Village Green Deregistration Appeal

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, a subsidiary of the housebuilder Taylor Wimpey, applied to deregister part of the village green, proposing to provide ‘exchange land’ to offset the loss.  

The Court of Appeal decision clarified the process for deregistration and the proper understanding of the rights held by ‘qualifying inhabitants’ and others locally.  Though the majority held that the Inspector had made a legal error, they found that the error would not have made a difference to the outcome and therefore dismissed the appeal.  An application has now been made to the Supreme Court for the appeal to be heard by that Court. 

The appeal to the Supreme Court 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 Court’s approach to the use of section 31(2A) of the Senior Courts Act 1981; and whether the Court of Appeal overstepped its role in making an assumption about the weight that would have been given to factors in the balancing exercise in the absence of the legal error.

High Court Challenge

The grounds of claim 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.

Court of Appeal and Application to Supreme Court

On 7 June 2023, the Court of Appeal granted permission to appeal against the High Court judgment. The grounds for the appeal were (in summary):

• 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.

Permission to appeal was granted in June 2023 but in April 2024 the appeal was dismissed.  The majority (Singh and Laing LJJ) held in relation to ground 1 of the appeal that the Inspector had conflated the interests of the public and those of the “qualifying inhabitants” – i.e. the residents of the neighbourhood on whose behalf the village green was registered and who therefore had rights over the village green. The Inspector had been wrong to say that the public had rights over the village green and to consider the ‘interests of the neighbourhood’ without understanding the distinction between those who had rights (because they lived in the relevant neighbourhood) and other residents outside the relevant neighbourhood who did not have any such rights.

However, the majority held that the legal error was not material because the Inspector engaged in a balancing exercise “and the question of the weight to be given to those interests was essentially a matter for his judgment”.  The Majority disagreed with Lindblom SPT, who held that no error had occurred.

On Grounds 2 and 3, the Court (2) agreed with the High Court judge that the 2015 Common Land Consents Policy essentially did not add anything beyond the balancing test already set out in the statute and its language stating that “that the interests … will be no worse off in consequence of the exchange” did not mean that particular interests would be no worse off, but meant that the balance of interests taken as a whole would be no worse off; and (3) agreed with the Judge below for the reasons he had given.

An application has now been made to the Supreme Court (as described above) for permission to appeal.  If the application is granted, the appeal will proceed to a hearing in the Supreme Court.

Costs Protection Secured

It is a notable feature of this case that 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 made clear they 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.

Instructed counsel are David Holland KC and Joseph Thomas of Landmark Chambers.