Cooper Estates Strategic Land Ltd v Wiltshire Council
| Jurisdiction | England & Wales |
| Judge | David Elvin |
| Judgment Date | 05 July 2018 |
| Neutral Citation | [2018] EWHC 1704 (Admin) |
| Docket Number | CO/5886/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 July 2018 |
The Queen on the application of
and
[2018] EWHC 1704 (Admin)
David Elvin QC
(Sitting as a Deputy High Court Judge)
CO/5886/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Gregory Jones QC and Philip Petchey (instructed by Blake Morgan) appeared on behalf of the Claimant
Stephen Morgan (instructed by Wiltshire Council Legal Services) appeared on behalf of the Defendant
Hearing date: 3 July 2018
Judgment Approved by the court for handing down
(subject to editorial corrections)
David Elvin QC (Sitting as a Deputy Judge of the High Court)
Introduction
This is an application for judicial review, brought with permission granted by Dove J. on 8 February 2018, of the decision made on 4 October 2017 by Wiltshire Council (“the Council”) as the commons registration authority (“CRA”) under the Commons Act 2006 (as amended) (“the 2006 Act”) to register land at Royal Wootton Bassett as a town or village green and its subsequent registration of that land.
The subject land is an irregularly, triangular shaped area of some 380 sqm adjacent to Vowley View and Highfold, Royal Wootton Bassett (“the Land”) and appears to be an amenity space in an establishing area of housing, or at least was so until the fencing and gate, which had been installed by the Claimant in 2006, was locked in 2015.
The Claimant is the owner of the Land which, having unsuccessfully objected to the application, seeks an order quashing the decision to register and the consequential registration.
Facts
The application to register the Land was made pursuant to s. 15(1) and (3) of the 2006 Act by Mr Richard Gosnell, the First Interested Party. It was received by the Council as CRA on 12 April 2016. It was accompanied by 27 witness evidence questionnaires (including plans and photographs) relating to the claimed recreational use of the land and supporting the application. It was stated that the Land had been used by the inhabitants of the locality for the purposes of lawful sports and pastimes for a period of 20 years, as of right, with the use of the land ending in May 2015 when a gate installed by the Claimant was locked. Prior to 2006 the Land had mistakenly been thought to be owned by the local authority and had been regularly maintained by it but the Claimant fenced the land in 2006 and installed a gate which was left unlocked. While it was effective to end local authority mowing, it did not prevent access by local inhabitants. See e.g. the answers in the questionnaires by Mr and Mrs Pope (Bundle pp. 496, 503, 510 and 517) and the Decision Report (below) at paras. 13.32–13.36 (under the heading “Have indulged as of right”).
Before accepting and date stamping the application as valid, the CRA (through Miss Janice Green) investigated first whether the right to apply for registration had not been suspended by a “trigger event” within s. 15C and Schedule 1A of the 2006 Act. If there had been found to be a trigger event, the application could not have been accepted: s. 15C(1) of the 2006 Act. Following Defra Guidance to Commons Registration Authorities in England on Sections 15A to 15C of the Commons Act 2006 (December 2014 at the time the application was made, current version December 2016) the Council wrote to its own planning services (spatial planning and development management) and to the Planning Inspectorate all of whom returned confirmation that there was no trigger event. The CRA appears to have treated those responses as virtually conclusive (to judge by later statements in reports to Committee) and the Application was then accepted with the relevant date of receipt given as 12 April 2016 in accordance with R (Church Commissioners for England) v. Hampshire CC [2014] EWCA Civ 634. However, it is common ground between Mr Jones QC for the Claimant and Mr Morgan for the Defendant that this issue is a matter of law for the Court.
Since the application was not in proper order, Mr Gosnell was then given the opportunity to put it in order in accordance with regulation 5(4) of the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 (“the 2007 Regulations”). Following correspondence on that issue, and the amendment of the application, it was then found by the Defendant to be duly made on 15 September 2016 and given the application number 2016/01. A number of parties, including the Claimant and its solicitors were accordingly notified of the application by letter dated 30 September 2016 which stated:
“Wiltshire Council are in receipt of an application to register land adjacent to Vowley View and Highfold, Royal Wootton Bassett, as a town or village green, as shown on the enclosed plan. It is claimed that the land has qualified for registration as a town or village green by virtue of “The Green” being often used by local residents since 1975 and possibly since 1969, without let or hindrance, as of right, for lawful sports and pastimes, with use ending in May 2015.
As the affected landowner, please find enclosed notice of the application for your attention. Notice will also be placed in the Wilts Gazette and Herald on Thursday 6th October 2016 and posted on site. The application in full will be made available for public inspection at the offices of Royal Wootton Bassett Town Council and Wiltshire Council offices at Ascot Court, White Horse Business Park, Trowbridge, Wiltshire, BA 14 OXA.
If you would like to make any representations or objections regarding the proposals, I would be very grateful if you could forward them to me, in writing, at the above address, not later than 5:00pm on Friday 18th November 2016.”
The press notice was in Form 45 and stated:
“COMMONS ACT 2006COMMONS ACT 2006 — SECTION 15(1)
Notice of an application for the registration of land as a Town or Village Green
To every reputed owner, lessee, tenant or occupier of any part of the land described below, and to all others whom it may concern.
Application has been made to the Wiltshire Council of County Hall, Bythesea Road, Trowbridge, Wiltshire, BA 14 8JN by Mr Richard Gosnell, of Royal Wootton Bassett, Wiltshire, under section 15(1) of the Commons Act 2006 and in accordance with the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007. The application seeks the inclusion in the register of town and village greens of the land described in the Schedule below which is claimed to have qualified for registration as a town or village green. In May 2015 by virtue that “The Green” has been often used by local residents since 1975 and possibly since 1969, without let or hindrance as of right for lawful sports and pastimes, with use ending in May 2015.
The application, which includes a plan of the land proposed for registration may be inspected at the following offices: Wiltshire Council, Rights of Way and Countryside Team, Waste and Environment, Unit 9, Ascot Court, White Horse Business Park, Trowbridge, Wiltshire, BA14 OXA between the hours of 9:00am and 5:00pm on Monday to Friday. Copies of the documents may also be inspected at the following location: Royal Wootton Bassett Town Council, Council Offices, 117 High Street, Royal Wootton Bassett, Wiltshire, SN4 7AU, between the hours of 8:30am and 5:00pm on Monday to Thursday and 8:30am and 4:00pm on Friday.
If the registration authority is satisfied that the land described below qualifies for registration as a town or village green, it will so register the land.
Any person wishing to object to the registration of the land as a town or village green should send a statement of the facts on which the objection is based to Miss J Green, Rights of Way Officer, Waste and Environment, Wiltshire Council, Bythesea Road, Trowbridge, Wiltshire, BA14 8JN on or before Friday 18th November 2016. Any representations that are to be taken into account by the Authority in reaching a decision on the application cannot be treated as confidential and will be copied to the applicant for comment and may be disclosed to other interested parties.
Dated 6th October 2016
Wiltshire Council
Schedule
Description of the land claimed to have qualified for registration as a town or village green.
Land adjacent to Vowley View and Highfold, Royal Wootton Bassett. Ordnance Survey Grid Reference SU 075–821.”
The Claimant's solicitor sent an email to the Council on 18 November 2016 enclosing an opinion from Mr Jones QC which supported their contention that the trigger event under paragraph 4 applied to bar the application. I will not set this out in detail, since it covers the same territory as Mr Jones' submissions to the Court, other than to note that the critical aspect of his opinion comprised the proposition that Policies CP1 and CP2 of the Wiltshire Core Strategy 2015 acted as a “trigger event” for the purposes of s. 15C of the 2006 Act and the Core Strategy “identifies the land for potential development” within paragraph 4 of Schedule 1A. (I set out the relevant parts of the Core Strategy later in this judgment).
The email noted, raising the validity issue and also reserving the Claimant's position with respect to the merits:
“In leading counsel's opinion, the application is not valid and should be rejected without further steps and costs being incurred. This is without prejudice to any further submissions our clients might have on the merits of the application.”
The opinion was sent to Mr Gosnell in accordance with the 2007 Regulations and he pointed out in written comments on 9 December 2016 that the CRA had “made due checks and ascertained that there were not events hindering the Application under...
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