if the application land had indeed been held for the purposes of s 10 of the Open Spaces Act 1906 or under s 164 of the Public Health Act 1875, then the land was held on statutory trusts for public recreation resulting in the public's use of the land being by right and not "as of right" and in those circumstances the CRA would have been correct in refusing registration;
• the 1936 Conveyance did not adequately state under what power or authority the relevant land was acquired or held;
• leaving aside the 1964 Deed, there is no evidence of any express appropriation of the land for recreational purposes under either the 1906 or 1875 Acts, or for that matter any other Act.
Note 1 Pp. 216-224 of the hearing bundle (page references are to this bundle). The greater part of the application land was first vested in Consett UDC under the 1936 Conveyance, then in Derwentside DC (following local government reorganisation in 1974) and then in the defendant since April 2009 (following a further reorganisation). [Back] Note 2 See Inspectors 1st Report, para. 1, fn 2 at p. 113. [Back] Note 3 Under the Commons (Registration of Town or Village Greens)(Interim Arrangements) (England) Regulations 2007 (SI 457 of 2007). [Back] Note 4 Pp 113-172. [Back] Note 5 See inspector’s 1st Report at para. 3, p. 114 and para. 10, p. 117. [Back] Note 6 Pp 173-180. [Back] Note 7 See inspector’s first report, para. 43 (p. 130). [Back] Note 8 See, for example, the witness statement of Mr Green (p. 257-8). [Back] Note 9 Inspector’s first report, para. 93 (p. 147). [Back] Note 10 Inspector’s first report, para. 94 (p. 147). [Back] Note 11 Page. 92. [Back] Note 12 P. 98. [Back] Note 13 P. 92. [Back] Note 14 P. 102. [Back] Note 15 See 1st Report, paras. 64-65. [Back] Note 16 See 1st Report, paras. 66-73 and R (Lewis) v Redcar and Cleveland BC (No. 2)  2 AC 70 SC. [Back] Note 17 See the inspector’s first report, paras. 99-100. He quoted them in reverse order. [Back] Note 18 See for example, para. 8 of his second report (p. 175). [Back] Note 19 See first Report, paras. 112-113, 116, 117. [Back] Note 20 Second report, paras. 11, 15 (pp. 176, 178). [Back] Note 21 See paras 118, 125 of the first report. [Back] Note 22 See pp. 79-108. [Back] Note 23 See second report, para. 9 (p. 176). [Back] Note 24 Para. 11 of the inspector’s second report. [Back]
Note 1 Pp. 216-224 of the hearing bundle (page references are to this bundle). The greater part of the application land was first vested in Consett UDC under the 1936 Conveyance, then in Derwentside DC (following local government reorganisation in 1974) and then in the defendant since April 2009 (following a further reorganisation). [Back]
Note 2 See Inspectors 1st Report, para. 1, fn 2 at p. 113. [Back]
Note 3 Under the Commons (Registration of Town or Village Greens)(Interim Arrangements) (England) Regulations 2007 (SI 457 of 2007). [Back]
Note 4 Pp 113-172. [Back]
Note 5 See inspector’s 1st Report at para. 3, p. 114 and para. 10, p. 117. [Back]
Note 6 Pp 173-180. [Back]
Note 7 See inspector’s first report, para. 43 (p. 130). [Back]
Note 8 See, for example, the witness statement of Mr Green (p. 257-8). [Back]
Note 9 Inspector’s first report, para. 93 (p. 147). [Back]
Note 10 Inspector’s first report, para. 94 (p. 147). [Back]
Note 11 Page. 92. [Back]
Note 12 P. 98. [Back]
Note 13 P. 92. [Back]
Note 14 P. 102. [Back]
Note 15 See 1st Report, paras. 64-65. [Back]
Note 16 See 1st Report, paras. 66-73 and R (Lewis) v Redcar and Cleveland BC (No. 2)  2 AC 70 SC. [Back]
Note 17 See the inspector’s first report, paras. 99-100. He quoted them in reverse order. [Back]
Note 18 See for example, para. 8 of his second report (p. 175). [Back]
Note 19 See first Report, paras. 112-113, 116, 117. [Back]
Note 20 Second report, paras. 11, 15 (pp. 176, 178). [Back]
Note 21 See paras 118, 125 of the first report. [Back]
Note 22 See pp. 79-108. [Back]
Note 23 See second report, para. 9 (p. 176). [Back]
Note 24 Para. 11 of the inspector’s second report. [Back]