The Open Spaces Society (OSS) has lost a High Court bid to stop fences being erected around part of a Surrey common.
The court backed a government decision to allow the 4,000m fence to be constructed on Wisley Common to facilitate low-intensity grazing on the site.
According to Surrey council, the grazing will “enhance” biodiversity on the common, which is designated as a site of special scientific interest.
Collins J said that, in granting approval for the fencing in October 2003, the secretary of state for the environment, food and rural affairs had not been statutorily required to hold a public local inquiry before making her decision.
He held that, under section 194 of the Law of Property Act 1925, an inquiry should be held only where, having had regard to all relevant considerations, the secretary of state thought it “necessary” to do so.
Any other interpretation, the judge said, would have the “absurd” result of requiring every section 194 application, however minor the works, to be considered at a public inquiry before approval could be given.
The OSS, led by general secretary Kate Ashbrook, opposed the fencing on the basis that it would have an adverse effect upon public enjoyment of the common and was “contrary to the public interest”.
The society argued that the problem of livestock straying from the common, which lies near the M25/A3 junction, could be controlled by shepherding.
Following the decision, Ashbrook said: “This case was in keeping with the society’s long tradition of going to the courts and parliament to defend our commons and clarify the law, which began with our formation in 1865.
“We are disappointed that we have lost in the High Court.”
However, she added that the society was “delighted” that the secretary of state had not asked the court for the OSS to pay the department’s costs.
This “most unusual” decision, she said, “must be because the secretary of state recognised the public interest in this case and that it raised importance questions of principle”.
The society said that it is now considering whether to seek leave to appeal.
R (on the application of Ashbrook) v Secretary of State for the Environment, Food and Rural Affairs Administrative Court (Collins J) 29 October 2004.
George Laurence QC and David Ainger (instructed by Zermansky & Partners, of Leeds) appeared for the claimant; Jonathan Karas (instructed by the Treasury Solicitor) appeared for the defendant.
References: EGi Legal News 01/11/04
