Cheltenham Builders Ltd., R (on the application of) v South Gloucestershire Distrcict Council

The claimant sought to quash the defendant's decision to amend the Register of Town and Village Greens by registering land at Magpie Bottom as a class (c) village green under the Commons Registration Act 1965 (as amended by the Countryside and Rights of Way Act 2000).

The court identified and decided the principal legal issues: (1) whether the applicants had proved, on the balance of probabilities, that the whole of the site had been used for lawful sports and pastimes for at least 20 years (user); (2) whether the persons using the land were inhabitants of a recognised "locality" or a "neighbourhood" within a locality for the purposes of section 22(1A) of the Act (locality); (3) whether user had continued "as of right" up to the relevant date given the landowner's prior objections (as of right); and (4) whether the registration authority's procedure was fair in the absence of an oral hearing (fairness).

The decision to register was quashed because the committee's report and adopted decision failed on three grounds: (a) the written evidence did not establish probable use of the whole site for the requisite period; (b) the delineated area did not amount to a "locality" (a sufficiently cohesive, definable community) and the red-line plan was arbitrary; and (c) the authority had not adopted a fair procedure by deciding to register without an inquiry or hearing where contested factual questions remained. The court also held that the applicants' earlier withdrawal of their first application and the landowner's objections meant user had not continued "as of right." The court reserved the precise form of relief.

This judgment arises from a judicial review and a concurrent Part 8 claim under section 14 of the Commons Registration Act 1965. The claimant (a property developer and registered proprietor of most of the site) challenged the defendant registration authority's decision of 8 September 2002 to add Magpie Bottom to the register as a class (c) village green. The defendant had processed two applications by local residents, the second being made on 5 October 2001 and accompanied by 24 standard evidence questionnaires.

The case concerned the statutory framework for class (c) greens: land used "as of right" for not less than 20 years by a significant number of inhabitants of a locality or neighbourhood, as redefined by sections 98 and 103(2) of the Countryside and Rights of Way Act 2000 (inserting subsection (1A) into section 22). The registration procedure was governed by the Commons Registration (New Land) Regulations 1969. The claimant sought a quashing order, declaratory relief that the site is not a village green, and a mandatory order to remove the entry; alternatively a section 14 rectification under Part 8 was available.

The court framed four principal issues: user (whether the whole site had been used for 20 years), locality (whether the users were inhabitants of a lawful locality or a neighbourhood within one), continuation "as of right" (whether earlier objections meant user became contentious), and fairness of the procedure (necessity for an oral inquiry or hearing). The judge analysed the registration officer's report and the underlying evidence.

• User: the report itself acknowledged most of the site was overgrown and that some claimed activities were "unlikely" or "questionable", while merely stating it was "possible" some activities occurred. The judge held that, read as a whole, the report left unresolved which activities, to what extent, and over how much of the site they occurred. That uncertainty made it unreasonable to conclude the whole site had probably been used for 20 years, so the application should not have succeeded on the written evidence alone.
• Fairness: given the unresolved factual questions central to user, the authority should have considered a non-statutory inquiry or an oral hearing before accepting the application. The statutory scheme and regulations do not prescribe an oral hearing, but fairness and the duty to take reasonable steps to ascertain facts require the authority to adopt a procedure proportionate to the disputes of fact.
• Locality: the area delineated by a red line on the plan was, for most of its length, arbitrary and not shown to be a distinct and identifiable community. The judge held that "locality" requires a sufficiently cohesive entity (ordinarily an administrative unit known to law) and that a line on a plan does not, by itself, create a locality. The neighbourhood concept inserted by the 2000 Act did not remove the need for a locality; a neighbourhood must lie within a single locality.
• As of right: the claimant's substantive objections and the withdrawal of the first application meant that user had ceased to be "as of right" after the applicants withdrew their first application, so user did not continue up to the second application date.

On remedy the court held that section 14 provides a wide power to rectify the register but does not oust judicial review; the court exercised its discretion to quash the decision and the registration itself, reserving specifics of the final orders and costs for further submissions.

The claimant's challenge succeeds and the decision to register the site as a village green is quashed. The court concluded the register entry was unlawful because (1) the written evidence did not establish probable use of the whole site for lawful sports and pastimes for the requisite period; (2) the area delineated on the plan was not a lawful or sufficiently cohesive "locality" or neighbourhood within a locality; and (3) the registration authority acted unfairly in determining the application without an oral hearing where key factual disputes remained. The judge accepted that user had not continued "as of right" after the earlier objection and withdrawal of the first application. The court reserved the precise form of relief for later consideration.