Town or village green – Registration – Correction – Interested party applying to have part of college sports ground registered as town or village green – Defendant authority allowing interested party to correct defects in application form and treating application as duly made – Claimant landowner applying for judicial review – Whether correction of defective applications to ensure duly made under Commons Act 2006 being limited to one occasion only – Application dismissed
In September 2014, the claimant college lodged a statement with the defendant local authority under section 15A of the Commons Act 2006 and section 31(6) of the Highways Act 1980 in respect of the Grange Farm University sports ground in west Cambridge. The effect of the deposit was to bring to an end any period during which local inhabitants might have indulged as of right in sports and pastimes on the land. Notices were erected on the land to that effect.
In response, the interested party, on behalf of the North Newnham Residents Association, applied to register part of the land as a town or village green under section 15 of the 2006 Act, which would allow them access. The application was defective in a number of respects but the defendants allowed the interested party to amend it. The claimant argued that application was invalid because the interested party had been allowed to make two corrections to it when they should only have been allowed to make one. However, the defendants informed the claimant that they regarded the application as having been duly made. The claimant applied for judicial review of the defendants’ decisions to allow the interested party a further opportunity to remedy purported defects regarding locality and treat the application as duly made.
The claimant argued that regulation 5(4) of the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Order 2007 conferred only a limited possibility of correction for defective applications under the 2006 Act. The registration authority had to comprehensively identify the action an applicant was required to take to put the application in order and the applicant had to correct the defects so identified within the short period of time which the authority had to specify. Where the registration authority gave an applicant what it later considered to be an insufficient period of time to take action, it could extend the time for taking action but it could not give the applicant a separate, later opportunity to take some different action.
Held: The application was dismissed.
(1) The claimant’s interpretation of regulation 5(4) did not accord with the underlying legal policy, was contrary to its language and was unrealistic in practice. The threshold for regarding an application as duly made was relatively low. Registration authorities were to be guided by the general principle of being fair to those whose interests might be affected by their decision. It might be that amendments by applicants at their own initiative should be allowed: Oxfordshire County Council v Oxford City Council [2006] 2 EGLR 95 applied.
(2) The first limb of regulation 5(4) was intended to cover situations where, on a preliminary consideration, the application was seriously defective and as such could be summarily rejected. The applicant might be advised to start again. The registration authority had a discretion in that regard, balancing its obligation to accept a valid application against its obligation to reject an application which did not comply with the statutory requirements. A decision to reject was subject to judicial review on ordinary public law principles. The second limb was designed to cover situations where it appeared to a registration authority that, albeit that the application was defective, it could be put right. In that event, the authority had to offer the applicant a reasonable opportunity of taking the remedial action identified. Preliminary consideration did not enter into consideration under the second limb. There was nothing in the language to suggest that the applicant could be afforded only one opportunity to remedy a not duly made application. Regulation 5(4) would have undesirable consequences if it were to be read in that way. Offering an applicant the opportunity to remedy a defect more than once would not prolong the application interminably to the detriment of the landowner since time limits were built into regulation 5 and applicants might be given only relatively short periods under regulation 5(4) within which to remedy the defects: Church Commissioners for England v Hampshire County Council [2014] 2 EGLR 203; [2014] EGILR 69 applied.
(3) Accordingly, there was no objection to the defendants offering the interested party the opportunity to correct his application for a second time. In fact, the application as amended and resubmitted by the interested party was duly made because there had never been any defect about the statement of locality. Any reasonable reader of the application form would have understood that the claimed locality was located within the city of Cambridge and, at the very least, the electoral ward of Newnham. That justification for registration was acceptable. At the merits stage, it might be that the claimed area was not a valid neighbourhood within a locality. But the advantage of not taking a legalistic approach at the application stage was that it reduced the chances of satellite litigation such as the present, and enabled cases to be dealt with on the merits rather than on procedural technicalities. Furthermore, the application was duly made once the interested party had remedied the defects in July 2016. There was no need for him to further amend the application as regards locality.
George Laurence QC and Claire Staddon (instructed by Mills and Reeve, of Cambridge) appeared for the claimant; Paul Wilmshurst (instructed by LGSS Law, of Huntingdon) appeared for the defendants
Eileen O’Grady, barrister
Click here to read a transcript of St John’s College, Cambridge v Cambridgeshire County Council
