Richard Naylor v Essex County Council Silverbrook Estates Ltd and Others (Interested Parties)

JurisdictionEngland & Wales
JudgeHis Honour Judge Anthony Thornton
Judgment Date07 March 2014
Neutral Citation[2014] EWHC 90 (Admin)
Date07 March 2014
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/6606/2013

[2014] EWHC 90 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

His Honour Judge Anthony Thornton QC

Sitting as a deputy judge of the High Court

Case No: CO/6606/2013

Between:
Richard Naylor
Claimant
and
Essex County Council
Defendant

and

(1) Silverbrook Estates Limited
(2) Ms Diana Humphreys
(3) Tendring District Council
Interested Parties

The claimant in person

Mr Alan Evans (Instructed by Essex Legal Services, Essex County Council) appeared for the defendant

The first interested party has not filed an acknowledgement of service but informed the court that it wishes to file detailed grounds for contesting the claim if permission is granted

The second interested party appeared in person

The third interested party was first joined by order of the court following the handing down of this judgment

His Honour Judge Anthony Thornton QC:

Introduction

1

This renewed application for permission to apply for judicial review is made by Mr Richard Naylor ("Mr Naylor") who seeks to challenge the decision of the defendant Commons Registration Authority, Essex County Council ("ECC"), dated 22 February 2013 to refuse to register an area of land described in the application to register it as 'Mill Lane Green and adjoining sea wall', Mill Lane, Walton-on-the-Naze, Essex as a town or village green pursuant to section 15 of the Commons Act 2006 ("CA"). Mr Naylor is acting in person and he initially presented his renewed application orally at a hearing on 16 October 2013. He is a local resident living in Saville Street close to Mill Lane Green ("MLG"). The first interested party, Silverbrook Estates Ltd, ("Silverbrook") acquired the freehold of MLG in May 2009 and is its current registered proprietor. The second interested party, ("Ms Humphreys"), was the original applicant for registration. The application site is located within the boundaries of Tendring District Council ("TDC") and its predecessor Walton-on-the-Naze Urban District Council ("WNUDC"). TDC was not joined by Mr Naylor as an interested party but it is sufficiently interested in the subject-matter of the judicial review that it should be joined as a third interested party to his claim.

2

The application for permission to apply for judicial review was refused on the papers by Ms Elizabeth Cooke sitting as a deputy High Court judge in a decision dated 28 June 2013. Mr Naylor's renewed application for permission was first argued in court on 16 October 2013 when only he appeared. On that occasion, three procedural issues arose:

(1) Whether Mr Naylor's renewed application for permission had been withdrawn, if so whether it could be permitted to proceed and, if so, whether the renewed permission hearing should be adjourned to allow ECC to be represented at the hearing since it had previously informed the court that it wished to be represented at the hearing in order to oppose the application.

(2) Whether Mr Naylor had sufficient standing to bring the judicial review claim.

(3) Whether the application should be dismissed because the original claim was filed out of time or whether, instead, Mr Naylor should be granted an appropriate extension of time within which to file the claim.

3

I heard Mr Naylor's submissions in relation to all three of these issues and his renewed application for permission. I reserved judgment and informed Mr Naylor that if he lost on any of the issues, I would dismiss his renewed application but that if I was minded to grant him permission, I would set out my provisional reasons for reaching that provisional conclusion which would be served on all parties. If any party wished to contest the provisional grant of permission, I would order the renewed permission application to be re-listed to be re-argued in court at a contested permission application. I sent out provisional reasons to all parties setting out my reasoning that explained why I was minded to grant Mr Naylor permission. ECC served notice of its wish to contest the renewed application accompanied by a detailed skeleton submission prepared by Mr Evans of counsel that addressed my provisional reasons. The renewed application was in consequence re-listed and re-argued in open court on 5 February 2014. On that occasion, Mr Naylor again appeared in person, Mr Evans and his instructing solicitor from ECC appeared for ECC and Mrs Humphreys appeared in person to support Mr Naylor.

4

The first procedural issue relating to the possible withdrawal of the claim is no longer live and I will not deal with it. This judgment, unusually full as it is for a permission decision, sets out my reasons why Mr Naylor has sufficient standing to bring this judicial review claim, why his time for filing the claim should be extended and why permission to apply for judicial review should be granted on four discrete grounds. It also addresses four separate procedural issues concerned with the substantive hearing, being Mr Naylor's application for a restrictive costs order, the joinder of TDC as a third interested party, disclosure from TDC and Silverbrook and a timetable for the substantive hearing.

5

In view of the detailed and helpful submissions prepared by Mr Evans and served by ECC and those served in reply by Mr Naylor and the submissions from both at the oral hearing that followed, I have rewritten my provisional judgment. In this rewritten judgment, I identify the four grounds for which permission is granted and a fifth ground for which permission is refused and provide relatively brief reasons for each of these decisions and for the consequent procedural orders.

Essential factual background

6

Walton Mere was historically a tidal inlet which formed part of Hamford Water and is located within Walton-on-the-Naze, Essex. A tidal mill was built on Walton Mere in the Middle Ages. It was separated from the sea by a bund which formed a reservoir for the mill. The mill was demolished many years ago but the bund and sluice gates were retained. MLG forms a wedge between the southern end of Walton Mere and the adjacent Mill Lane and from the time that the reservoir was constructed was an area of salt marsh. It is open to the carriageway of Mill Lane on its west side with a small drop down to the level of Mill Lane.

7

In the 1930s, Walton Mere was turned into a boating lake and the freehold of Walton Mere including MLG and the boating lake business were acquired by Mr Ted Carter in about 1945. In 1953, Hamford Water flooded during the East Coast disaster and in 1954 as part of the flood defence system erected in the aftermath of that disaster, a sea wall was built seaward of the bund so as to enclose Walton Mere on its landward side. This flood defence work left MLG as a grass-covered triangle of dry land on the landward side of the sea wall. The oldest inhabitant who gave evidence to the inquiry and who had been an inhabitant of the neighbourhood for over seventy years remembered that the boating lake had been fenced round and the area of the site was an open space of grass. She and other long-standing inhabitants of the neighbourhood could remember MLG being used by dog walkers and as a recreation area. The inspector did not make a finding as to when this custom started since it was not necessary for him to do so but the evidence he recorded from these inhabitants suggested that it probably dated back to sometime soon after the construction of the sea wall and the consequent drying out of the salt marsh that the site had been since the Middle Ages.

8

It seems that by 1974, WNUDC used to cut the grass on and pick litter from MLG on a regular basis but there was no evidence presented to the inquiry as the circumstances under which this arrangement started or was continued. Mr Carter operated the boat hire business on Walton Mere until he abandoned it as being uneconomic in about 1976. Mr Carter continued to own both Walton Mere and MLG until his death in March 2004 but the evidence suggests that he was somewhat reclusive and many of those using MLG wrongly thought that MLG was owned by WNUDC.

9

WNUDC ceased to exist in 1989 and its area was subsumed into TDC. The evidence that Silverbrook obtained from TDC was that TDC had continued regularly to cut the grass, pick litter and erect and empty the dog-litterbins on MLG since 1989 as part of the Frinton and Walton Grounds Maintenance Contract that it had let out to a private contractor. For a period of about 3 months in the summer of 1993, MLG was taken over by Costain Building and Civil Engineering Ltd ("Costain") as part of extensive sea defence works involving the replacement and heightening of the sea wall enclosing Walton Mere that Costain carried out under contract for the National Rivers Authority ("NRA"). TDC arranged for the maintenance contractor to install a dog-waste bin on the land in 1998. It unsuccessfully attempted to register possessory title to the site in 2002 on the grounds of its suggested adverse possession but the application was refused by the Land Registry because it decided that the grass cutting and the servicing of the dog-waste bin that TDC had arranged to be carried out were insufficient to establish the necessary degree of occupancy required to establish adverse possession of the site.

10

Mr Carter died in March 2004 and his executors owned both Walton Mere and MLG until they sold both to Silverbrook in May 2009. In April 2011, Ms Humphreys lodged her registration application with ECC, in September 2011, Silverbrook lodged a planning application with TDC to develop Walton Mere and MLG and in October 2011 it informed TDC that TDC had...

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1 cases
  • Richard Naylor v Essex County Council Silverbrook Estates Ltd and Others (Interested Parties)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 28 July 2014
    ...Court Judge, in a reserved judgment handed down in this Court on March 7 th 2014: see R (Naylor) v Essex County Council and others [2014] EWHC 90 (Admin). 3 The Claimant seeks to impugn the decision not to register the relevant land on the basis (i) that the Committee erred in concluding, o......

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