Hampshire County Council

Regulatory Committee

Item No 16

27 April 2005

Commons Registration Act 1965 - Application to Register Land at West Dean, Hampshire as a Village Green

Report of Chief Executive

Contact: Dalee Kaur, Senior Solicitor ext 6605

With the concurrence of the Chairman under Section 100(B)(4)(b) of the Local Government Act 1972, this matter was included on the agenda to expedite the progress of the village green application.

1. Summary

1.1. This report deals with an application by West Dean Parish Council to register land at West Dean, Hampshire as a new village green under s. 13 of the Commons Registration Act 1965 ("the 1965 Act"). Hampshire County Council is the relevant registration authority.

Previous Reports of the Chief Executive dated 26 February and 16 July 2003

together with a Plan of the application site is contained in Appendix 2 to this

Report.

1.2. The Opinion of counsel has been taken on behalf of the registration authority. A copy of counsel's Opinion dated 18 April 2005 is contained in Appendix 1 to this Report.

1.3. Counsel advises that the registration authority should:

(a) reject the application in relation to that part of the application land which is owned by Mr and Mrs Morgan; and

(b) accede to the application in relation to the rest of the application land.

1.4. It is recommended that counsel's advice should be followed.

2. The Facts

2.1. West Dean Parish Council applied in 2001 to register land at West Dean as a new village green.

2.2. Part of the application land ("the Morgan Land") is owned by Mr and Mrs Morgan, who object to the application on the ground that their land does not fall within the legal definition of "town or village green" within s. 22(1A) of the 1965 Act.

2.3. There has been no objection to the registration of the rest of the application land ("the Remaining Land") and counsel has advised that there is evidence to support the application in relation to this land and that the county council, as registration authority, should register the Remaining Land as a new green.

2.4. The application has a tortuous history which is set out fully in counsel's Opinion.

2.5. In the light of the recent (February 2005) decision of the Court of Appeal in the Trap Grounds case in Oxfordshire, it is accepted by the applicant's solicitors that the application is bound to fail in relation to the Morgan Land as the law now stands.

2.6. However, the applicant's solicitors have requested the county council to defer its decision pending an appeal to the House of Lords in the Trap Grounds case. This application is opposed by the Morgans.

2.7. The position in relation to the Trap Grounds case is that no appeal can be brought without the permission of the Court of Appeal or the House of Lords. The Court of Appeal has refused permission but an application for permission has been made to the House of Lords. The House of Lords has not yet decided whether to grant permission to appeal. If it does, the result of any appeal would probably not be known for about a year.

3. Deferment of Decision

3.1. Counsel has advised that in support of the application for deferment it can be argued:

(a) that the legal issues are difficult;

(b) that the Court of Appeal itself recognised that further corrective action by the House of Lords in its judicial capacity might be required (para 25);

(c) that the Morgans themselves requested deferment when the first instance decision in the Trap Grounds case went against them;

(d) that a valuable local resource might be lost if the application is rejected and subsequently the House of Lords reverses the Court of Appeal;

(e) that the Parish Council may not be able to afford to have recourse to the courts to challenge a rejection decision; and

(f) that in practice the Morgans may well not be able to sell their property for full value while any appeal in the Trap Grounds case is pending, particularly if the Parish Council applies for judicial review.

3.2. Counsel has advised that in support of the request by the Morgans for an immediate decision, it can be argued:

(a) that they have had this application hanging over their heads since 2001;

(b) that they want the application decided to assist in the disposal of their property;

(c) that it is uncertain whether permission to appeal will be given in the Trap Grounds case;

(d) that, even if permission to appeal is given, the appeal is unlikely to be heard by the House of Lords for another year;

(e) that the result of any appeal is uncertain; and

(f) that the Morgans are entitled to have a decision in accordance with the law as it now clearly stands.

3.3. Counsel has advised that the arguments are finely balanced. However, he considers that the balance falls in favour of the Morgans. As the law now stands, they are entitled to have the application rejected insofar as it applies to their land. If they were to apply to the court for a ruling (as they are entitled to do under the recent decision in R (Whitmey) v Commons Commissioners [2005] 1 QB 282), they would be entitled to summary judgment for an order that their land was not a registrable village green. They have a legitimate reason for wanting the matter decided. As the Parish Council disagrees with the present law, it has a legal recourse against a decision to reject, i.e. to apply for judicial review. Alternatively, it could, before the application is determined, itself apply to the court for a ruling under the Whitmey case. If the House of Lords grants leave to appeal in the Trap Grounds case, the court would probably defer any hearing of the judicial review or Whitmey application until after the House of Lords decision, so that the need for a substantive hearing of the judicial review or Whitmey application is unlikely. The Parish Council can therefore protect its position by taking the appropriate legal steps without great risk as to costs.

3.4. Counsel recommends that the county council should reject the application for deferment of its decision.

4. Counsel's Recommendation

Counsel therefore recommends the county council as registration authority:

(a) to reject the applicant's request for deferment of its decision;

(b) to reject the s. 13 application insofar as it relates to the Morgan Land; and

(c) to accede to the s. 13 application in relation to the rest of the application land.

Counsel further recommends that the council must give written reasons for the part rejection. He recommends that they are stated as follows: "because relevant user is not continuing for the purposes of CRA 1965 s. 22(1A)(a)".

5. The Documents

All documents relating to the application, including counsel's opinions, are available to members of the committee for inspection and consideration on request.

Recommendation

The Chief Executive recommends that counsel's advice should be followed and that the committee should resolve:

(a) to reject the applicant's request for deferment of its decision;

(b) to reject the s. 13 application insofar as it relates to the Morgan Land;

(c) to accede to the s. 13 application in relation to the rest of the application land; and

(d) to give the following written reasons for the part rejection: "because

relevant user is not continuing for the purposes of CRA 1965 s.

22(1A)(a)".

Section 100 D - 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.