Richard Naylor, a resident of Walton-on-the-Naze, had applied for judicial review of the County Council's decision in 2011 to refuse to register a piece of land in the town, that had been used by members of the public for dog walking and recreation since at least 1954, as a village green. Naylor argued that an inspector had incorrectly interpreted the law in recommending that the County Council refuse to register the land and that the County Council had been mistaken in agreeing with the inspector in its decision.
John Howell QC, sitting as deputy High Court judge, dismissed the claim, agreeing with the inspector that the public's use of the land had been "by right", that is lawful use in accordance with a right that has been given; rather than "as of right", which is use as though a right has been given when in fact it has not. For this reason, he said that the land could not be registered as a town or village green under the requirements of the relevant legislation.
The judge found that Tendring District Council's actions in cutting the grass, picking up litter and providing and emptying bins for dog waste on the land over many years suggested that an arrangement existed between the District Council and the private landowner to manage the site for the public to enjoy, and that any such use was with permission.
"While the arrangement with the District Council subsisted, the landowner could not have contended that any member of the public using the land was a trespasser, any more than any landowner could do in respect of any person to whom he had given a revocable permission to use it for that purpose," said the judge. "Members of the public could use it for recreational purposes 'by right'."
The judge also agreed with the inspector that a requirement for land to be in uninterrupted use for public recreation for 20 years so as to qualify for 'village green' status had not been met. Three months of engineering works to the adjoining sea wall in 1993 had interrupted the public's use of the land, the judge said, despite the land not having been physically fenced off during this time.
"If there are works carried out that mean that the use of the land for lawful sports and pastimes cannot continue, in my judgment there is no reason why such a use should be treated as continuing, even if members of the public are not physically excluded from the area of the works, for example, by a fence," said the judge.
The judgment means that current owners, Silverbrook Estates Limited, who purchased the land in 2009, can bring forward plans to develop the site. The developers withdrew an outline application for the 129-home redevelopment of the site and surrounding land in 2013, in the face of strong opposition from Natural England over the proposed loss of salt marsh habitat under the proposals.
