Town or village green – Registration – Procedural error – Resident of claimant parish applying to register undeveloped land as new town or village green – Defendant local authority refusing application relying on legal opinion – Claimant applying for judicial review – Whether legal advice vitiated by procedural error by allowing defendants to put in late evidence without giving applicant opportunity to comment – Whether decision procedurally erroneous without public fact finding inquiry – Application granted
A local resident applied to register an area of undeveloped land, situated between the tarmaced surface of the highway and adjoining land in the parish of Somerford in Cheshire, as a new town or village green (TVG) under section 15(2) of the Commons Act 2006. His application was supported by 31 other local residents who all described their use of the land as going beyond that which they understood they would lawfully be entitled to do on a public highway, namely to pass and re-pass.
Soon after, the interested party developer applied for outline planning permission for residential development on land which included the application site and objected to the TVG application. It obtained a legal opinion that the application site was highway maintainable at public expense and therefore not registrable as a TVG because the use of it by local people would have been by virtue of their highway rights and not “as of right”. The interested party subsequently obtained planning permission to develop part of the application site subject to an agreement under section 106 of the Town and Country Planning Act 1990.
The defendants rejected the TVG application, relying on the opinion of an independent legal expert (M) who found that the TVG land was part of the highway and could not be registered as a TVG.
The claimant parish council applied for judicial review of that decision contending, among other things that: (i) M’s advice was vitiated by procedural error by allowing the defendants to put in evidence opposing the TVG application out of time and not giving the applicant the opportunity to comment on the late evidence before giving his opinion; and (ii) the defendants’ decision was procedurally erroneous in that M had not held a public fact finding inquiry.
Held: The application was granted.
(1) There had been a significant procedural default by the defendants in submitting further evidence out of time without giving B the opportunity to comment on it before M produced his opinion. When it became apparent to M that the defect had occurred, it was up to him to consider taking the evidence into account to offer B the opportunity to make further representations. Proceeding to give an opinion without giving B that opportunity was a serious procedural defect which vitiated the fairness of the procedure.
(2) The fact that the application site had been included as publicly maintainable highway on the list kept by the highway authority pursuant to section 36(6) of the Highways Act 1980 was strong evidence that the land was highway land but not determinative. As the list was a statutory document, the presumption of regularity applied, particularly in the context of the defendants’ duty under section 36(6). However, the claimant had been entitled to explore the question of what, if any, evidence supported it.
Where there was room for ambiguity, the user by the inhabitants had to be such as the make clear not only that a public right was being asserted, but the nature of that right. On the evidence before the court in the present case, it could not be said that it was highly likely that M would have come to the same conclusion had he had the same information pursuant to section 31(2A) of the Senior Courts Act 1981. Nor was it necessarily the case that the use was by implied permission of the highway authority, rather than a qualifying use by trespass. Accordingly, the relevant threshold was not reached for the court to find that, even if the application land was not highway, the reasonable owner would assume that the use was of incipient highway rights and not TVG rights: R (on the application of Barkas) v North Yorkshire County Council [2014] UKSC 31; [2014] 2 EGLR 115 ; [2014] EGILR 33 applied. R (on the application of Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin); [2003] 23 PLR 60 and Oxfordshire County Council v Oxford City Council [2004] EWHC 12 (Ch); [2004] 1 EGLR 105 distinguished.
(3) In any case where there was a serious dispute, a registration authority would almost invariably need to appoint an independent expert to hold a public inquiry and find the requisite facts in order to obtain the proper advice before registration. Having considered in detail the further representations by the claimant in relation to the issue whether the application land was a highway, the court had concluded that there were sufficient factual disputes to require a public inquiry was necessary to determine the issues: R (on the application of Whitmey) v Commons Commissioners [2004] EWCA Civ 951; [2004] 4 PLR 68 considered.
Vivian Chapman QC (instructed by Wedlake Bell LLP) appeared for the claimant; Philip Petchey (instructed by Cheshire East Borough Council) appeared for the defendant; Morag Ellis QC (instructed by Gateley LLP) appeared for the interested party.
Eileen O’Grady, barrister
