R (Cheltenham Builders Ltd) v South Gloucestershire District Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 19 October 2004 |
| Neutral Citation | [2003] EWHC 2803 (Admin),[2004] EWHC 2392 (Admin) |
| Docket Number | CO/5533/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 October 2004 |
[2003] EWHC 2803 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Sullivan
CO/5533/2002
MR G LAURENCE QC AND MISS R CRAIL (instructed by Burgess Salmon) appeared on behalf of the CLAIMANT
MR P PETCHEY AND MR A BOOTH (instructed by the solicitor to South Gloucestershire District Council) appeared on behalf of the DEFENDANT
Introduction
There are two sets of proceedings before the court. The first is an application for judicial review in which the claimant seeks a quashing order in respect of a decision of the defendant's Public Rights of Way and Commons Registration Committee on 8 September 2002 to amend the Register of Town and Village Greens maintained by it under the Commons Registration Act 1965 ("the Act") by adding land at Magpie Bottom, Tabernacle Road, Hanham, Bristol ("the site") as a village green; a declaration that the site is not a village green; and a mandatory order requiring the defendant to remove it from the register.
The second is a claim under CPR Part 8 for an order under section 14 of the Act that the register be amended by the removal of the site and for a declaration that the site is not a village green. Claims under section 14 are assigned to the Chancery Division.
On 1 August 2003, Master Bowles ordered, by consent, that there should be a trial of preliminary issues in the section 14 claim, and that the trial of those issues should be conducted together with the claim for judicial review. The agreed preliminary issues in the section 14 claim correspond with the issues now raised in the application for judicial review.
Factual Background and Statutory Framework
The claimant is a property development company. It acquired the land comprising the majority of the site from the defendant by transfer dated 23 February 2001 pursuant to an option agreement entered into in November 1996. The claimant exercised its option to purchase the land in November 1997. It was registered as the proprietor of the land with effect from 16 March 2001. On 6 March 2000 the claimant applied to the defendant for planning permission to erect eight houses and an access road on the land. The defendant failed to determine the application within the prescribed period, so the claimant appealed to the Secretary of State for the Environment. The Secretary of State's inspector, who described the land as "part of a former nursery … an unkempt and overgrown area of mature shrubs, self-seeded trees, brambles and tall grass, which is crossed by a network of informal paths", dismissed the appeal in a decision letter dated 6 December 2000.
Local residents, including Mr Bye of the Magpie Bottom Action Group, appeared at the hearing before the inspector in October 2000 and opposed the proposed development. On 5 July 2000, Mr Bye, together with three other local residents who appeared at the hearing before the inspector, had applied for registration of the land, together with some adjoining land, as a town or village green.
The Act provided for the registration of all existing town or village greens in England and Wales. Land capable of registration as such which was not registered by the end of a prescribed period (31 July 1970) was not deemed to be a green (Section 1(2)). After 31 July 1970 registration cannot be effected under section 1, but can be effected by the making of an amendment to the register under section 13 "where … any land becomes … a town or village green". The procedure is prescribed by the Commons Registration (New Land) Regulations 1969 ("the Regulations"). Application must be made to the registration authority (in this case the defendant) on the prescribed form. The registration authority must notify likely objectors, including owners, tenants and occupiers of the land in question, and publish and display notices of the application in the area, inviting objections by a specified date. Having sent copies of any objections to the applicant and given him an opportunity to respond, the registration authority then decides whether to accept the application and make the necessary registration, or to reject it.
As enacted, section 22(1) of the Act contained a three-part definition of town or village green as follows. Land:
"[a] Which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or [b] on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or [c] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than 20 years."
I have added letters [a]-[c] for convenience since the three classes are usually referred to as class [a], [b] or [c] village greens. The definition of a class (c) green was altered with effect from 30 January 2001 by sections 98 and 103(2) of the Countryside and Rights of Way Act 2000 ("the 2000 Act"). Class (c) greens are now defined as land:
"Which falls within sub-section (1A) of this section.
"(1A) Land falls within this sub-section if it is land on which for not less than 20 years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality have indulged in lawful sports and pastimes as of right, and either —
"(a) continue to do so, or
"(b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions."
No period has been prescribed for the purposes of paragraph (b) in sub-section (1A).
The application dated 5 July 2000 contended that the site had become a class (c) green in "1995 or before". The claimant's solicitors objected to the application in a letter dated 15 December 2000. The letter said, inter alia:
"Our clients object to this application on the basis that the applicant has not established, on a balance of probabilities, that the claimed land has been used by local inhabitants for lawful sports and pastimes, as of right, for a continuous period of not less than 20 years for the following reasons:
"1. The applicant has not established that there is a relevant 'locality' whose inhabitants have indulged in relevant activities on the application site. No specific neighbourhood, community or housing estate has been defined …
"3. The applicant has claimed that various activities have been undertaken on the application site including walking, cycling, playing, exercising, socialising, picking blackberries, picnicking and drawing and painting. Given that the application site had been for some time unkempt and densely overgrown comprising an area of mature shrubs, self-seeded trees, brambles and tall grass, it is unlikely that all of the activities claimed could have been physically undertaken on the application site on a regular basis …
"7. The applicant has failed to establish that the claimed activities have been indulged in as of right. The majority of the evidence questionnaires make it clear that the local residents are aware that the local Council own the land. Any use of the application site by the public was with the implied permission of South Gloucestershire Council …
"In summary, the evidence presented in support of the application for registration as a village green does not define the relevant locality. Many of the questionnaires do not distinguish between recreational activities and sports undertaken on the land known as Magpie Bottom, which lies outside the application site and is designated a public open space maintained by the Council. Many of the evidence questionnaires referred to the application site as land that is crossed on foot in order to gain access to other recreation areas. The majority of the evidence questionnaires give an indication that local residents all knew that the land was in the ownership of the Council and therefore any such use of the land was with the Council's implied permission."
Correspondence between the claimant's solicitors and the defendant continued until April 2001, by which time the definition of class (c) green had been amended by the 2000 Act (see above) and the majority of the land within the site had been transferred by the defendant to the claimant. In a letter dated 18 April 2001, the claimant's solicitors reiterated their earlier objections, referred to correspondence from local residents seeking registration of the site and said, inter alia:
"The above correspondence and other material available to the Council regarding our client's planning application demonstrates that the Village Green application has been lodged by a small group of residents who are using the process to maintain their objection to planning permission being granted over the application site. Third party objections to the development of this brown field site were aired fairly, although unsuccessfully, in the planning enquiry process and an application under the Commons Registrations Act 1965 is not an appropriate mechanism to seek to further such objections once they have been dismissed by the planning inspector."
The applicants for registration were supplied with copies of this correspondence by the defendant. On 8 June 2001 the defendant wrote to the claimant advising it that the applicants had withdrawn their application for registration. On 5 October 2001, Mr Bye and the other three previous applicants made a further application for registration. This time the application site was confined almost entirely to the claimant's land —a small piece of adjoining...
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