Malpass, R (on the application of) v The County Council of Durham

Malpass, R (on the application of) v The County Council of Durham

The decision to refuse registration was flawed because it relied on an erroneous legal test (the 'Scott test') and an informal appropriation theory not supported by law. The inspector did not find as a fact that the land was held under the 1875 or 1906 Acts prior to the 1964 Deed, and the Deed itself could not retrospectively appropriate the land without statutory compliance. The matter must be remitted for reconsideration in light of new evidence and proper legal principles.

Parties
Claimant: Stephen Malpass; Defendant: The County Council of Durham
Jurisdiction
England and Wales
Judgment Date
25 July 2012
Procedural Posture
Judicial Review / Judgment After Substantive Hearing
Outcome
Decision of the County Council of Durham (CRA) refusing registration quashed; matter remitted for reconsideration.
Legal Topics
Commons Registration, Town or Village Green, Statutory Trusts, Appropriation of Land, Judicial Review Procedure
Administrative Law Land Law Local Government Law Commons Registration Town or Village Green Statutory Trusts Appropriation of Land Judicial Review Procedure

Case Brief

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Parties

Stephen Malpass

Claimant

The County Council of Durham

Defendant

Procedural Posture

Judicial Review / Judgment After Substantive Hearing

Legal Issues

  1. 1 Whether the refusal to register Belle Vue Playing Fields as a town or village green was based on an error of law regarding the effect of the 1964 Deed and the statutory basis for holding the land.
  2. 2 Whether the land was held 'as of right' or 'by right' under a statutory trust for public recreation.

Ratio Decidendi

The decision to refuse registration was flawed because it relied on an erroneous legal test (the 'Scott test') and an informal appropriation theory not supported by law. The inspector did not find as a fact that the land was held under the 1875 or 1906 Acts prior to the 1964 Deed, and the Deed itself could not retrospectively appropriate the land without statutory compliance. The matter must be remitted for reconsideration in light of new evidence and proper legal principles.

Court Disposition

Decision of the County Council of Durham (CRA) refusing registration quashed; matter remitted for reconsideration.

Orders

  • The refusal decision is quashed.
  • The matter is remitted to the defendant for fresh consideration in light of the judgment and new evidence.