Town and Village Greens

July 19th, 2017 by James Goudie KC

In R (St John’s College, Cambridge) v Cambridgeshire County Council (2017) EWHC 1753 (Admin) the College sought permission to apply for judicial review of two decisions of the Council in its capacity as commons registration authority for the area under the Commons Act 2006.  The decisions challenged related to an application on behalf of a Residents Association to register land belonging to the College as a town or village green under Section 15 of the 2006 Act. The case raised, 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.

Section 15(1) of the 2006 Act provides that any person may apply to the commons registration authority to register land covered by the legislation as a town or village green where subsections (2), (3) or (4) apply.  Section 15(2) applies where a significant number of the 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 continue to do so at the time of the application. Section 15(3) 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…; and (c) the application is made within the relevant period”. The “relevant period” is defined as the period of one year beginning with the cessation mentioned in subsection (3)(b).

The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007, 2007 SI No 457 (“the 2007 Regulations”) apply to applications to register land as a town or village green under Section 15 of the 2006 Act. Regulation 2(4) provides that where a registration authority has to stamp a document, it has to affix its official stamp “which must bear the date mentioned in the requirement or (where no date is mentioned) the date when it was affixed”. Regulation 3(2)(a) states that an application for registration must be made on form 44, which is set out in the schedule to the Regulations. It must be supported by a statutory declaration as set out in form 44 and such further evidence as the registration authority requires. The procedure on receipt of applications is set out in regulation 4: on receipt of an application the registration authority must allot the application a distinguishing number, mark it with that number and stamp it indicating that date. Regulation 5 contains the procedure in relation to applications to which Section 15(1) of the 2006 Act applies.

Once a registration authority is satisfied that an application is duly made it takes the notification and advertising steps which are set out in Regulation 5(1). It is not at this point concerned with the merits of the application. Where action to rectify a not duly made application is successfully taken by the applicant under Regulation 5(4), the corrected version has retrospective effect. Regulation 5(4) must be construed so that the reasonable opportunity provided involves only a relatively short period of time.

Regulation 6 deals with the consideration of the merits of an application once it has been duly made, notified and advertised. Under Regulation 6(1) this must occur as soon as possible after the date by which statements in objection have to be submitted. The applicant receives the objections the registration authority intends to consider, and under Regulation 6(4) he must be given a reasonable opportunity of dealing with the matters raised by the objectors and other matters which appear to the authority to afford possible grounds for rejecting the application.

Regulation 10 provides for the description of land which is the subject of an application.

DEFRA published Guidance in October 2013 entitled Section 15 of the Commons Act 2006 Guidance notes for the completion of an application for the registration of land as a town or village green outside the pioneer implementation areas. Paragraphs 51-54 are relevant for present purposes.

Both parties submitted that the Guidance was in some respect misleading both for applicants and registration authorities Sir Ross Cranston accepted their submissions, although in his view the Council was correct in cautioning that any guidance of this nature cannot purport to be definitive or to cover all eventualities. Paragraph 53 is incorrect in suggesting that an authority should look carefully at the evidence before advertising the application, whereas consideration of the merits comes later. Paragraph 54 though correct as far as it goes refers (without identifying it specifically) only to paragraph (a) of Regulation 6(4). The authority also has an independent duty under Regulation 6(4)(b) to consider whether there are or are not such grounds and, if there are, to give the applicant a reasonable opportunity to deal with them. Following the hearing, Counsel for both parties redrafted the Guidance so that it more accurately represents the law. The redrafted Guidance is an annex to the Judgment. 

The College’s case was that Regulation 5(4) confers only a limited possibility of correction for defective applications under the 2006 Act. When it appears to a registration authority such as the Council that an application has not been duly made, an applicant has one reasonable opportunity to take the action which it appears to the authority might put the application in order. The Council’s only jurisdiction under Regulation 5(4) is to consider once, after preliminary consideration has been given to an application which appears not to be duly made, whether any action and if so what action might put it in order. If a registration authority mistakenly fails, first time round, to identify all the action required to put an application in order, it cannot later be allowed to say that, because the opportunity did not enable the applicant to put the application fully in order, there should be another opportunity. In other words the College’s case was that the registration authority must comprehensively identify the action an applicant is required to take to put the application in order, and the applicant has to correct the defects so identified within the short period of time which the authority must specify. The College accepted that where the registration authority gives an applicant what it comes to think was not a sufficient period of time to take action, it can extend the time for taking action. What it cannot do, however, is to give the applicant a separate, later opportunity to take some different action.  In the College’s submission, this followed both from the words of Regulation 5(4) and the underlying legal policy. Under the Regulation the registration authority can give the opportunity to correct “after preliminary consideration”, and in the College’s submission one can only give preliminary consideration once. Further, Regulation 5(4) provides for giving the applicant a reasonable opportunity of taking “that action”, reinforcing the once only opportunity. The intention of the draftsman, in the College’s submission, was that registration authorities must scrutinise applications properly the one time with a view to identifying every action needed to make them compliant with the Regulations. As to policy, the College contended that if Regulation 5(4) were interpreted otherwise it would mean that a registration authority could give an applicant a series of successive opportunities to remedy a defective application. That could be over potentially a very protracted period of time, without the landowner himself having in the ordinary case any part to play in the process. The process could go on for years. The landowner may have taken steps in the erroneous belief that its land was free from the risk of registration as a green. It was therefore a serious matter for a landowner to be confronted, some considerable time after the registration authority first received an application, with a corrected version taking effect retrospectively. The College underlined how a landowner’s plans for development could be stalled, with serious financial consequences.

In Sir Ross Cranston’s view the College’s interpretation of Regulation 5(4) does not accord with the underlying legal policy, is contrary to its language, and is unrealistic as a matter of practice.   First, the Regulation must be read against the background of a simple and informal process. This means that the threshold for regarding an application as duly made is relatively low.  Secondly, the Regulation falls naturally into two limbs:

“[limb 1] Where an application appears to the registration authority after preliminary consideration not to be duly made, the authority may reject it without complying with paragraph (1), but [limb 2] where it appears to the authority that any action by the applicant might put the application in order, the authority must not reject the application under this paragraph without first giving the applicant a reasonable opportunity of taking that action.”

The first limb is intended to cover situations where, on a preliminary consideration, the application is seriously defective and as such can be summarily rejected. The applicant may be advised to start again. The registration authority has a discretion in this regard. In reaching its decision it will balance its obligation to accept a valid application against its obligation to reject an application which does not comply with the statutory requirements. A decision to reject is subject to judicial review on ordinary public law principles.

The second limb of Regulation 5(4) is designed to cover situations where, as the words provide, it appears to a registration authority that, albeit that the application is defective, it can be put right. In that event the authority must offer the applicant a reasonable opportunity of taking the remedial action identified. Preliminary consideration does not enter into consideration under the second limb. There is nothing in the language to suggest that the applicant can be afforded only one opportunity to remedy a not duly made application. Regulation 5(4) would have undesirable consequences if it were to be read in this way.

Where a registration authority has not identified defects which render an application not duly made, the landowner has every incentive to uncover them after receiving the Form 45, in the hope that the authority might consider that, in light of their nature, the applicant should not be given the opportunity to remedy them, or that if he is given the chance, he will either fail to correct the defects, or fail to do this timeously. In other words, the bleak picture drawn by the College of endless delay if Regulation 5(4) is interpreted in the way the words suggest does not reflect the reality.  Given Sir Ross Cranston’s interpretation of Regulation 5(4), there was no objection to the Council offering the opportunity to correct the application for a second time.

Sir Ross Cranston granted permission to the College to apply for judicial review, but dismissed the application.

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