The Queen (on the application of The Master Fellows and Scholars of College of Saint John the Evangelist in the University of Cambridge) v Cambridgeshire County Council David Rhys Hughes Davies (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 12 July 2017 |
| Neutral Citation | [2017] EWHC 1753 (Admin) |
| Date | 12 July 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/632/2017 |
[2017] EWHC 1753 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Ross Cranston
(Sitting as a Judge of the High Court)
Case No: CO/632/2017
George Laurence QC and Claire Staddon (instructed by Mills and Reeve) for the Claimant
Paul Wilmshurst (instructed by LGSS Law) for the Defendant
Hearing date: 29 June 2017
Approved Judgment
Introduction
This is an application for permission to apply for judicial review. It was ordered for a rolled up hearing on 20 March 2017 by Mrs Justice Lang. The claimant is ordinarily referred to as St John's College, Cambridge and I will refer to it as "the College" in this judgment. It seeks permission to apply for judicial review of two decisions of Cambridgeshire County Council ("the Council)." The Council is the commons registration authority for its area under the Commons Act 2006 ("the 2006 Act").
The decisions challenged relate to an application by the interested party, Mr Davies, on behalf of the North Newnham Residents Association, to register land belonging to the College as a town or village green under section 15 of the 2006 Act. The land in question is adjacent to Wilberforce Road, Cambridge and the Coton footpath, referred to by Mr Davies as the Meadow Triangle. I shall call it "the land" in this judgment. The first decision challenged is a decision of 19 August 2016 by which the Council gave Mr Davies a further opportunity to take action to put his application in order ("the first decision"). If needs be the College applies for an extension of time to challenge that decision. The second decision challenged is that of 9 November 2016 to treat as duly made Mr Davies's application dated 21 July 2015 for the registration of the land as a green.
The case raises, apparently for the first time, the question whether the correction of defective applications to ensure that they are duly made under the 2006 Act is limited to one occasion only.
Background
On 1 September 2014, the College lodged a statement with the Council as the registration authority under section 15A of the 2006 Act and section 31(6) of the Highways Act 1980, in relation to "Grange Farm, University Sports Ground and adjacent land, Wilberforce Road". That described area includes the land the subject of this judicial review. The effect of the deposit was to bring to an end any period during which persons may have indulged as of right in sports and pastimes on the land. Notices were erected on the land to this effect.
Under a covering letter of 22 July 2015, Mr Davies delivered to the Council by hand a Form 44, Application for the Registration of land as a Town or Village Green. The form itself was dated 21 July 2015 and indicated that it was an application under section 15 (2) of the 2006 Act, i.e. that a significant number of the inhabitants of a locality, or of a neighbourhood within a locality, had indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years. The form gave the name of the applicant as the North Newnham Residents' Association and an address.
Section 6 of the form asks applicants to show
"the locality or neighbourhood within the locality to which the claimed green relates, either by writing the administrative area or geographical area by name below, or by attaching a map on which the area is clearly marked."
There Mr Davies wrote: "See associated map 2 attached where the North Newnham Residents' Association area is outlined in red and Meadow triangle in blue." There was a map to this effect attached.
Justification for the application is the subject matter of section 7 of the form. There Mr Davies explained that the membership of the residents' association covered the households living in an area marked red on the map. He added:
"The area covered by the Residents' Association is in the northern section of the part of Cambridge generally described as West Cambridge. It is also forms (sic) a small part of the West Cambridge Conservation area and the Ward of Newnham but has its own identity within that, as evidenced by the Residents' Association and its activities".
The text for section 7 added that a significant number or those living in the area had used the land for sports and pastimes for at least 20 years and it was valued as a neighbourhood facility.
With the form were 17 witness statements from other residents in the area, describing their use of the land.
In a short email of 30 July 2015 the Council acknowledged that it had received the application.
Some 6 weeks later, on 11 September 2015, the application was returned to Mr Davies: the Council's letter explained that only seven of the user evidence forms demonstrated 20 or more years of use and that was not a sufficient basis to recommend registration as a village green. The letter concluded by asking whether there was more user evidence and explained that the application could be resubmitted. It is common ground that the Council was wrong to return the application on this basis. In its defence the government guidance in this regard is misleading, as will be seen below. User evidence goes to the merits of an application, to be considered pursuant to regulation 6 of the 2007 Regulations, not to the procedural issue of whether an application is duly made.
On 9 October 2015 Mr Davies resubmitted the application with additional witness statements. The Council acknowledged receipt on 9 October 2015. This date, 9 October 2015, is the date of the Council stamp "Commons Registration Act 1965" on the form which Mr Davies had submitted first on 22 July and resubmitted that day, the 9 October. As the Council later acknowledged the application should not have been stamped with the 9 October date, but should have had the date 22 July 2015 affixed to it, the day it was first received.
Some five and a half months later, on 24 March 2016, the Council sent the College a copy of the notice it had placed the previous day on the land as required by the 2006 Act. It also informed the College that the notice appeared in the local press. Attached to the notice was a copy of a map.
The following month, 21 April 2016, the College's solicitors wrote to the Council asking, firstly, for an explanation of the discrepancy between the date of the application form, 21 July 2015, and the date of the stamped receipt, 9 October 2015. The letter also referred to the landowner's statements made by the College and deposited with the Council in early September 2014 under section 15A of the 2006 Act and section 31(6) of the Highways Act 1980. These showed, it said, that the land was not being used as of right on 9 October 2015. The letter invited the Council to reject the application and for a speedy response to avoid the need for the College to make a formal objection to the application.
There was no response, so the solicitors sent an email on 26 April reiterating the points already made.
The following day, 27 April, the Council responded. The explanation for the lapse of time between 21 July 2015 and 9 October 2015 was "to allow the applicant to put his application in order". The form, it was said, had been incorrectly stamped with the 9 October date. The application therefore fell within the grace period of 12 months from the deposit of the landowner's statements. In a further email of 28 April the Council stated that although Mr Davies had used the word "resubmitted" the Council considered that the relevant date for the application was when it was first submitted on 22 July 2015.
The College's solicitors lodged a formal objection statement on 4 May 20Mr Davies' application was not duly made, it said, for a number of reasons. These were, first, that the application required an Ordnance Survey map; secondly, that needed to be signed on the back as an exhibit to the statutory declaration; and thirdly, the basis of the application should have been stated as section 15(3), not section 15(2) of the 2006 Act. Under the heading "Particulars", the formal objection added that the application was not duly made because section 6 of Mr Davies' Form 44 showed the neighbourhood relied on but not a locality as required. Moreover, the neighbourhood identified was not in law or fact a neighbourhood.
After further correspondence on 18 May 2016, the College's solicitors wrote, in a constructive manner, suggesting a way forward, subject to agreement. That was that the applicant needed to correct the application, and that he should be afforded a reasonable period, 21 days was suggested, within which he must do that. The College would then be in a position to object to the application after the Council re-advertised it.
Mr Davies emailed the Council on 30 May 2016 inquiring what was happening.
The Council wrote to the College on 6 June 2016 agreeing with the course it had proposed on 18 May. The same day it wrote to Mr Davies, advising him of the three details identified in the College's formal objection which needed correction to ensure that the application could be considered as duly made. Mr Davies was also sent the College's formal objection and asked for comment. By oversight, as the Council now puts it, the Council did not raise with Mr Davies the locality issue which had been set out in the particulars. No date was set for the return of the amended application because of the need to make inquiries about trigger and terminating events under section 15C of the 2006 Act.
The following day the Council accepted in...
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