England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 July 2013

Mr Justice Collins :

1. The claimants own land known as Bushfield Camp in Hampshire. Part of the land comprises what is now and has for some time been a disused military camp. The interested party (who has not put any arguments before me, being content to rely on those advanced by the defendant) has asserted that for a period of at least 20 years a significant number of the inhabitants of a locality or a neighbourhood within a locality have indulged as of right in lawful sport and pastimes on the land. Thus she has made an application to the defendant that the land be registered as a town or village green. The claimants wish to develop the land but are prepared to leave part of it as an open space. This is not acceptable to the interested party and those whom she represents.
2. The issue before me is whether the interested party's application was made in time. It is her case that there was the necessary user as of right for 20 years and that was brought to an end when the claimants erected a fence sometime during the week ending 13 July 2003. The significance of that is that Section 15(4) of the Commons Act 2006 which is applicable requires any such application to be made within 5 years of the date on which the user as of right was brought to an end. The application was made on 30 June 2008 but was not in proper form and so was not, as will become clear, duly made. The defendant allowed time for the application to be put in proper form. That was not achieved until 20 July 2009. The question is whether, as the claimants contend, the 5 year limitation means that it was by then out of time and so invalid or whether the true construction of the relevant statutory and regulatory provisions means that the application once amended is to be regarded as having been made within time.
3. The history of the law relating to town or village greens (TVGs) is set out in Oxfordshire County Council v Oxford City Council [2006] 2 AC 674. It makes sorry reading. It was far too complicated and there were a large number of problems relating both to the definition of TVG and what had to be established by an applicant and when a landowner could defeat such user. The Commons Act 2006 is Parliament's third attempt to devise an acceptable and workable scheme for the registration of TVGs. Section 15 of the 2006 Act lays down periods within which applications must be made and what action by landowners can defeat any such application. It, together with Regulations made to specify how applications must be made, is the crucial statutory provision.
4. Section 15 reads as follows, so far as material:-

"15 Registration of greens

(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies.

(2) This subsection applies where-

(a) a significant number of inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and

(b) they continue to do so at the time of the application.

(3) This subsection applies where-

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

(b) they ceased to do so before the time of the application but after the commencement of this section; and

(c) the application is made within the period of two years beginning with the cessation referred to in paragraph (b).

(4) This subsection applies (subject to subsection 5)) where-

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

(b) they ceased to do so before the commencement of this section; and

(c) the application is made within the period of 5 years beginning with the cessation referred to in paragraph (b).

(5) Subsection (4) does not apply in relation to any land where-

(a) planning permission was granted before 23 June 2006 in respect of the land;

(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and

(c) the land-

(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or

(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.

(6) In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and (4)(a), there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.

(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied-

(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and

(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land "as of right".

(8) the owner of any land may apply to the commons registration authority to register the land as a town or village green."

As will become apparent when I refer to the relevant ministerial statements, Section 15 was parliament's means of balancing the rights of landowners and local residents who had been exercising the rights necessary to establish the existence of a TVG. For a TVG to exist, there must have been acquiescence by the landowner for a period of at least 20 years. Since a TVG depended on access to the land as of right, express permission or consent could defeat it. Access had to be, as the old law put it, nec vi, nec clam, nec precario (neither by force nor secretly nor by permission).

5. In applicants' favour is 15(7), since where an application is made under s.15(2) in respect of a continuing right of access, a grant of permission cannot defeat it. But that does not apply in this case. S.15 commenced on 6 April 2007. Since the 5 year limitation under s.15(4) runs from a cessation of use by inhabitants which occurred before that date, the time within which an application could be made would vary and might be very short indeed. As is obvious, if the cessation ceased before 6 April 2002, no advantage could be taken of s.15(4). In this case, the period available to the applicant (assuming the date of cessation is correctly identified) amounted to some 2 ¼ years.
6. S.24 of the 2006 Act enables regulations to be made to make provision as to the making and determination of any application for the amendment of a register of TVGs. S.24(2) specifies what may in particular be provided for in Regulations. They include, as might be expected, the steps to be taken by an applicant, the form of an application, the information or evidence to be supplied with an application and the persons to be notified of an application. The relevant Regulations are the Commons (Regulation of Town or Village Greens)(Interim Arrangements)(England) Regulations 2007 (2007 No.457). The relevant regulations are 3, 4 and 5 which provide as follows:-

"3 – Application to register land as a town or village green

(1) An application for the registration of land as a town or village green must be made in accordance with these Regulations.

(2) An application must-

(a) be made on form 44;

(b) be signed by every applicant who is an individual, and by the secretary or some other duly authorised officer of every applicant which is a body corporate or unincorporated;

(c) be accompanied by, or by a copy or sufficient abstract of, every document relating to the matter which the applicant has in his possession or under his control, or to which he has a right to production;

(d) be supported-

(i) by a statutory declaration set out in form 44, with such adaptions as the case may require; and

(ii) by such further evidence as, at any time before finally disposing of the application, the registration may reasonably require.

(3) A statutory declaration in support of an application must be made by-

(a) the applicant, or one of the applicants if there is more than one;

(b) the person who signed the application on behalf of an applicant which is a body corporate or unincorporated; or

(c) a solicitor acting on behalf of the applicant.

4. Procedure on receipt of applications

(1) On receiving an application, the registration authority must-

(a) allot a distinguishing number to the application and mark it with that number; and

(b) stamp the application form indicating the date when it was received.

(2) the registration authority must send the applicant a receipt for his application containing a statement of the number allotted to it, and Form 6, if used for that purpose, shall be sufficient.

(3) In this regulation, "Form 6" means the form so numbered in the General regulations.

5. Procedure in relation to applications to which section 15(1) of the 2006 Act applies

(1) Where an application is made under section 15(1) of the 2006 Act to register land as a town or village green, the registration authority must, subject to paragraph (4), on receipt of an application-

(a) send by post a notice in form 45 to every person (other than the applicant) whom the registration authority has reason to believe (whether from information supplied by the applicant or otherwise) to be an owner, lessee, tenant or occupier of any part of the land affected by the application, or to be likely to wish to object to the application;

(b) publish in the concerned area, and display, the notice described in sub-paragraph (a), and send the notice and a copy of the application to every concerned authority; and

(c) affix the notice to some conspicuous object on any part of the land which is open, unenclosed and unoccupied, unless it appears to the registration authority that such a course would not be reasonably practicable.

(2) the date to be inserted in a notice under paragraph (1)(a) by which statements in objection to an application must be submitted to the registration authority must be such as to allow an interval of not less than six weeks from the latest of the following-

(a) the date on which the notice may reasonably be expected to be delivered in the ordinary course of post to the persons to whom it is sent under paragraph (1)(a); or

(b) the date on which the notice is published and displayed by the registration authority.

(3) Every concerned authority receiving under this regulation a notice and a copy of an application must-

(a) immediately display copies of the notice; and

(b) keep the copy of the application available for public inspection at all reasonable times until informed by the registration authority of the disposal of the application.

(4) Where an application appears to the registration authority after preliminary consideration not to be duly made, the authority may reject it without complying with paragraph (1), but where it appears to the authority that any action by the applicant might put the application in order, the authority must not reject the application under this paragraph without first giving the applicant a reasonable opportunity of taking that action.

(5) in this regulation, "concerned area" means an area including the area of every concerned authority.

(6) A requirement upon a registration authority to publish a notice in any area is a requirement to cause the document to be published in such one or more newspapers circulating in that area as appears to the authority sufficient to secure adequate publicity for it.

(7) A requirement to display a notice or copies thereof is a requirement to treat it, for the purposes of section 22 of the Local Government Act 1972 (public notices), as if it were a public notice within the meaning of that section. "

7. Regulation 10 is also material. It provides:-

"Land descriptions

(1) This Regulation applies to the description of any land which is the subject of an application for registration as a town or village green.

(2) Land must be described for the purposes of any application-

(a) by an Ordnance map accompanying the application and referred to in that application; or

(b) in the case of land already registered as common land, if the application relates to the whole of the land in a register unit, by a reference to that register unit.

(3) Any Ordnance map accompanying an application must-

(a) be on a scale of not less than 1:2,500;

(b) show the land to be described by means of distinctive colouring; and

(c) be marked as an exhibit to the statutory declaration in support of the application."

The significant part is the requirement that an ordnance map must accompany an application and must be on a scale not less than 1:2,500. Form 44 is set out in the Schedule to the Regulations. It specifies what must be contained in it and what the statutory declaration, which must accompany it, should contain. The difference in the headings to Regulations 4 and 5 is to be noted. Regulation 5 is limited to applications made under s.15(1). This excludes applications made by owners under s.15(8) since obviously the steps contemplated by Regulation 5 are unnecessary in dealing with applications by owners. There is hardly likely to be any objection to such applications.

8. Unfortunately, the application submitted by the interested party on 30 June 2008 was not retained by the defendant and there is no copy. It was returned to the interested party because it was not in the view of the defendant duly made, but it appeared to it that action by the interested party might put it in order. Its defects can be identified from a letter of 1 July 2008 sent to her by the defendants. I do not need to set out form 44 in detail. The letter refers to one relatively trivial and two more substantial deficiencies. The relatively trivial deficiency is a failure to delete from the statutory declaration paragraph 4, which relates to applications under s.5(8). There is also a reference to a failure to delete paragraph 2, but that is not easy to follow since paragraph 2 does seem to be relevant. However, it is I think clear that those omissions were not at all serious. The two defects of substance are identified in paragraphs ii) and iii) of the letter which read as follows:-

"ii) Question 6 of the application asks you to identify the locality or neighbourhood to which the claimed green relates. The map attached to the application form shows the claimed green, but does not appear to indicate the locality or neighbourhood to which your application relates. 'Locality' and/or 'neighbourhood' have a specific legal meaning within the context of village green registration (as indicated in the side-note to question 6 of the application form) – point 6 of Defra's Guidance contains further information on this subject.

iii) the application is made on the basis that section 15(4) of the Commons Act 2006 applies. That is to say, the application is said to be made within five years of the cessation of lawful sports and pastimes over the land. The date specified for the cessation of such activities is "a period of months during the summer of 2003". However, I note the evidence held on file in relation to the application for public footpaths over the same land appears to suggest that access was prohibited in the spring of 2003. I draw your attention in particular to a statement made and signed by you which indicates that access was first prohibited in the spring of 2003. I further note that the application to record public rights of way over the land was made on 17^th June 2003 and is accompanied by a copy of a poster referring to the "recent enclosure and fencing of the land". This may suggest that the current application (made on 30^th June 2008) is outside of the five-year time limit for applications made under section 15(4) of the 2006 Act. I would welcome your comments on this point."

The letter gave the interested party 6 weeks to respond and drew her attention to the possibility of obtaining advice from a lawyer or the Open Space Society whose telephone number and website details were provided.

9. The issue raised in paragraph ii) is important because a TVG can only be registered if it is established that a 'significant number of the inhabitants of any locality or of any neighbourhood within a locality have indulged as of right in lawful sports and pastimes on the land'. (see s.15(1) of the 2006 Act). Paragraph iii) suggests that the date of cessation must have been before 17 June 2003. Mr Karas did suggest in argument that the defendant in the circumstances could not reasonably have believed that the application might be put in order. However, that was not a ground of the claim and he accepted that he could not go so far as to submit that the opportunity given to put the application in order was unlawful. It may, however, indicate that the application may have factual difficulties if it can go forward.
10. The interested party replied just within the 6 weeks by letter of 11 August. She still failed to comply with what form 44 requires by not identifying the date when cessation occurred. She said there was 'one diary entry stating that the land was cleared in mid-May and a photograph of fencing dated July 16^th. She referred to her statement about access being prohibited in Spring 2003, stating that it was not helpful but was 'related to concerns about the nesting season'. She sought to defend the failure to apply for a TVG earlier because a Rights of Way claim had been made in June 2008 and the defendant had taken an altogether unreasonable time to deal with it. It was believed that it was not until April 2008 that she was advised that a TVG application should be made. I am afraid that her view that the TVG application was 'seen as an extension to the case submitted in 2003 rather than as an entirely new application' was entirely misconceived.
11. It was clear that the letter sent by the interested party did not deal with the defects in the original application. However, it was not until 28 October 2008 that the defendant responded to the letter of 11 August 2008. It seems that an application form was sent with the letter of 11 August because the defendant's letter identifies three continuing defects. These were the failure to give a specific date of cessation, the use of a map which was not of the appropriate scale and the identification of the area by a green line instead of a red line which was referred to in the answer to the relevant question. She was also told that the statutory declaration would have to be resworn.
12. No time within which the necessary amendment should be made was specified. It should have been. The interested party sent a letter to the defendant dated 8 December 2008 in which she asked for clarification of three matters. First, did 'as of right access' cease with either completion of the erection of a fencing enclosure or the placing of a notice? Second, did the defendant have a record of the dates of completion of enclosure and/or erection of signs and had the claimants given those dates to the defendant? Third, would the defendant regard the e-mail of 8 April 2008 indicating that there was an intention to make an application as the due date which met the five year limitation? She repeated her criticism of the failure to deal with the Rights of Way application within a reasonable time which, she said, would, if allowed, have made a TVG application unnecessary and the delay resulted in the 'very limited time that local residents had to prepare and submit an application for a TVG'. This letter shows that she had failed to take any proper advice before submitting her application. The excuses put forward carry little weight.
13. On 22 December 2008 the defendant replied and explained that use as of right meant without force, stealth or permission, that the answer to both parts of the second question was no and, since the regulations required the use of Form 44, the answer to the third question was no. Again, no time was specified for the application to be put in order. A letter of 3 February 2009 gave her until 1 March to respond if her application was to proceed.
14. On 12 February 2009 she said she intended to proceed, apologising for the delay because she had been away, and she would serve the amended application 'in due course'. On 8 April the defendant sent her a map since the claimants had "kindly consented to our assisting you in this way". She was given until 1 May to submit the application in proper form. If she did not, it would have to be rejected. She submitted the amended application on 1 May 2009. The statutory declaration had not been re-sworn and so there was still a defect. This was not picked up by the defendant until 16 July 2009 when the interested party was given until 24 July 2009 to resubmit the statutory declaration. She complied on 20 July 2009 which was over 12 months since the 5 year limitation period ended, when the application was duly made.
15. There has been very considerable delay since then. The defendant decided that an inquiry should be held to be presided over by Mr Leslie Blohm, Q.C. The claimants in their objections to the application suggested that the question whether the application complied with s.15(4) of the 2006 Act and the Regulations should be decided as a preliminary issue. There was considerable delay following the suggestion of the defendant that a without prejudice meeting between the claimants and the interested party should be held. The claimants were not persuaded that this was a good idea, but such a meeting was held on 9 June 2010. The claimants' indication that they would be prepared to provide an open space in the proposed development but did not persuade the interested party to withdraw her application. For some reason the defendant was unwilling to agree to ask Mr Blohm to deal with the preliminary issue. Since it clearly would potentially save costs, its reluctance seems unreasonable and it was only when judicial review was threatened that it changed its mind. This was not until January 2012. The claimants asked to be provided with the instructions given to Mr Blohm and for the notes of the without prejudice meeting to be removed from the bundle of material to go before him. Both requests were refused. That decision was plainly wrong. The instructions, as Mr Hobson accepted, should have been disclosed. They have since been in the course of this claim and so no point arises from that. The defendant sought to justify the retention of the note of the without prejudice meeting. While I have little doubt that the argument relied on should be rejected, I do not need to make a formal decision since Mr Karas recognises that its inclusion will do no harm to his case if the inquiry goes ahead.
16. Mr Blohm gave his opinion on 10 May 2012. He concluded that the application had been correctly considered to meet the limitation provisions in s.15(4) and the Regulations and so could be considered on its merits. I have in addition to his opinion advice from junior counsel, Ms Craill, given to the defendant that reached the same conclusion.
17. Reference was, as I have said, made to the minister's observations in relation to s.15(4). The purpose behind s.15 was to enable people to get land registered as a TVG if it had been genuinely used as of right for their recreation. The two year period in s.15(2) was to enable the inhabitants to do the necessary research and gather the necessary evidence to support an application. The minister (Lord Bach) said:-

"There is a balance to be struck. We must help landowners who wish to do so to achieve greater clarity about the status of such areas of land without encountering endless delay and uncertainty, but on the other hand there needs to be a fair opportunity for an application to be made to register land as a green if it has been used in a qualifying way for at least 20 years but its use is then brought into question."

18. There was, he said, a distinction to be drawn in relation to pre-Act cessation since that included cessation due to permission, whereas if s.15(2) applied, permission did not result in cessation: see s.15(7)(b). That was the purpose behind the 5 year period in s.15(4), to give the opportunity for an application to be made when it might not have been appreciated that use as of right had come to an end. I find nothing in the ministerial statements which assist me in reaching my decision. My attention has been drawn to the policy statement issued by DEFRA in relation to the power (which was not exercised) to deal with the issue under s.98 of the Countryside and Rights of Way Act 2000. it was said that there was an intention to use the regulation making powers to provide a fixed period (then thought to be likely to be 2 years) within which an application had to be made following a challenge to the use of the land. This would provide certainty for applicants, landowners and registration authorities as to the timescale of any application. While that was what DEFRA may have intended, that intention was never put into effect. I have to consider the true construction of the material provisions as they stand and I do not think DEFRA's indications really help to provide the correct answer.
19. Mr Karas submits that it is apparent that Parliament has decided to give a fixed period to enable applications to be made for a TVG. The reason for that period (which may be significantly less than 5 years if the cessation by whatever means occurred a considerable time before April 2007) was intended to benefit inhabitants who had enjoyed at least 20 years use as of right. But it was equally clear that the rights of the landowners had to be properly taken into account and protected. Thus it would not be in the least surprising if the mandatory provisions in the Regulations which determined when new applications should be made, the information required and the form in which such information should be given were intended to be strictly applied. It was for the applicants to ensure that they followed the requirements. If necessary, they could seek advice from lawyers or the Open Space Society, but form 44 made clear what was needed.
20. Mr Karas recognised that some deficiencies (such as, for example, in this case the failure to delete the reference to s.15(8) in the form) which would mean that the application was not duly made were indeed insubstantial. He suggested that in such cases the de minimis principle could be applied. However, if the application is defective and so is not duly made, the de minimis principle cannot mean if Mr Karas' submissions are correct that once the 5 year period has expired correction can mean that the application should be treated as having been made before the period expired. The de minimis principle could only apply to compel the registration authority to treat the application as duly made even though it did not comply with the mandatory requirements of the Regulations. That seems to me to be an undesirable recipe for litigation.
21. The landowner's rights are of course protected by Article 1 of the First Protocol to the European Convention on Human Rights (AIPI). In R(Newhaven Port and Properties Ltd) v SSEFRA [2013] EWCA Civ 673 the Court of Appeal in a judgment delivered on 14 June 2013 rejected a claim that s.15(4) of the 2006 Act was unlawful in being a disproportionate interference with the claimant's AIPI rights. Mr Karas accepted that a reasonable extension of the 5 year period, if I decided that the defendants' submissions were correct, would not be disproportionate. I shall deal in due course with some additions which he submitted should be imposed if I decided that way. I mention it now to indicate that the construction contended for by Mr Hobson will not necessarily fall foul of the Human Rights Act.
22. Reference was made to two decisions of the Court of Appeal which were said to be of assistance in answering the issue in this claim. These were R(Fellows of Winchester College) v Hampshire CC [2010] 1 WLR 138 and R(Marondas) v SSEFRA [2010] EWCA Civ 280. These concerned whether applications made to extinguish rights of way under s.67 of the Natural Environment and Rural Communities Act 2006 could be regarded as valid albeit not made in accordance with the provisions of the Act. The relevant condition was that before the relevant date an application had been made for an order under s.53(5) of an earlier Act. Section 67(6) of the 2006 Act involved in that case provided:-

"For the purposes of subsection (3), an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act."

This, the court decided, made clear that the application had to satisfy all the requirements of the paragraph. Parliament had made clear that no amendment could save an application which did not comply with the requirements. Not only can these decisions not assist Mr Karas, as he recognised, but in my view they tend to assist Mr Hobson. Parliament could easily have made it clear that no extension of the 5 year limitation period was to be permitted so that if not duly made when submitted it could not be rescued unless it was put in proper form before the limitation period expired. That would put an applicant at the mercy of the registration authority if an error were not identified before there was any opportunity to amend it.

23. Regulation 4 of the 2007 Regulations requires any application to be stamped and recorded. There is no provision that, where it is regarded as not duly made, once put in proper form there is any fresh record to be made. That, submits Mr Hobson, is consistent with an intention that the corrected application should be considered as having been made when it was originally submitted. Mr Karas relies on the removal in regulation 5(4) of the obligation to take formal steps, in particular to notify the landowner. This, he submits, is inconsistent with the ability to give retrospective effect because it would be manifestly unfair to a landowner not to be notified of an application when he would believe that he no longer faced a possible application for a TVG.
24. There is nothing in the wording of the Regulations which requires me to decide that there cannot be retrospective effect of a corrected application. It seems to me that, provided that the landowner is notified that an application has been made, there is no unfairness. It must be borne in mind that many applications for TVGs are made by interested persons acting without legal assistance and, since the rights sought will be for the benefit of the public, applications should not be defeated by technicalities.
25. I have no doubt that the Regulations ought to have required notice to be given, albeit not in a formal way, to a landowner. Fairness, which the common law can and should where possible write into statutory powers, so requires. Furthermore, the interference with AIPI rights means that such notification is essential. It will enable landowners to press the registration authority to ensure that the applicant is only given a reasonable time to put the application in order.
26. It follows that I am satisfied that in principle Mr Blohm Q.C., Ms Crail and Mr Hobson are right in submitting that a corrected application can have retrospective effect. However, Mr Karas submits with some force that the period allowed by the defendant was excessive and the interested party took far too long to do what was needed. I am sure Mr Karas' criticisms were right. However, the claimants were aware of the application and not only did they not press for an earlier resolution or let the defendant know that they considered its failure to deal with the matter earlier was unreasonable, but in March 2009 they were prepared to assist the interested party by agreeing to the provision of a map for her. Thus I do not think they can now complain that the long period before the application was put in order was unreasonable. If they had pressed the defendant and the interested party had as a result been given shorter periods to act different considerations would apply.
27. In the circumstances, I dismiss this claim.