R (NHS Property Services Ltd) v Surrey County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gilbart |
| Judgment Date | 13 July 2016 |
| Neutral Citation | [2016] EWHC 1715 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 July 2016 |
| Docket Number | Case No: CO/6227/2015 |
[2016] EWHC 1715 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Gilbart
Case No: CO/6227/2015
The Queen on the application of
Jonathan Clay and Matthew Lewin (instructed by Capsticks LLP, Solicitors of Wimbledon) for the Claimant
Douglas Edwards QC and Katherine Barnes (instructed by Joanna Mortimer, Principal Solicitor, Surrey County Council) for the Defendant
Dr Ashley Bowes (instructed via Direct Access) for the Interested Party
Hearing dates: 14 th–16 th June 2016
ACRONYMS AND ABBREVIATIONS USED IN THE JUDGEMENT
| CA 2006 | |
| C(RTV)Regs 2007 | Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 |
| CR(E)Regs 2014 | |
| Convention for the Protection of Human Rights and Fundamental Freedoms (as set out in Human Rights Act 1998 Schedule 1) | |
| RA | Registration Authority |
| NHSPS | NHS Property Services Limited |
| SCC | Surrey County Council |
| PCT | Primary Care Trust |
| IR | Inspector's Report and Recommendations |
Introduction
This claim relates to the registration on 6 th October 2015 by SCC, as Registration Authority, of land known as Leach Grove Wood, Leatherhead, Surrey as a town or village green pursuant to s 15 of the CA 2006. It did so, having concluded that the criteria in s 15 of CA 2006 were met. Those criteria are that
"a significant number of the inhabitants of any locality, or neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years."
That land is owned by the Claimant NHSPS. The land was registered pursuant to an application made by Mrs Phillippa Cargill. She has now emigrated from this country. The Interested Party was a supporter of her application and has been made a Party without objection from the Claimant, so that the case for those who supported the application could be made to the Court.
NHSPS objected to the application. A non-statutory inquiry was held by an Inspector, Mr William Webster, Barrister, who then reported to SCC that he recommended that the application be refused. He held that while there had been the indulgence as of right in lawful sports and pastimes for at least 20 years, the Applicant had not identified a "locality," or alternatively a "neighbourhood within a locality." He had rejected the Claimant NHSPS' case that there was a statutory incompatibility between the statutory purposes for which the land was held and registration pursuant to section 15 of the CA 2006. It is to be noted that while that is a matter of fundamental importance (see R (Newhaven Port and Properties Ltd) v East Sussex CC [2015] UKSC 7 (" Newhaven") at [91]–[93] per Lord Neuberger and Lord Hodge) it is not set out in s 15 CA 2006 as a criterion.
The relevant Committee of SCC concluded that the criteria were met. The case for SCC was that it did so on the basis that the "neighbourhood within a locality" test was passed. The Committee's reasons for granting the application did not address the argument about statutory incompatibility at all.
The issues raised in this case are:
(1) was SCC under a duty to give reasons for its decision?
(2) if so, what standard of reasoning was required?
(3) did SCC give adequate reasons for finding that the criteria were met?
(4) was the finding that there was a "neighbourhood" one which SCC could reasonably make?
(5) given the absence of any consideration or reasoning relating to the question of statutory incompatibility, has SCC shown that there was no basis for concluding that there was statutory incompatibility?
(6) was the conduct by SCC of the meeting which considered the issue fair to the Claimant NHSPS?
I shall deal with matters as follows
(a) An overview of the system of registration;
(b) The land in question and its ownership;
(c) The "locality" and "neighbourhood within a locality" arguments;
(d) The respective cases at inquiry;
(e) The inquiry and the Inspector's Report and Recommendations (IR);
(f) SCC's consideration of the Inspector's Report and the decision to register the land;
(g) The case for NHSPS;
(h) The cases for SCC and the Interested Party;
(i) Discussion
(j) Conclusions
(k) Costs
(l) Permission to appeal
(a) An overview of the system of registration
Many cases have grappled in the last 20 years with the meaning of the tests in what is now s 15 of CA 2006. Happily, this judgement does not need to explore them, as there was very considerable agreement on the tests and approach to registration. The issues in this litigation related to other issues relating to reasoning, and to the application of the test of statutory incompatibility in Newhaven.
This was an application under s 15(3) CA 2006 made to the Registration Authority (SCC). The relevant parts of s 15 read:
"15 Registration of greens
Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), ( 3) or (4) applies.
(2) ……………………………………………………………………
(3) This subsection applies where—
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the time of the application but after the commencement of this section; and
(c) the application is made within the relevant period."
It follows that, subject to the one reservation noted below, if a significant number of the inhabitants of either a "locality" or a "neighbourhood within a locality" are shown to have used the land for informal recreation as of right (not by right – see R (Barkas) v North Yorkshire CC [2014] UKSC 31 [2015] 1 AC 195 [2014] 3 All ER 178) for a period of at least 20 years before the end date relevant to the application (here the 20 years ending on 9th January 2013), and the application was made within the relevant period, then the application must be granted.
There is one important rider to be made as a result of the decision in Newhaven, which is that s 15 CA 2006 does not:
"…. apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green"
(per Lord Neuberger and Lord Hodge in Newhaven at [93]).
The process is regulated in some areas by the C(RTV)Regs 2007. They apply to Surrey. By Regulation 5, the application must be sent by the RA to any landowner (and others with interests) and publicised otherwise, and a date set for the receipt of objections. By Regulation 6, the RA must decide to proceed to consider the application, and in doing so (a) must consider all objections made by the date when it elects to proceed further, and (b) may consider those received afterwards up to the time it finally disposes of the application (Regulation 6).
Although there is no statutory provision for the holding of inquiries, it is now commonplace for an RA to arrange for an Inspector to hold one and report to it. That happened in this case. However, the decision on registration is made by the RA. When it has disposed of the application, it must give notice of that fact to, inter alios, the applicant, and every person who objected whose address is known (Regulation 9). That notice must include, where it has granted the application, details of the registration, and where it has rejected the application, the reasons for the rejection. That includes anyone who did object within time, or whose objection was considered.
That can be contrasted with the CR(E)Regs 2014 which apply in some other areas, apparently as part of a pilot scheme, where the duty to give reasons applies whether the application has been granted or rejected (see Regulation 36(3)).
I shall in due course consider whether there is a duty to give reasons to an objector when an application has succeeded, and if so the extent of the reasons which must be given.
(b) The land in question and its ownership
The land in question is, according to the Inspector, a parcel of woodland containing a range of deciduous and evergreen trees. He described it as unkempt, run down, and as having had little management over the years. Some trees had fallen, and there are also some self-seeded trees on the land. The Claimant had also felled some trees recently as they presented a risk to health and safety. The tracks within the site are free of obstruction and easy to walk on, which showed that there had been heavy use. Some of the land is covered by impenetrable undergrowth. The land is criss-crossed by tracks. The Inspector's assessment was that 60–70% of the land was reasonably accessible for informal recreation. He found that the land was used both for recreation and as a place of transit between local roads, allotments, the former St Marys CE Primary School, and other local places. He described it as an attractive location for walking, with or without dogs, and for children's play. The unused areas were integral to the enjoyment of the area and formed part of the function and attractiveness of the area.
On 9th January 2013 the Claimant erected a notice on the land stating that it was private land, and that the public had permission to enter it on foot, but that it could be withdrawn at any time.
The IR sets out the history of the land. It also identified some, but by no means all, of the relevant...
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