Contact: Dalee Kaur, Solicitor, ext 6605

1 Summary

1.1 This Report deals with an application to register land known at Chivers Field, Romsey as a village green under the Commons Registration (New Land) Regulations 1969 made pursuant to section 13 of the Commons Registration Act 1965 (`the 1965 Act').

1.2 The Regulations set out the procedure to be followed in seeking to amend the

register of the town and village greens maintained by the County Council as registration authority.

1.3 Mr Morgan of Counsel has advised that this application be rejected as it raises the same issues as in the previous application which was rejected by the Regulatory Committee on 16 July 2003.

1 Background

1.1 The background in this matter is set out in the Report of the Chief Executive dated 29 May 2002 and 16 July 2003 (Appendix 1).

1.2 Following refusal by the Regulatory Committee on 16 July 2003 to register land at Chivers Field, Romsey as village green, the Applicant Mrs Clea Atkinson has submitted a further two applications to register land as village green which were received by the Registration Authority on 28 July 2003. The applications relate to the area of Chivers Field/Abbotswood 1) to the area to south of the haul road and 2) to the area to the south of the haul road, but excluding the land to the south of the scout hut. The plans of the application land are at Appendix 2. The areas therefore sought to be registered are comprised entirely within the area sought to be registered in the former claim, there is no additional land.

1.3 The applications accompanied one letter from a Mr Hemmings dated 5 January 2003. The Applicant asked the Registration Authority to consider all the evidence in support of the former application which was rejected by the Regulatory Committee on 16 July 2003.

1.4 The Applicant was allowed until 31 October 2003 to produce further evidence which comprises a statement by her in support of the applications, 162 New Chivers Field User Surveys (13 of which have been completed by persons who completed a user survey previously and 18 of which relate to the whole area the subject of the former claim), four excerpts from diary kept by a Mrs Trussler in 1985, a statement on the grassland of Chivers Field by David Barker (who gave evidence in connection with the former claim), photographs of cattle on Chivers Field and a letter to Mr Barker from Stone Common Plot Trustees.

2 Counsel's Advice

3.1 Mr Morgan has been asked to advise in connection with the applications and following receipt of his advice raised an important preliminary issue which, the Registration Authority had to consider in respect of the repeat applications.

3.2 Unfortunately the Regulations do not provide for, nor anticipate, repeat applications. In the recent High Court case of Oxfordshire County Council v Oxford City Council and Catherine Mary Robinson judgment given 22 January 2004, in which the Court had been asked to give guidance in connection with town and village green Mr Justice Lightman said at paragraph 15xi) of his judgement `it may be reasonably inferred that decisions of the registration authority on the status of the land the subject of the application are intended to be final and definitive, and not merely the prelude to further later applications by the applicants or other applications covering the same or much the same ground . There is public interest in the outcome'.

3.3 There is a legal principle called `estoppel in rem judicatum' or `cause of action estoppel' which says that where a matter has been determined by an appropriately authorised tribunal, the matters cannot be litigated again; legal policy being that the parties to a judicial decision should not afterwards be allowed to re-litigate the same question, even though the decision may be wrong. If it is wrong, it must be challenged by way of appeal, or not at all.

3.4 The question therefore arises as to whether the applications are effectively the same as the original application such that the principle of estoppel in rem judicatum should apply, in which case the Registration Authority could resolve not to determine the applications; or if are they different to the original one, the Authority should then proceed to give publicity to the applications, as set out in the Regulations and thereafter proceed to look into the merits of the applications, accepting or rejecting them as it then sees fit.

3.5 Counsel advised that the Authority write to the Applicant and the Objector inviting them to submit representations to the Registration Authority on the question of whether the legal principle of estoppel by rem judicatum applies in respect of the new applications or whether they are sufficiently different, and if so, in what respect(s), such that the Authority could proceed to determine them on their merits.

3.6 Letters were sent on 7 May 2004. The Applicant responded by letter dated 17 May 2004 and Objector, TLT Solicitors have responded by letter dated 21 May 2004 which enclosed an Opinion by Gregory Jones of Counsel, dated 18 May 2004. On receipt of representations, further advice was sought from Mr Morgan.

3 Counsel's Further Advice

4.1 In summary the Applicant makes the following representations:-

a) the Applicant explains that she followed the path of a new application to remedy the defects in Mr Morgan's Report dated 16 July 2003 and to avoid the need for litigation in the form of a judicial review of the Registration Authority's decision to reject her original application. The Applicant refers to the case of Cowl v Plymouth City Council 2002 1WLR 803. However, that case related to the proposed closure of a residential care home for the elderly and the circumstances were entirely different from those relating to an application under the 1965 Act;

b) the Applicant claims that the differences in the application are plain - the land is different and the evidence is different, with additional material having been found to address the doubts of the Inspector over the use of parts of the site;

c) the Applicant also complains about the Registrations Authority taking advice from Mr Morgan. She says that this is even more important "when one remembers that his Inquiry is founded upon a judgement where the Order Making Authority failed to win one critical point. That point was argued fully, and the barrister who failed to argue it was the same barrister who sat as this Inspector and advises you now". However, Mr Morgan makes it clear that his Report was not written upon the basis of the judgment in Laing Homes Ltd v Buckinghamshire County Council and the Secretary of State for the Environment, Food and Rural Affairs (2003), ELR 763

4.2 In summary the Objectors response is as follows:-

a) the two new applications involve no new land from that considered by the previous application;

b) accordingly they are not in substance new applications and represent an application for a reconsideration of the original application, albeit in a smaller form;

c) there is no provision in the 1965 Act or Regulations for repeat applications;

d) there are good grounds in support of the view that it is not open to the Registrations Authority to reopen this determination;

e) even if the Registration Authority does have power to reconsider another application, the circumstances of the present case do not justify a reconsideration of the decision of 16 July 2003.

4.3 Mr Morgan concluded that there needs to be certainty in such applications and it seems very unsatisfactory, unless there was very good reason, for the

Applicant to be able to re-open the same issues that have already been determined.

4.4 He accepts that circumstances can change between applications and there might be a material change that does mean that the Authority has jurisdiction. However, in this case the issues raised by the new application appear identical to those that have been addressed on the previous application which the Authority has rejected. The area of land is smaller but that smaller area was directly considered in his Report dated 16 July 2003. The Applicant has used the new applications to bring forward additional evidence, however, there appears to be no good reason why that evidence was not brought forward at the time of the original application and inquiry. In his view the possible change in the 20 year period does not materially change matters in this case.

4.5 Mr Morgan accepts that the rule of res judicata can sometimes be avoided where there has been a discovery of fresh evidence which entirely changes the case and was not and could by reasonable diligence have been obtained before. However, that does not appear to be the case here. Further, the rule can also be avoided where there has been a material change in the law, however, again that does not appear to arise in this case.

4.6 Mr Morgan has advised that the Registration Authority has to be seen to be fair and to be fair to the Applicant and Objector in determining this matter.
He also looked at the effect of the Human Rights Act in respect of determinations under the 1965 Act. Although it is still very open it is relevant to note that in this case the Applicant was given every opportunity to present her case at the original inquiry; she had the opportunity to judicially review the Authority's original decision; she has been given the opportunity to explain the differences between the new and original applications; she has been given the opportunity to comment upon the issue of res judicata. At the same time the Authority cannot ignore the interests of the Objector who are trying to promote their site through the emerging development plan process.

Recommendation

That the applications for registration made on 23 July 2003 by Mrs Atkinson in respect of Chivers Field, Abbottswood, Romsey, be refused on the grounds that they are repeat applications as rejected by the Regulatory Committee on 16 July 2003 and do not raise any significant new issues for consideration by the Registration Authority.

Section 100D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this Report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this Report.

NB: the list excludes:

1. Published works

2. Documents which disclose exempt or confidential information as defined in

the Act

Nil