R (Oxfordshire & Buckinghamshire Mental NHS Foundation Trust) v Oxfordshire County Council

JurisdictionEngland & Wales
Judgment Date23 March 2010
Neutral Citation[2010] EWHC 530 (Admin)
Docket NumberClaim No: CO/6298/2009
CourtQueen's Bench Division (Administrative Court)
Date23 March 2010

[2010] EWHC 530 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before: His Honour Judge Waksman Qc

(sitting as a Judge of the High Court)

Claim No: CO/6298/2009

R (oxfordshire & Buckinghamshire
and
Mental Health Nhs Foundation Trust
and
Oxford Radcliffe Hospitals Nhs Trust)
Claimants
and
Oxfordshire County Council
Defendant
and
(1) Paul Deluce
Interested Parties
(2) Christopher Whitmey
(3) Rosie Booth

Charles George QC and Philip Petchey (instructed by Clarkslegal LLP Solicitors) for the Claimants|Charles Mynors (instructed by the County Solicitor, Oxfordshire County Council) for the Defendant|Ross Crail (instructed by Public Law Solicitors) for the First Interested Party|The Second and Third Interested Parties appeared in person

Hearing dates: 25 and 26 February and 17 March 2010

INTRODUCTION

1

This is an application for judicial review of a decision of the Defendant, Oxfordshire County Council (-?the Council-?) made on 6 April 2009, by which it resolved to register an area of land known as Warneford Meadow (-?the Meadow-?) as a new town or village green (-?TVG-?) under the Commons Registration Act 1965 (-?the 1965 Act-?) as amended. Registration itself has not yet been effected due to these proceedings.

2

The resolution was passed following the submission of a report by the County Solicitor and Head of Legal Services in January 2009, recommending registration. That recommendation was itself the result of advice contained in the report of Vivian Chapman QC dated 18 October 2008 (-?the Report-?), supplemented by his Further Report dated 28 January 2009.

3

The application to register the Meadow as a new TVG was made by Mr Paul Deluce, the First Interested Party in this case, on 19 December 2006. There is no specific procedure under the 1965 Act to hold a public inquiry but the Council decided to hold one under its general powers pursuant to s111 of the Local Government Act 1972. To that end it appointed Mr Chapman as the Inspector. He has very extensive knowledge and experience of this area of the law and has often acted as Inspector in relation to TVG applications.

4

The objectors to the application were the Secretary of State for Health (-?SOSH-?), the owner of the Meadow, the South Central Strategic Health Authority and the Second and Third Interested Parties in this case, Mr Whitmey and Mrs Booth. In this judgment I shall use the expression -?the Authority-? to refer to the Claimants, the predecessor authority ie the Oxford Regional Health Authority (responsible for the 1989 signs referred to below) or the South Central Strategic Health Authority, as the context requires. Registration of the Meadow as a TVG has, among other things, the effect of preventing development on the land, or its sale for development which is what the SOSH and the Authority wish to do, in order to generate funds for the provision of new health facilities.

5

The Inquiry took place over 15 days in October 2007, January and May 2008. Following the hearing of much evidence and the receipt of detailed oral and written submissions, the Inspector produced his Report running to some 79 pages. He then received further submissions which commented on the Report and this led to the Further Report in which he confirmed his original recommendation. Accordingly although the decision in question is that of the Council, the focus of this case is upon the Report and Further Report. The Authority contends that they contain errors of law such that his recommendation, and in turn the decision of the Council, should be quashed. Mr Whitmey and Mrs Booth support that claim. It is resisted by the Council and also by Mr Deluce. I heard from Mr George QC for the Authority and Mr Whitmey in person for himself and Mrs Booth. I heard from Mr Mynors for the Council and Ms Crail for Mr Deluce. I am grateful to them all for their assistance and submissions.

STATUTORY BACKGROUND

6

At this stage it is necessary only to set out the definition of the relevant class of TVG with which the Inspector was concerned. It is to be found in s22 (1A) of the 1965 Act as amended by s98 of the Countryside and Rights of Way Act 2000 (-?the 2000 Act-?) which states that land falls within this subsection if:

•it is land on which for not less than twenty 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 …(a) continue to do so…

OVERVIEW OF THE MEADOW AND ITS ENVIRONS

7

The location and layout of the Meadow is shown most clearly on the large map at p276HH of the hearing bundle (-?the Map-?). It is about 20 acres in size. Its northern boundary is constituted by Roosevelt Drive beyond which is a housing estate called Little Oxford built in 1991. To the north-west is the Warneford Hospital. To its east lies Boundary Brook beyond which is the large complex of the Churchill Hospital. To the west there is an area of long-established housing stretching down from Hill Top Road to the Cowley Road.

8

At the Inquiry Mr Deluce contended that in this case the user was by a significant number of the inhabitants of a neighbourhood referred to as the Divinity Road Neighbourhood (-?DRN-?). This was said to consist of an area of housing as follows: the northern boundary was the rear of the houses on the north side of Divinity Road, the eastern boundary was the rear of the houses on the east side of Hill Top Road, the southern boundary was Bartlemas Close and the Southfield Park Flats and the western boundary was the Cowley Road. It included the hamlet of Bartlemas, Warneford Road, Minster Road and the Southfield Park Flats. The total number of dwellings in this neighbourhood was 890. The definition of DRN was later amended to include the Meadow itself.

THE INSPECTOR-?S CONCLUSIONS

9

Broken down into its constituent parts, the key express requirements of s22 (1A) in this context may be described thus: there must be

(1) Land on which

(2) for not less than 20 years

(3) a significant number of the inhabitants of any …. neighbourhood within a locality

(4) have indulged in lawful sports and pastimes,

(5) as of right, and …

(6) continue to do so.

10

The Inspector found that Mr Deluce had established each of these elements. However, it is important at this stage to note that the Inspector did not find the relevant neighbourhood to be DRN. Instead, he found it to be a much smaller area within DRN consisting of the houses on Hill Top Road. I shall refer to this neighbourhood as -?HTRN-?. See paragraphs 375 and 380 of the Report. It is not suggested that it was not open to the Inspector to find a different qualifying neighbourhood. Hence the Authority does not challenge that finding. Equally, there is no challenge by Mr Deluce to this finding and given that his application in fact succeeded, it is perhaps difficult to see how he could.

11

It should also be noted that it was and is common ground that of the total estimated number of witnesses who submitted evidence of use of the Meadow, about a third came from HTRN, another third from the residential area to the west of the Meadow excluding HTRN (ie more or less, the balance of DRN) and the final third from the area to the north of the Meadow.

THE ISSUES

12

There is no challenge to the findings that the Meadow constituted land on which the inhabitants of HTRN (being the qualifying neighbourhood) had indulged in lawful sports or pastimes for 20 years and continued to do so. It is common ground that the relevant 20 year period ended on the date of the application ie 19 December 2006, so that it started on 19 December 1986.

13

However, it is (and was before the Inspector) contended by the Authority and Mr Whitmey that such 20 year usage was not enjoyed -?as of right-?. This is because of the erection of certain signs on the Meadow by the Authority between January and March 1989 which read “No Public Right of Way”. It was said that these notices rendered the use of the Meadow for lawful sports or pastimes contentious so that an uninterrupted 20 year period of such use could not be shown as at the date of the application. On the application before me it is said that in rejecting that argument and in finding that these notices did not make the user contentious the Inspector made two errors of law:

(1) First, in deciding what the nature and effect of the notices was, he wrongly took into account the subjective intention of the Authority in relation to the notices, and

(2) Second, he also took into account on this question certain documents which post-dated the period when the notices were there namely January -? March 1989.

14

These alleged errors form ground 1 of the application for judicial review to which I shall refer as -?the Notices Issue-?.

15

In addition it is contended before me (and was contended in the Authority-?s Further Representations dated 10 December 2008) that the Inspector erred in law in finding that there was sufficient usage of the Meadow by a significant number of the inhabitants of HTRN. This argument is founded upon the contention that although s22 (1A) of the 1965 Act does not expressly say so, it was an implied requirement of the section that not only must the use of the Meadow have been by a significant number of the inhabitants of HTRN, but also that the Meadow was used predominantly by such inhabitants (-?the Predominance Test-?). If the Predominance Test were to apply to this case, it could not be satisfied because on the evidence only about one-third of the users came from HTRN, the only qualifying neighbourhood found by the Inspector. It is implicit in the...

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