Commons Register

February 7th, 2024 by James Goudie KC in Land, Goods and Services

COTHAM SCHOOL v BRISTOL CITY COUNCIL (2024 ) EWHC 154 ( Ch ) concerned a claim under  the Commons Registration Act 1965 foe an amendment of the Commons Register. The Court ruled that a local authority could not appear on the Court Record as two separate defendants, (1) in its capacity as Commons Registration Authority, and (2 ) as landowner. The Court also ruled that a claim by an Academy School for an entry on the Commons Register to be reversed was not an Aarhus Convention claim for the purposes of costs.



July 5th, 2023 by James Goudie KC in Land, Goods and Services

In R (Cilldara Group Holdings Ltd) v West Northamptonshire Council (2023) EWHC 1675 (Admin) the challenge by Cilldara to the Council’s discharge of its statutory duty on a land disposal generally to obtain best consideration reasonably obtainable under Section 123 of the Local Government Act 1972 (LGA 1972) failed before Steyn J, notwithstanding that Cilldara’s ultimate offer was nearly £1 million higher than the offer that was accepted from CDNL. There was a risk that Cilldara’s offer was not reliable. It was too generous to be credible. The apparent lack of attention on Cilldara’s part to the detail of the highly complex tenure of the land, the apparent failure to take any steps to investigate the ground conditions to assess the remediation required for a former landfill site, and the lack of information regarding how Cilldara intended to develop and extract value from the site, combined to give the Council rational grounds for considering that there was a high risk Cilldara was not seriously considering purchasing the land, but rather was seeking to disrupt the process to avoid CDNL doing so. The Council’s assessment that it had grounds to have much higher confidence that CDNL’s final offer was reliable and would proceed to completion, albeit that too was uncertain, was also reasonable, given CDNL’s and a Football Club’s existing interests in the Land, and CDNL’s approach to the offer process. It followed that the Council was reasonably entitled to take the view that Cilldara’s offer was not reasonably obtainable, and that CDNL’s fourth offer, which itself far exceeded the Council’s Red Book Valuation, represented the best consideration reasonably available. The Council had complied with Section 123(2) of LGA 1972.



June 28th, 2023 by lawrence in Land, Goods and Services

In RUSHMER v CENTRAL BEDFORDSHIRE COUNCIL (2023) EWHC 1341 (Ch) the Council was responsible, under the Commons Registration Act 1965 ( the 1965 Act ), for maintaining a Common Land Register for its area. The High Court made declarations as to the reliability of a photocopy Register entry and which map was the one adopted for the Register. The Court did not have power to correct or clarify the Register, but it did have power, outside administrative law processes, to identify the Register and restore to the public record the true decision that the commons registration authority had made. This was in order to provide certainty and was not prevented by Section 10 of the 1965 Act.



April 14th, 2023 by James Goudie KC in Land, Goods and Services

Section 77 of the Criminal Justice and Public Order Act 1994 enables a local authority to give a Direction that persons and any others with them leave land remove a vehicle or vehicles and any other property they have with them on the land if “ it appears “ to the authority that persons are fir the time being residing in a vehicle or vehicles within that authority’s area on any land forming part of a highway, on any other unoccupied land, or on any occupied land without the consent of the occupier. In R ( SO ) v THANET DISTRICT COUNCIL ( 2023) EWCA Civ 398 the Court of Appeal hold, at para 34, that the necessary state of affairs must exist at the time when the decision is taken to give the Direction. That is the point at which the authority decides what appears to it to be the case.



April 3rd, 2023 by James Goudie KC in Land, Goods and Services

R (STRACK) v SOS (2023) EWHC 655 (Admin) concerned an application for de-registration of a village green under the Commons Act 2006 and the scope of “neighbourhood” for the purposes of de-registration. Section 16(1) sets out the factors to be considered on such an application. One of those factors is “the interests of the neighbourhood”. The Court holds that the use of that word in Section 16 is different from its use in Section 15. A neighbourhood for the purpose of the former is broader than a “neighbourhood” within a locality for the purposes of the latter. When considering a de-registration application, “neighbourhood” is to be taken as referring to “local inhabitants”, without recourse to the history of the original registration.


Compulsory Purchase

March 9th, 2023 by James Goudie KC in Land, Goods and Services

In STOCKPORT MBC  v PERSONS UNKNOWN (2023) UKUT 53 ( LC ) it is held that where a local authority had acquired land under a CPO, but had been unable to identify the owner of the land, it was NOT required to serve a Notice to Treat, under Section 5 of the Compulsory Purchase Act 1965, prior to payment into Court of the amount of compensation determined by the UT and completion of the vesting of the land by Deed Poll. The Section 5 requirement to give a notice to treat to persons interested in the land applied only where such persons were “known to” the acquiring authority after making “diligent enquiry”.


Trust in favour of public

March 3rd, 2023 by James Goudie KC in Land, Goods and Services

Land which is subject to a statutory trust in favour of the public is held by a local authority for the purpose of the public’s enjoyment.  In order for an authority to dispose of this type of land it must comply with statutory consultation requirements under Section 123(2A) of the Local Government Act 1972 (LGA 1972).  The issue raised in R (DAY) v SHROPSHIRE COUNCIL (2023) UKSC 8 is what happens to the public right to use this type of land when the authority disposes of the land, but has failed to comply with these requirements. Read more »


Knotweed Damages

February 7th, 2023 by James Goudie KC in Land, Goods and Services

In DAVIES v BRIDGEND CBC (2023) EWCA Civ 80 the Court of Appeal considers whether there is an actionable nuisance and entitlement to damages for diminution in value of neighbouring land when the is knotweed on the defendant’s land. Potentially YES, if the knotweed encroaches from the Council’s land onto the claimant’s land and interferes with the claimant’s quiet enjoyment or amenity. NO, if the knotweed is only on the Council’s land, even if it is close to the boundary and there is a risk of it invading the claimant’s land. Any diminution in value of the claimant’s land is pure economic loss and not recoverable.


Toilet facilities

February 3rd, 2023 by James Goudie KC in Land, Goods and Services

In EARL SKILTON TOWN COUNCIL v MILLER (2023) EAT 5 the EAT upholds an ET decision that the Town Council had discriminated against an employee because of her sex by providing inadequate toilet facilities for women. Female employees suffered a detriment and were treated less favourably than male employees.


Use of land

February 1st, 2023 by James Goudie KC in Land, Goods and Services

In FEARN v BOARD OF TRUSTEESOF TATE GALLERY (2023) UKSC 4 the Supreme Court holds that it is possible, as a matter of principle, for a private nuisance to exist where residential property is subject to visual intrusion. A nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. To amount to a nuisance, the interference must be substantial, judged by the standards of the ordinary person.

Even where there is a substantial interference, the defendant will not be liable if it is doing no more than making a common and ordinary use of its own land. What constitutes an ordinary use of land is to be judged having regard to the character of the locality, eg whether it is a residential or an industrial area.

It is no answer to a claim for nuisance to say that the defendant is using its land reasonably or in a way that is beneficial to the public. In deciding whether one person’s use of land has infringed another’s rights, the public utility of the conflicting uses is not relevant. The benefit of land use to the wider community may be considered in deciding what remedy to grant, and may justify awarding damages rather than granting an injunction. It does not justify denying a victim any remedy at all.