The High Court has ruled in a time-limits battle over a transitional provision of the Commons Act 2006 that gave a five–year “grace period” for town and village green (TVG) applications, even where public use of land had ceased.
Last month, in the long–running battle over a Newhaven beach TVG, the Court of Appeal rejected a claim that section 15(4) of the Act was incompatible with Article 1 of the First Protocol of the European Convention on Human Rights.
Now Collins J has delivered his ruling on what is required to comply with the five–year time limit imposed by the section, and whether an application to register a TVG is “made” for the purposes of s15(4) when it is received by the local authority concerned, or when any defects in the application are finally resolved.
The judge rejected a claim by the Church Commissioners for England, the owners of a former military camp in Winchester that Barbara Guthrie’s application to register it as a TVG should have been rejected by Hampshire County Council for failure to comply with the five–year time limit because defects were resolved a year too late.
He ruled that corrections could have a retrospective effect and that TVG applications should not be allowed to be defeated by “technicalities”.
The ruling means that her application to register the disused Bushfield Camp site as a TVG can now proceed to a public inquiry before an inspector.
However, the judge granted the Church Commissioners permission to appeal his decision, which may delay the inquiry.
He said that the case raised an issue that may affect other applications.
S15(4) is a transitional provision which enabled applicants to apply to register land as a village green even though it ceased to be used for recreation before the 2006 Act came into force. Applications under the section were required to be made within five years of the cessation of use and the period of grace conferred by the section finally ended on 5 April 2012.
While the extent of prior public use of the land is disputed, it was common ground that the time limit in this case started running in July 2003 when the Church Commissioners erected a fence.
They claimed that, although the application was received by the Council in June 2008 within the time limit, it contained four defects that were not ultimately resolved until July 2009.
As a result, they said the application was not “duly made” until too late.
They argued that it was Parliament’s intention in enacting s15(4) that landowners should not be subject to endless uncertainty, and that the key date should be when a valid application is made.
However, Mrs Guthrie maintained that under the clear terms of the Act and the Commons Registration (Interim Arrangements) (England) Regulations 2007, the application is “made” at the point that it is received.
Ruling in her favour, Collins J said: “There is nothing in the wording of the Regulations which requires me to decide that there cannot be retrospective effect of a corrected application. It seems to me that, provided that the landowner is notified that an application has been made, there is no unfairness.
“It must be borne in mind that many applications for TVGs are made by interested persons acting without legal assistance and, since the rights sought will be for the benefit of the public, applications should not be defeated by technicalities.”
The commissioners had argued that the council had allowed an excessive period for corrections and that Mrs Guthrie took far too long to do what was needed, but the judge said: “However, the claimants were aware of the application and not only did they not press for an earlier resolution or let the defendant know that they considered its failure to deal with the matter earlier was unreasonable, but in March 2009 they were prepared to assist the interested party by agreeing to the provision of a map for her.
Thus I do not think they can now complain that the long period before the application was put in order was unreasonable. If they had pressed the defendant and the interested party had as a result been given shorter periods to act different considerations would apply.”
At the public inquiry, the Church Commissioners will argue that the necessary 20–year period of public use of the land as of right cannot be proved. The site is currently accessible by the public by the Church Commissioners’ express permission. They plan to develop part of it, and retain the rest as public open space.
R on the application of The Church Commissioners for England v Hampshire County Council Administrative (Collins J) 10/07/2013
Jonathan Karas QC and Benjamin Faulkner (instructed by Farrer & Co) for the claimant John Hobson QC and Philippa Jackson (instructed by Solicitor to the County Council) for the defendant