In R (London Jewish Girls’ High Ltd) v Barnet LBC, Lawtel AC9301237, Mitting J, on 20 February 2013, dismissed the claim, which concerned the disposal of land by a local authority for “best consideration” under s.123 of the Local Government Act 1972.  The Court was entitled to have regard to the consideration offered as at the date of the hearing of the claim for judicial review, and not simply the competing offers as they stood before the decision maker.  On this basis, the proposed sale did not breach s.123 in circumstances where the developer’s proposal was clearly the better bid, having regard to the cash offered together with overage payments. Mitting J went on give guidance (obiter) as to what matters could be treated as consideration for the purposes of s.123. He held that the value of affordable housing units as part of a development scheme and contributions under a section 106 agreement could not amount to consideration within the meaning of s.123, however he held, tentatively, that nomination rights over affordable housing were capable of amounting to consideration on the basis that these were benefits accruing to the Council from the use of the land that are of commercial and monetary value to the Council.

In Barkas v North Yorkshire County Council [2012] EWCA Civ 1373 CA held that a playing field, which had been acquired by a local authority under s80(1) of the Housing Act 1936 (now s12 of HA 1985), and thereafter maintained as a recreation ground, had been appropriated for the purpose of public recreation, and that, since the authority had an express statutory power to maintain the field for recreation purposes, local inhabitants using the field had been doing so, not “as of right” but rather “by right”. Therefore the field could not be registered as a town or village green. S10 of the Open Spaces Act 1906, considered by HL in R (Beresford) v Sunderland City Council [2004] 1 AC 889, is not the only example of land which is provided by a local authority as open space which the public use for recreational purposes “by right”.

Clause 12 of the Growth and Infrastructure Bill amends the Commons Act 2006 (“CA 2006”) so as to allow landowners to deposit a map and statement to protect their land from registration as a town or village green, whilst allowing access to it. ·Clause 13 excludes the right to apply to register land as a town or village green under s15(1) of CA 2006 where any specified event related to the past, present or future development of land occurs. Such events are known as ‘trigger events’ and these are specified in the table set out in Sch 1A to CA 2006, which is inserted by this clause. An example of such an event is the point when an application for planning permission is first published. Sch 1A also specifies terminating events which correspond to each trigger event and cause the exclusion of the right to apply under s15(1) to lift. Clause 14 amends an existing power to allow regulations to prescribe more flexible fees in relation to applications under Part 1 of CA 2006, including applications to register land as a town or village green.

The Explanatory Notes to the Bill state in relation to these Clauses:

“154. The rationale for reform is that currently applications for registering land as a town or village green under section 15(1) of the Commons Act 2006 are considered in isolation from the planning process. This in some cases leads to development which has planning permission being delayed or prevented. One of the recommendations of the Penfold review of non-planning consents was to review the operation of the regime for registering town or village greens in order to reduce the impact of current arrangements on developments which have planning permission. Implementation of this recommendation is achieved through clause 13, which aims to stop the registration system for town or village greens being used to stop or delay planned development. The reforms will protect local communities’ ability to promote development in their areas through local and neighbourhood plan-making. The proposals also aim to reduce the financial burden on authorities in determining applications and the costs to landowners whose land is affected by applications.”

The Explanatory Notes further state (para 156) that “it is highly debatable whether the right to use land registered as a town or village green for lawful sports and pastimes is a civil right since it is a form of local public right rather than a property right”, but in any event that “since the proposed measures do not determine the existence of any recreational rights, it is considered that Article 6 is not engaged; (para 160) that “it is considered that a right to use land registered as a town or village green for lawful sports and pastimes is not a possession for the purposes of Article 1 Protocol 1 (“A1P1”) and therefore this Article is not engaged; and (para 161) that, if the right to use a town or village green for lawful sports and pastimes were a possession, the Government considers that A1P1 would be “unlikely to be engaged”, since the right to apply for land to be registered as a town or village green “is not an existing possession”, but is “merely the right to apply for a future possession”, and that it is also considered that, in removing the right to apply for town or village green registration in certain circumstances, there is no interference with any claim since the legislation will affect future rather than existing applications

In R (Barnsley MBC) v SoS for CLG [2012] EWHC 1366 (Admin), Judgment of Foskett J on 24 May 2012, the Council made a CPO in respect of land in its area registered as a Village Green.  The Council relied upon s121 of LGA 1972 and s2 of LGA 2000.  The SoS took the view, however, that these provisions did not provide an enabling power.  He regarded the CPO as invalid, and declined to confirm it.  The Council brought judicial review proceedings to challenge his view.  The Judge agreed with the SoS.

The Council could acquire land by agreement under s120 of LGA 1972 for the purposes of the benefit, improvement or development of their area.  That was not, however, enough for a CPO under s121, as s121(2)(a) made clear.  The question therefore was whether s2 of LGA 2000 could be invoked.  Foskett J concluded that s2 was not intended to alter the LGA 1972 situation in relation to CPOs.