There was a time, in the first few years of the present century, when it seemed that town and village greens were in favour. There was a steady flow of new applications to register greens, the courts (including in several high-profile cases before the House of Lords) had made rulings supportive of such applications, and the Commons Act 2006 re-enacted, with modest concessions, legislation to facilitate such applications.

The high tide mark was the 2010 ruling of the Supreme Court (as it had then become) in R (on the application of Lewis) v Redcar and Cleveland Borough Council and another, which decided that, where users of the land claimed as a green had politely deferred to the landowner’s members playing a round of golf, so as to avoid disrupting the game, that was no more than the give-and-take customary in the British way of doing things, and did not suggest that the user was any less than ‘as of right’ — and that once the claimed land (Coatham Common, the name ‘common’ in this case not signifying that the land was already registered common land) had been registered as a green, the rights of the local community to use the green for lawful sports and pastimes would remain subject to the same principles of give-and-take.

Since then, the tide has predictably ebbed under pressure to promote development and growth, and political and judicial support for registering new greens has declined, with the provisions in the Growth and Infrastructure Act 2013 greatly restricting the scope for registering greens in the teeth of development plans, and several decisions of the courts imposing constraints on what land may be registered.

Yesterday, 21 March 2016, the Administrative Court of the High Court handed down a useful judgment in R (Somerford Parish Council) v Cheshire East Borough Council and Richborough Estates Ltd (I have altered the listing to conform to the usual practice for judicial reviews: if any reader can tell me why the parties in this and some other cases alight on what appears to be a non-standard form, please do add a comment below) which, while hardly suggesting that the tidal ebb has cycled back to a flood tide, does clarify some interesting points on the relationship between greens and highway rights, and the obligation on commons registration authorities (which determine most applications to register greens) to deal with applications fairly to all parties.

The case was about an application by Nicholas Bell to register the verges of two minor roads in Somerford, west of Congleton, as greens: Chelford Road and Black Firs Lane, under s.15 of the 2006 Act. It seems that the application (as so often) had something to do with a proposal to develop much of the land between the roads. It is not suggested that the verges themselves would be incorporated in the development (although parts fell within the development site, and were excluded from the application under s.15C of the 2006 Act, inserted by s.16 of the Growth and Infrastructure Act 2013), but their registration as greens would have seriously constrained access to the development site. You can see the two roads west and east of the arrow on Streetmap, generously proportioned by the Ordnance Survey, and get an idea of the character of the land from Google Street View here and here. Those who refer to Street View will see that both roads have a very broad verge planted with trees, and those inclined (like me) to jump to conclusions will assume that the roads were historically wide, and perhaps inclosure awarded. Not so: a quick look at shows that the roads, while not ungenerously proportioned on the Ordnance Survey 1909 County Series 1:2,500 map, had both acquired substantial verges and apparently new outer hedges by the time of the 1965–67 map.

The challenge by way of judicial review was essentially one of procedural flaws to the determination of the application by the commons registration authority, Cheshire East Borough Council (a unitary authority), brought not by the applicant for registration, Mr Bell, but by the parish council. The registration authority had appointed James Marwick, a barrister who specialises in village green cases, to act as an inspector to consider and advise on the case. Frequently, that role includes presiding over a ‘non-statutory’ public inquiry (‘non-statutory’ because there is no statutory requirement on the authority to hold an inquiry) to hear and test evidence from all parties. But in this case, Mr Marwick identified that there was a key objection to the application: were the verges part of the highways? And if he could conclude in the affirmative, he might not need to proceed to an inquiry.

It seems to have been accepted by the court that, if the verges were highway, then the application must fail, because the claimed activities of lawful sports and pastimes carried out on the application land were generally no more than people had a right to do in exercising reasonable use of the highway, and could not amount to use ‘as of right’ for the purposes of claiming a green. There have been several cases in the courts over the years which have tried to distinguish user of land which may establish public rights of way, and user which may support a claim to register the land as a green, but (to to the best of my knowledge) none has found that a green cannot be claimed on existing highway land. (Although many registered greens do include highway land, not least because, whereas s.22(1) of the Commons Registration Act 1965 excluded highways from the definition of what could be registered as common land, it was not excluded from the definition of greens). The court’s position is hardly surprising: the House of Lords in Director of Public Prosecutions v Jones and another (a splendidly liberal decision led by the then Lord Chancellor, Derry Irvine, when Lord Chancellors still participated in all three parts of Government, viz the executive, legislative and judiciary) found that a demonstration on the verge of a main road was not a trespass exceeding the rights of the user, and greatly extended the prevailing historical interpretation of what amounted to reasonable user. It seems that the claimant had sought permission to challenge the decision in Jones all the way up to the Supreme Court, but leave had been refused on this ground (see para.6, though one wonders whether the Supreme Court might have risen to the bait given the chance).

Mr Marwick received considerable evidence from the defendant authority on the status of the verges, some of it after the deadlines he had stipulated for submissions from parties. Mr Bell, the applicant, did not specifically ask for an extension of time to comment, on the late submission nor was one offered, while Mr Marwick, in his report to the council, said the late submission was: “relatively incontrovertible documentary evidence and having considered it in detail, it does not significantly alter the Council’s position or my view of the issues in this matter.” In the event, the court disagreed, noting that much of the late-tendered evidence was new and capable of being challenged, and Mr Bell ought to have been offered an opportunity for that purpose. Given the critical question of whether the verges were highway land, the authority’s decision to refuse the application without affording such an opportunity was flawed, and was quashed.

As a procedural failing, the case might not be thought to offer much of interest. But it does.

First, one of the grounds of challenge was that the registration authority “act[ed] as Judge in its own cause and thereby in breach of natural justice”. The authority was said to have an interest in promoting the development on the adjacent land and releasing the funds committed through a s.106 agreement. The claimant said that authority should have asked another (presumably neighbouring) authority to determine the application under s.101(1)(b) of the Local Government Act 1972. The court found against the claimant on this ground, with some inconclusive consideration of previous caselaw (including the rather odd case of R (Whitmey) v the Commons Commissioners), but concluding (para.31) that, “appointing an independent legal expert to conduct a non statutory enquiry and make findings is an appropriate mechanism.” And indeed, the court went on to find (para.74) that there were sufficient disputes of factual issues raised to require the inspector to hold a public inquiry.

Second, having decided that there was a procedural failing, the court was bound to consider, under s.31 of the Senior Courts Act 1981 (as amended by s.84(1) of the Criminal Justice and Courts Act 2015), whether: “it appears to the Court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” This required the court to appraise the potency of the claimant’s arguments that, had Mr Bell been afforded an opportunity to challenge the late evidence, it might have undermined Mr Marwick’s conclusion that the verges were highway land.

The court’s analysis demonstrates that the origin of the wide verges was somewhat uncertain, but at least partly attributable to an inter-war initiative by a predecessor highway authority to widen the roads, perhaps in anticipation of road improvements. The documentation was incomplete and, at least in the claimant’s view, inconclusive. It was not entirely clear under what powers the land had been acquired, whether all the land had been acquired (or the landowner had voluntarily resiled from its use), whether, insofar as it had been acquired, it had immediately become dedicated as highway land by virtue of statute, and whether the authority had maintained all the verges itself (or frontagers had maintained some of them).

A point was taken on documentation which showed, in any event, that the roads, including the verges, were included in the authority’s ‘list of streets’, a list of publicly maintainable highways which every highway authority is required to keep under s.36(6) of the Highways Act 1980 (it was apparent that the ‘list’ was in fact a map). Mr Marwick had advised the authority that the inclusion of the verges in the list had “not been challenged. This is strong evidence in itself that the land is highway land.” Mr Bell had argued that inclusion in the list of streets was not conclusive evidence of public highway status, and was “no greater than the evidence upon which it is based.” The court accepted, “that the plan showing the list of streets is strong evidence that the land is highway land, though not determinative.” There was a presumption of regularity about the list. But as the list was not the only evidence, and serious questions had been raised about its accuracy, the claimant was “entitled to explore the question of what, if any, evidence supports it.”

Mr Bell, and Somerford parish council, will now get a new opportunity to pursue the application, presumably through a ‘non-statutory’ public inquiry. If they succeed in contesting the evidence of highway status, they will still need to show that there was sufficient use of the land as of right for lawful sports and pastimes during 20 years preceding the application to justify registration. But if the application is granted, any plans which the highway authority formerly or now, or indeed the developer, had to use some of the land for road improvement or access to the development site, will have to be reviewed, with the possibility of further delay and costly provision of exchange land in order to release it from designation. Somerford parish council is not destined to be remembered in quite the same way as Sunningwell parish council, but for a relatively rural and sparsely populated parish outside the built-up area of Congleton itself, this was quite an achievement just the same.

Postcript: On reflection, even if the application land were found not to be highway land, the question arises — for what purpose was the land acquired by the council, and was use of the land by local people ‘by right’ or ‘as of right’? In R (Barkas) v North Yorkshire County Council and another, Lord Neuberger said (para.24), “where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use (whether for a limited period or an indefinite period), it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land ‘as of right’, simply because the authority has not objected to their using the land.” It is by no means inevitable that success on the narrow highway status point will secure the outcome that Somerford Parish Council seeks.