Town or village green (TVG) – Registration – Time limit – Commons Act 2006 – Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 – Application to register TVG under section 15 of 2006 Act – Application not made in form required by 2007 Regulations within statutory time limit – Corrected application subsequently accepted by respondent registration authority – Whether corrections having retrospective effect from date of original application – Whether time given for corrections exceeding “reasonable opportunity” within regulation 5(4) – Appeal allowed
In June 2008, the interested party applied to the respondent local authority to register land owned by the appellants as a town or village green (TVG), under section 15 of the Commons Act 2006, on the ground that by a significant number local inhabitants had indulged as of right in lawful sport and pastimes on the land for a period of 20 years. The 20-year period on which she relied ended in July 2003, when appellants had fenced off the land.
The application was first submitted in June 2008 but was defective since it failed in several respects to comply with the detailed requirements of the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007. The respondents pointed out the errors to the interested party, including the omission of a map to the correct scale, and correspondence ensued with a view to achieving the necessary corrections. In October 2008, the respondents informed the interested party that the application was still defective and that, if it were not put in order, they would have to reject it under regulation 5(4) as not having been duly made. In February 2009, they indicated that, if the interested party did not respond by the beginning of March 2009, they would assume that she did not wish to proceed with the application. Subsequently, with the consent of the appellants, they provided the interested party with a map to the required scale. They also gave a further time extension to May 2009. After further correspondence, an application in the correct form was submitted in July 2009.
The respondents then notified the appellants of the application. The appellant submitted an objection, arguing that the application was invalid since it had been made outside the time limit prescribed by section 15(4), namely five years from the date when the relevant use had ended.
In proceedings on that issue, it was held that an application for registration could be corrected and that, if the corrections were made within a reasonable time, they would take effect retrospectively from the date when the application had first been filed. The judge found that the interested party’s application had been so corrected and was accordingly in time: see [2013] EWHC 1933 (Admin); [2013] PLSCS 163. The appellants appealed.
Held: The appeal was allowed.
(1) The judge had been correct to hold that, as a matter of statutory interpretation, an application for registration could be corrected retrospectively. Regulation 5(4) of the 2007 Regulations provided a limited possibility for correction, by suspending the registration authority’s right to reject a non-compliant application and thus its obligation to give notice of application to persons interested in the land and to the public, until the applicant had been given a “reasonable opportunity” to put her application in order. If the application did not comply with the regulations, regulation 5(4) enabled the registration authority to reject it without going through the procedure of giving notice to the landowner and others, but, if the authority thought that the applicant could correct the errors, it could give a reasonable opportunity to do so. If the applicant corrected the errors within the reasonable opportunity so given, then the original application had full force and effect. Regulation 5(4) was retrospective in that regard; it provided a means for curing deficiencies in an application that did not provide all the statutory particulars, and, once an application was so cured, it was treated as duly made on the date on which the original defective application had been lodged.
(2) Whether an applicant had been given a reasonable opportunity was a question of law for the court, rather than a decision for the registration authority, reviewable only on Wednesbury grounds. The court had to evaluate all the relevant facts and circumstances and, in doing so, it would take into account any special expertise or knowledge possessed by the registration authority. If the trial judge had heard oral evidence, an appellate court would take into account that the judge had had that advantage. The requirements for registration applications represented a balance between the interests of the public and those of the landowner. The obligation on the registration authority to accept a valid application, including one that, although defective, could be made valid without undue difficulty, had to be balanced against their obligation to reject an application that did not comply with the statutory requirements. The balancing exercise was a purely pragmatic one, to be exercised on the facts of the particular case. Although the test of reasonable opportunity was in principle an objective one, parliament had anticipated that applicants would often be private individuals acting without professional advisers and it was proper to take into account those particular characteristics of the applicant. Moreover, the fact that the approach was objective would not prevent the special characteristics of the land being taken into account where there was a pressing need to resolve the status of the land for planning purposes. Although the court would normally decide whether an opportunity was reasonable by looking at the circumstances at the time of the decision, a landowner might act in such a way as to waive its right to object to the length of time given; for that purpose, standing by with knowledge of the defect would not generally suffice and there would instead have to be some positive action by the landowner with knowledge of the relevant facts.
In the instant case, the necessary balance had been struck by the time the interested party had been given nine months to correct her application and help in completing it. Although the applicant had no professional help with filing her application, she had been given reasonable extensions of time within which to get it right. She had been warned that she had to complete the application within a period of time and she had exceeded that period on more than one occasion without explanation. Although the appellants had been aware from the outset that there were critical deficiencies in the application, they were not aware that the respondents had given specific and adequate extensions, which she had failed for no good reason to comply with. In all the circumstances, the time given to the interested party was more than reasonable opportunity within regulation 5(4).
Jonathan Karas QC and Benjamin Faulkner (instructed by Farrer & Co LLP) appeared for the appellants; John Hobson QC and Philippa Jackson (instructed by the legal department of Hampshire County Council) appeared for the respondents; the interested party did not appear and was not represented.
Sally Dobson, barrister
