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

Registration of a class (c) village green requires proof, on the balance of probabilities, that the whole site was used for lawful sports and pastimes for the statutory period. The authority must identify the extent and nature of that use rather than rely on the possibility that some activities occurred.

A locality is not created merely by drawing an arbitrary boundary on a plan. It must be a sufficiently cohesive and identifiable entity. A neighbourhood must likewise possess sufficient cohesiveness and must be within a single locality.

Registration authorities have procedural discretion, but must act fairly and take reasonable steps to establish relevant facts. The availability of rectification under section 14 of the Commons Registration Act 1965 does not oust judicial review.

The claimant, a property developer, challenged the defendant council’s decision to register land at Magpie Bottom as a village green. The challenge arose from a judicial review claim and a concurrent claim under section 14 of the Commons Registration Act 1965.

The claimant argued that the evidence did not establish 20 years’ qualifying user of the whole site, that the claimed area was not a locality or neighbourhood, that use had ceased to be as of right after the claimant’s objections, and that the decision-making procedure was unfair without an oral hearing. The court also considered whether judicial review was available where section 14 provided a route to amend the register.

1. User. The applicants had to prove that, for practical purposes, the whole site had been used for lawful sports and pastimes for the requisite period. The officer’s report accepted that the land was largely overgrown, that some claimed activities were unlikely or questionable, and that only some activities were possible. It left unresolved which activities occurred and over what extent of the site. The committee therefore had no reasonable basis for concluding that the statutory test was met. The report also confused the burden of proof by referring to the claimant’s failure to produce compelling evidence.
2. Fairness. The statutory scheme and regulations did not prescribe a complete procedure or require an oral hearing. The registration authority nevertheless had to exercise its procedural discretion fairly and take reasonable steps to acquaint itself with the relevant information. Although the application could have been rejected on the written evidence, it could not fairly have been accepted without a hearing to resolve the material factual questions. The availability of an application under section 14 did not remove that duty.
3. Locality and neighbourhood. A locality required, at the least, a sufficiently cohesive entity capable of sensible definition. An arbitrary line on a plan was insufficient. A neighbourhood also required sufficient cohesiveness and had to be wholly within a single locality. The council had failed to consider whether the claimed area possessed those characteristics.
4. Remedy. Section 14 was not limited to errors of law or procedure and permitted the High Court to consider whether no amendment, or a different amendment, ought to have been made. It did not, however, exclude judicial review. In the absence of an express ouster, the court retained power to quash both the council’s decision and the resulting registration. Judicial review was appropriate because the issues were discrete and could be decided without oral evidence.
5. The claimant succeeded. The parties were to agree the appropriate relief and costs, with further submissions only if agreement proved impossible.