Defendant local authority granting option to claimant land developer to purchase land — Defendants subsequently registering land as village green — Whether user of land fulfilling criteria found in section 22 of Commons Registration Act 1965 — Defendants refusing to allow claimant to challenge evidence — Application for judicial review allowed
The defendant local authority granted the claimant land developer an option to purchase land. Local residents subsequently applied to the defendants, in their capacity as registration authority, to have the land registered as a village green. The defendants sent out questionnaires to the local residents to canvass their views on the manner in which the land was used. Each questionnaire was accompanied by a map, which was marked up to delineate the locality under consideration.
The claimant wished to object to the registration but was informed by the defendants that, under the Commons Registration Act 1965, the defendants were not obliged to hold a public hearing. On the basis of the evidence supplied by local residents, the defendants adopted the land as a village green. The claimants challenged the decision-making process by way of an application for judicial review, and applied to have the register amended on the ground that the provisions of section 22 of the 1965 Act had not been complied with.
Held: The application was allowed.
The definition of a town or village green was identified in section 22(1), as amended by section 98 of the Countryside and Rights of Way Act 2000, as “land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either (a) continue to do so, or (b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions”.
On the evidence, the criteria in that definition had not been met. Because the land was significantly overgrown, the users must necessarily have been highly restricted and it would have been impossible for local residents to have used the land for the sporting and leisure activities they described. The land had not been used “as of right” for the appropriate period. The users had withdrawn an earlier application for registration upon the claimant’s assertion of its claim; this amounted to tacit acceptance on their part that their use was not “as of right”: see R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 31 EG 85. Little settled authority existed on the meaning of the term “locality”, but the court could not accept that it was defined by the arbitrary marking up of a map, which would deprive the term of any significance. In order to constitute a “locality”, some essential characteristic of “community” was required; this had to amount to more than a mere indication of a geographical area.
Although there was no statutory requirement for an oral hearing in order to challenge an application for registration, in the interests of fairness, a non-statutory inquiry should have been held in order for the claimant to challenge the evidence adduced in support of the registration application. The regulating authority had discretion as to procedural requirements, but they also had an obligation to take reasonable steps to consider objections to the application. On the evidence, the decision was manifestly flawed and could not be allowed to stand.
George Laurence QC and Ross Crail (instructed by Burges Salmon, of Bristol) appeared for the claimant; Philip Petchey and Alexander Booth (instructed by the solicitor to South Gloucestershire Council) appeared for the defendants.
Vivienne Lane, barrister
