Church Comrs for England v Hampshire County Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Richards,Lord Justice Vos |
| Judgment Date | 14 May 2014 |
| Neutral Citation | [2014] EWCA Civ 634 |
| Docket Number | Case No: C1/2013/2127 |
| Date | 14 May 2014 |
| Court | Court of Appeal (Civil Division) |
[2014] EWCA Civ 634
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Mr Justice Collins
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Richards
and
Lord Justice Vos
Case No: C1/2013/2127
and
Mr Jonathan Karas QC and Mr Benjamin Faulkner (instructed by Farrer & Co LLP) for the Appellant
Mr John Hobson QC and Ms Philippa Jackson (instructed by Head of Legal Services) for the Respondents
The Intervener was not represented and did not appear
Hearing dates: Wednesday 5 February 2014
Issues – effect of correction of application to register a TVG on application date and time that may be given for such correction
Applications ("TGVA") to register land as a town or village green ("TVG") under the Commons Act 2006 ("CA 2006") must comply with certain regulations and be filed within specific time periods. There is a limited possibility of correction. In this case, Mrs Guthrie, the interested party in these proceedings, wished to register certain land at Bushfield Camp in Hampshire as a TVG. If an application is duly made, notice is given to the landowner, in this case the appellants ("the Church Commissioners"), and members of the public. They may object to registration of the TVG. If the application for registration is successful, use of the land is restricted to recreational use as a TVG, and the landowner therefore may not develop it.
Mrs Guthrie filed her application on 30 June 2008 with the registration authority, the respondent ("the Council"), but, as I explain below, it was defective in several respects. In his judgment dated 10 July 2013, now under appeal, Collins J held that a TVGA could as a matter of law be corrected and that if the corrections were made within a reasonable period the corrected TVGA would take effect from the filing date. The correctness of that ruling is the first issue on this appeal ("retrospectivity issue").
Mrs Guthrie finally complied with all the requirements for applications on 20 July 2009. Collins J went on to hold that that was within a reasonable opportunity. The Church Commissioners now appeal from that ruling, and that issue ("reasonable opportunity issue") is the second issue on this appeal.
If the Church Commissioners succeed on either issue, Mrs Guthrie will be too late to file a new application to register the land as a TVGA, and the Church Commissioners will be able to develop it, as they in fact wish to do in part.
In my judgment, on the facts, the judge's ruling on the retrospectivity issue was plainly correct as a matter of statutory interpretation. However, on the reasonable opportunity issue I consider that what is a reasonable opportunity is ultimately a question of law for the court. The requirements for TVGAs represent a balance between the interest of the public and that of the landowner. That balance was struck by the time Mrs Guthrie had been given nine months to correct her application and help to complete it. Moreover she was warned that she had to complete it within a period of time which she exceeded on more than one occasion without explanation. I would therefore allow the appeal. I explain how I have reached these conclusions below.
Making a TVGA – requirement for recreational use and time limits where recreational use has ceased prior to filing
It is a pre-condition of registration as a TVG that the land in question was used by a significant number of inhabitants of the locality or a neighbourhood "as of right" for sports or pastimes (i.e. for recreational use) for at least 20 years: CA 2006, section 15(2)(a), (3)(a) and (4)(a). While that is an important pre-condition, it is not material at this stage in this case because we are dealing with preliminary issues. If the appeal fails, the question whether this important pre-condition was met will have to be addressed, but not till then. For the moment, I assume that Mrs Guthrie will be able to show that it is met.
The primary rule in section 15 is that the recreational use must be continuing at the date of the application: see section 15(2). In some cases, however, of which this is said to be one, that use will have ceased before the TVGA. Section 15(3) and (4) deal differently with cessation before and after the commencement of the CA 2006. Lewison LJ explained in R(Newhaven Port & Properties Ltd) v East Sussex County Council (No. 2) EWCA Civ 673, [2013] 3 WLR 1433 at [62] to [63] that this is because it was easier for a landowner to cause the use to cease before that date than afterwards since before that date he simply had to give notice that he consented to the use and not physically prevent use of the land. Accordingly section 15 provides that an application for registration as a TVG may be made within 5 years of the cessation if cessation occurred before the date of the commencement of section 15 (section 15(4)). It provides a 2-year period (in the case of England) and a 1-year period (in the case of Wales) where the cessation takes place after the commencement of section 15 (section 15(3) and (3A).
Making a TVGA — form and content of application
There are a number of detailed requirements that must first be fulfilled when making an application for land to be registered as a TVG so that the registration authority can check that, on the face of it at least, the relevant requirements for registration are fulfilled. These requirements are found in regulations made under section 24 of the CA 2006. The relevant regulations applicable to this case are The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 (2007 SI no 457) ("the Regulations"), which have since been amended.
Under Regulation 3, the applicant must use form 44, set out in the schedule to the Regulations. Note 5 to form 44 makes it clear that the scale of the map must be at least 1:2,500. In addition, (among other requirements) the applicant must provide a statutory declaration in support of the application (Regulation 3(2)(d)). The Regulations also require the application clearly to identify the relevant land and to show the locality or neighbourhood.
Form 44 refers to guidance notes, which are published separately. They are thus non-statutory and do not form part of the Regulations. They state in relation to a TVGA that the stamp which the registration authority gives to the application as the date of receipt "may be important, because it is the date against which the time limits on applications in section 15(3) and 15(4) apply".
The annex to this judgment sets out the relevant provisions of the CA 2006 and the Regulations.
Mrs Guthrie's TVGA – history of filing and correction
As explained, Mrs Guthrie's application was originally filed on 30 June 2008. This was defective in three respects which the Council pointed out to her in their letter of 1 July 2008, returning her application:
i) Mrs Guthrie had not given a date for the cessation of recreational use as required by form 44 but had merely said that it was "a period of months during the summer of 2003";
ii) The application did not identify the locality or neighbourhood to which the claimed TVG related as required by form 44;
iii) The statutory declaration in support of the application was defective in that the sections which are not part of the declaration were not struck out.
The Council pointed out that other evidence on its files relating to the same land, namely a statement by the applicant in support of an application to register rights of way, suggested that access was prevented in spring 2003. Reference was also made to the application to record public rights of way over the land made on 17 June 2003 accompanied by a poster referring to the "recent enclosure and fencing of the land".
The Council invited Mrs Guthrie's comments on the possibility that her application was out of time and gave her 6 weeks to respond. The Council returned the application to Mrs Guthrie without retaining a copy.
Items (i) and (ii) were serious defects as they made it impossible to tell if the application was properly made. Item (iii) is of little importance because, while the Council did not retain a copy of the application, it is sufficiently clear that item (iii) was trivial and could properly be treated as not reaching the threshold necessary for sanction by the law on the basis of the maxim de minimis non curat lex.
On 11 August 2008, Mrs Guthrie resubmitted her application. As regards the date of cessation, she explained why the application had not been submitted with the right of way application and gave the following explanation about the cessation date:
"Regarding the actual date on which free access to the Down was first restricted, we have searched through our records but failed to establish a date more accurate than "during the summer of 2003". We have one diary entry stating that the land was cleared in mid May and the photograph of fencing dated July 16th. Certainly our application to record public right of way over the land was made on June 17th 2003 and to that extent our recent submission falls just outside the 5 year time limit for applications under section 15(4) of the 2006 Act. My own statement about access being prohibited in Spring 2003 is not helpful and I would only say that was related to concerns about the nesting season."
The Council took the...
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