Town or village green (TVG) – Registration – Time limit – Interested party applying to have land registered as TVG – Application not being duly made in proper form within statutory time limit – Claimants contending application out of time – Whether corrected application having retrospective effect – Claim dismissed
The claimants owned land in Hampshire, part of which was a disused military camp. The interested party asserted that, for a period of at least 20 years, a significant number of local inhabitants had indulged as of right in lawful sport and pastimes on the land. Therefore, she applied to the defendant local authority to have the land registered as a town or village green (TVG) pursuant to section 15 (1) of the Commons Act 2006. The claimants wished to develop the land but were prepared to leave part of it as an open space. That was not acceptable to the interested party and those she represented.
An issue arose whether the interested party’s application had been made had been made in time. It was 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 was that section 15(4) of the 2006 Act required any such application to be made within five years of the date on which the user as of right was brought to an end. The application was submitted on 30 June 2008 but was not in proper form and so had not been duly made. The defendants allowed time for the application to be put in proper form but that was not achieved until 20 July 2009.
The question was whether, as the claimants contended, the five year limitation meant that the application was by then out of time, and so invalid, or whether, on the true construction of the r2006 Act and the Commons (Regulation of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 (SI 2007/457), the application once amended was to be regarded as having been made within time.
Held: The claim was dismissed.
(1) The Commons Act 2006 was parliament’s third attempt to devise an acceptable and workable scheme for the registration of TVGs. Section 15 laid down periods within which applications had to be made and what action by landowners could defeat any such application and 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.
(2) The 2007 regulations provided that an application had to be made on form 44 which specified what had to be contained in it. Regulation 4 required any application to be stamped and recorded. However, there was no provision that where it was regarded as not duly made, once put in proper form, there was any fresh record to be made. There was nothing in the wording of the regulations which required the court to decide that there could not be retrospective effect of a corrected application. Provided that the landowner was notified that an application had been made, there was no unfairness. Many applications for TVGs were made by interested persons acting legal assistance and, since the rights sought would be for the benefit of the public, applications should not be defeated by technicalities: R (on the application of the Fellowes of Winchester College) v Hampshire County Council [2010] 1 WLR 138 and R (on the application of Maroudas) v Secretary of State for the Environment, Transport and the Regions [2010] EWCA Civ 280; [2010] PLSCS 85 considered.
(3) The 2007 regulations ought to have required notice to be given, albeit not in a formal way, to a landowner. Fairness, which the common law could and should where possible write into statutory powers, so required. Furthermore, the interference with the landowner’s rights under article 1 of the first protocol to the European Convention on Human Rights meant that such notification was essential. It would enable landowners to press the registration authority to ensure that the applicant was only given a reasonable time to put the application in order. It followed that a corrected application could have retrospective effect.
(4) The claimants had argued that the period allowed by the defendant for the application to be put in proper form had been excessive and that the interested party had taken too long to make the necessary amendments. However, the claimants had been aware of the application and had neither pressed for an earlier resolution nor informed the defendants that they considered the failure to deal with the matter sooner to be unreasonable. Thus they could not now complain that the long period before the application was put in order had been unreasonable. If they had pressed the defendants and the interested party had been given a shorter time within which to act, different considerations would have applied.
Jonathan Karas QC and Benjamin Faulkner (instructed by Farrer & Co) appeared for the claimants; John Hobson QC and Philippa Jackson (instructed by the solicitor to Hampshire County Council) appeared for the defendants.
Eileen O’Grady, barrister
