We act for an individual on behalf of the Woodcock Hill Village Green Committee, a residents’ group that has worked to maintain the Village Green for years. The applicant, Laing Homes, a subsidiary of the housebuilder Taylor Wimpey, applied to deregister part of the village green, proposing to provide ‘exchange land’ to offset the loss. Though the claim was dismissed in the High Court, permission to appeal has now been granted by the Court of Appeal which will consider whether the decision was legally flawed at an upcoming hearing.

The appeal raises two important points of principle:

• The scope of the rights held by those residents with rights to use a village green and how these must be assessed when dealing with applications for deregistration or exchange under the Commons Act 2006.
• The extent to which a developer may enhance its case for deregistration, by preventing or impeding works by the qualifying residents to maintain the accessibility and ecological value of a village green.

Costs Protection Secured

Initially, both the Government Legal Department on behalf of the Secretary of State and the developer Laing Homes argued that the claim did not qualify as an “Aarhus Convention Claim” under the civil procedure rules, which would mean that the residents were not eligible for a cap limiting their risk of paying opponents’ costs. Residents were unable to bring the claim given the costs risk involved.

We successfully argued that the claim clearly qualified for Aarhus Convention costs capping and both the Secretary of State and the developer eventually conceded, agreeing that the residents’ costs risk should be capped in this claim. The amount of the cap was disputed, but based on evidence provided by the Claimant, the Judge reduced the default cap to £7,500, rejecting the argument of the Government and the developer that the cap should be £10,000.

High Court Challenge

Permission was granted in September 2022 by a High Court Judge to proceed to a full substantive hearing of both of the Claimant’s grounds. These grounds related to (1) the definition of “the neighbourhood” whose interests the Inspector must consider when determining the application and (2) whether residents have a right to maintain the land to enhance its biodiversity value, which the Inspector disregarded when assuming that the land would degrade over time. A full hearing of the case was held on 15 February 2023.

Mr Justice Lane dismissed the Claimant’s two grounds for (in summary) the following reasons:

• Concerning ground one, the Judge found that the Inspector appreciated the difference between the rights of those who had rights over the village green and the interests of the public generally and there was no legal error in not giving any ‘precedence’ to the former, or in balancing these off against each other in considering the interests of the “wider neighbourhood”
• On the second ground, the judge found that the Inspector had not been required to consider the respective parties’ arguments about whether the residents had a legal right to maintain the land’s biodiversity value as a ‘lawful sport and pastime’ and that his determination that the land would continue to degrade “unless maintenance work resumes” had given sufficient regard to the issue before the inspector of what the effect on nature conservation would be.

Permission to Appeal

However on the 7 June 2023, the Court of Appeal granted permission to appeal against the High Court judgment. The grounds for the appeal are (in summary) as follows:

• The rights of the qualifying residents and the public had, indeed, been conflated, contrary to the High Court judge’s findings.
• The judge departed from the 2015 Common Land Consents Policy’s intended meaning when holding that it did not require the interests of residents with rights over the village green to be no worse off in consequence of the exchange.
• The judge erred when holding that the Inspector had committed no error of law in his consideration of the ‘fallback option’ of the relevant inhabitants maintaining the land. Whilst there was consideration of what had occurred in the past, there was no proper assessment of what would happen in future in terms of maintenance of the Green, to promote its ecological value.

The appeal will be heard in January 2024, with judgment to follow thereafter.  Instructed counsel are David Holland KC and Joseph Thomas of Landmark Chambers.