Proposal to fence common land — Consent given by secretary of state — Whether secretary of state required to hold public inquiry — Section 194(1) of Law of Property Act 1925 — Claim dismissed
The claimant was the general secretary of the Open Space Society, which opposed proposals by the county council to erect stock fencing around part of a common. The land was designated as a site of special scientific interest, supporting rare heathland species, and the fencing was intended to facilitate the introduction of low-intensity grazing as a means of preserving the heathland. An application was made to the defendant secretary of state for consent to the fencing under section 194(1) of the Law of Property Act 1925. Section 194(1) required the secretary of state to have regard to the same considerations as were directed by section 10 of the Commons Act 1876, and, “if necessary”, to conduct the same inquiries as that Act prescribed. The secretary of state decided to give her consent without holding an inquiry.
The claimant brought judicial review proceedings, seeking to quash the secretary of state’s decision on the ground that her failure to hold an inquiry rendered it unlawful. The claimant did not contend that the decision to give consent was irrational. However, she argued that, in line with the procedure under section 10(6) of the 1876 Act, an inquiry was “necessary” within the meaning of section 194 in every case where an applicant had, in their application, established a prima facie case for the grant of consent. The secretary of state submitted that an inquiry need be held only where, having had regard to the considerations directed by section 10, she was of the view that it was “necessary”.
Held: The claim was dismissed.
The defendant’s construction of section 194(1) was correct. The claimant’s construction would have the absurd result that every application falling within section 194(1), however minor the works, would have to be considered at a public inquiry, whether or not there had been any objections and even if the works would, in everyone’s view, be beneficial and desirable. Moreover, on the claimant’s construction, no sensible effect could be given to the words “if necessary”, which would be mere surplusage.
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.
Sally Dobson, barrister
