Ref. Barnsley Metropolitan Borough Council, R (on the application of) v Secretary of State for Communities and Local Government & Ors  EWHC 1366
The above case refers to a section of land in Cudworth, Barnsley (South Yorkshire) which was registered within the Commons Act 2006 on January 13 2009 after public enquiry. As such, this land was protected by a right of common at the time of an attempt to compulsorily acquire the green by Barnsley Metropolitan Borough Council.
The attempt originated from complaints subsequent to registration, of unlawful incursions onto the land and misuse of the amenities. Barnsley Council applied for a compulsory purchase order (CPO), invoking the powers conferred by s. 121 of the Local Government Act 1972 and s. 2 of the Local Government Act 2000, in order to properly secure the land and ensure its continued availability as public amenity land.
Regardless, the Secretary of State for Communities and Local Government, Eric Pickles MP, denied the CPO on the grounds that both statutory provisions, even when combined, do not provide the power to compulsorily purchase land of this type.
The local authority challenged this decision, invoking the legal doctrine of ‘judicial review’ under which legislative and executive actions can be subject to scrutiny, and potentially invalidation, by the judiciary; in this case the High Court.
Consequently, High Court Mr Justice Foskett commented:
“The extent to which the (obviously) wide powers conferred upon local authorities in the 2000 Act has impacted on the normally restrictive approach to the use of compulsory purchase powers seems, on the material put before me, to be relatively uncharted territory,
“My inclination is to the view (supported by the court’s normally strict view of the use of compulsory purchase powers…) that the 2000 Act was passed with a clear appreciation that sections 120 and 121 of the 1972 Act remained in force with full effect and that section 2 of the 2000 Act was not intended to alter the situation in which land could not be acquired compulsorily by a local authority simply for the ‘benefit, improvement or development’ of the local area. That can be achieved only by agreement.”
He concluded that Mr Pickles was right to say that the CPO in this case would not be justified on the basis of a combined use of s. 2 and s. 121, adding that s. 121 could not apply because of the exclusion of its use in the circumstances by subsection 2(a).
“I am fortified in this conclusion by the fact that there is no express reference in any of the guidance relating to the 2000 Act to the use of that Act in the kind of way sought to be used in this case,” he said.
“I recognise that it could well be said that this was just the sort of imaginative use of the new powers that Parliament had in mind. However, depriving a landowner of land that belongs to him, no matter how popular it may be with other local people, is not something the law permits lightly and I would need to be persuaded that it was truly Parliament’s intention that something like this could be achieved before characterising the Secretary of State’s view in this case as wrong in law.”
No further appeals will be sought, resulting in this case becoming an important precedent in determining the actions of future councils where misused land needs to be adopted and protected. It appears that such an act will be extremely difficult to achieve in the future unless statutory change is exacted, because existing legislation appears to suggest that compulsory purchase powers already vested in the authorities are not sufficient to enable them to be used for the acquisition of land protected by a right of common.
The result, as in the case of Barnsley Borough Council, may be socially valuable common land doing without protection from misuse and vandalism in the foreseeable future.