The Church Commissioners for England v Hampshire County Council Barbara Guthrie (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Collins
Judgment Date10 July 2013
Neutral Citation[2013] EWHC 1933 (Admin)
Docket NumberCase No: CO/8047/2012
CourtQueen's Bench Division (Administrative Court)
Date10 July 2013

[2013] EWHC 1933 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Collins

Case No: CO/8047/2012

Between
The Church Commissioners for England
Claimant
and
Hampshire County Council
Defendant

and

Barbara Guthrie
Interested Party

Mr Jonathan Karas Q.C. & Mr Benjamin Faulkner (instructed by Farrer & Co) for the Claimant

Mr John Hobson Q.C. & Ms Philippa Jackson (instructed by Solicitor to the County Council) for the Defendant

Hearing dates: 26 June 2013

Judgment Approved by the court for handing down (subject to editioral corrections)

Mr Justice Collins
1

The claimants own land known as Bushfield Camp in Hampshire. Part of the land comprises what is now and has for some time been a disused military camp. The interested party (who has not put any arguments before me, being content to rely on those advanced by the defendant) has asserted that for a period of at least 20 years a significant number of the inhabitants of a locality or a neighbourhood within a locality have indulged as of right in lawful sport and pastimes on the land. Thus she has made an application to the defendant that the land be registered as a town or village green. The claimants wish to develop the land but are prepared to leave part of it as an open space. This is not acceptable to the interested party and those whom she represents.

2

The issue before me is whether the interested party's application was made in time. It is her case that there was the necessary user as of right for 20 years and that was brought to an end when the claimants erected a fence sometime during the week ending 13 July 2003. The significance of that is that Section 15(4) of the Commons Act 2006 which is applicable requires any such application to be made within 5 years of the date on which the user as of right was brought to an end. The application was made on 30 June 2008 but was not in proper form and so was not, as will become clear, duly made. The defendant allowed time for the application to be put in proper form. That was not achieved until 20 July 2009. The question is whether, as the claimants contend, the 5 year limitation means that it was by then out of time and so invalid or whether the true construction of the relevant statutory and regulatory provisions means that the application once amended is to be regarded as having been made within time.

3

The history of the law relating to town or village greens (TVGs) is set out in Oxfordshire County Council v Oxford City Council [2006] 2 AC 674. It makes sorry reading. It was far too complicated and there were a large number of problems relating both to the definition of TVG and what had to be established by an applicant and when a landowner could defeat such user. The Commons Act 2006 is Parliament's third attempt to devise an acceptable and workable scheme for the registration of TVGs. Section 15 of the 2006 Act lays down periods within which applications must be made and what action by landowners can defeat any such application. It, together with Regulations made to specify how applications must be made, is the crucial statutory provision.

4

Section 15 reads as follows, so far as material:-

"15 Registration of greens

(1) 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) This subsection applies where-

(a) a significant number of inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and

(b) they continue to do so at the time of the application.

(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 period of two years beginning with the cessation referred to in paragraph (b).

(4) This subsection applies (subject to subsection 5)) 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 commencement of this section; and

(c) the application is made within the period of 5 years beginning with the cessation referred to in paragraph (b).

(5) Subsection (4) does not apply in relation to any land where-

(a) planning permission was granted before 23 June 2006 in respect of the land;

(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and

(c) the land-

(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or

(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.

(6) In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and (4)(a), there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.

(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied-

(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and

(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land "as of right".

(8) the owner of any land may apply to the commons registration authority to register the land as a town or village green."

As will become apparent when I refer to the relevant ministerial statements, Section 15 was parliament's means of balancing the rights of landowners and local residents who had been exercising the rights necessary to establish the existence of a TVG. For a TVG to exist, there must have been acquiescence by the landowner for a period of at least 20 years. Since a TVG depended on access to the land as of right, express permission or consent could defeat it. Access had to be, as the old law put it, nec vi, nec clam, nec precario (neither by force nor secretly nor by permission).

5

In applicants' favour is 15(7), since where an application is made under s.15(2) in respect of a continuing right of access, a grant of permission cannot defeat it. But that does not apply in this case. S.15 commenced on 6 April 2007. Since the 5 year limitation under s.15(4) runs from a cessation of use by inhabitants which occurred before that date, the time within which an application could be made would vary and might be very short indeed. As is obvious, if the cessation ceased before 6 April 2002, no advantage could be taken of s.15(4). In this case, the period available to the applicant (assuming the date of cessation is correctly identified) amounted to some 2 1/4 years.

6

S.24 of the 2006 Act enables regulations to be made to make provision as to the making and determination of any application for the amendment of a register of TVGs. S.24(2) specifies what may in particular be provided for in Regulations. They include, as might be expected, the steps to be taken by an applicant, the form of an application, the information or evidence to be supplied with an application and the persons to be notified of an application. The relevant Regulations are the Commons (Regulation of Town or Village Greens)(Interim Arrangements)(England) Regulations 2007 (2007 No.457). The relevant regulations are 3, 4 and 5 which provide as follows:-

"3 — Application to register land as a town or village green

(1) An application for the registration of land as a town or village green must be made in accordance with these Regulations.

(2) An application must-

(a) be made on form 44;

(b) be signed by every applicant who is an individual, and by the secretary or some other duly authorised officer of every applicant which is a body corporate or unincorporated;

(c) be accompanied by, or by a copy or sufficient abstract of, every document relating to the matter which the applicant has in his possession or under his control, or to which he has a right to production;

(d) be supported-

(i) by a statutory declaration set out in form 44, with such adaptions as the case may require; and

(ii) by such further evidence as, at any time before finally disposing of the application, the registration may reasonably require.

(3) A statutory declaration in support of an application must be made by-

(a) the applicant, or one of the applicants if there is more than one;

(b) the person who signed the application on behalf of an applicant which is a body corporate or unincorporated; or

(c) a solicitor acting on behalf of the applicant.

4. Procedure on receipt of applications

(1) On receiving an application, the registration authority must-

(a) allot a distinguishing number to the application and mark it with that number; and

(b) stamp the application form...

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