Whitmey, R (on the application of) v The Commons Commissioners

Land may become a town or village green after the original registration period under the Commons Registration Act 1965. Section 13 permits the register to be amended accordingly.

A registration authority, rather than a Commons Commissioner, may determine a disputed section 13 application. It must reach a reasoned decision without any presumption for or against registration. A serious dispute will ordinarily require a non-statutory public inquiry conducted by an independent legal expert.

The statutory scheme complies with article 6. Registration may be challenged through the High Court’s broad rectification jurisdiction, while refusal may be challenged by judicial review. A landowner may also seek a declaration before registration.

The appellant sought judicial review of the Commons Commissioners’ decision that they lacked jurisdiction over disputed applications to register land as a town or village green under section 13 of the Commons Registration Act 1965. Richards J refused renewed permission, holding that registration authorities decided such applications and that the available procedures complied with article 6 of the European Convention on Human Rights.

With permission from Carnwath LJ, the matter proceeded in the Court of Appeal as both an appeal and a judicial review claim. The appellant additionally sought permission to argue that section 13 applied only where an application related back to an entry made before 3 January 1970.

The central issues were whether post-1970 greens could be registered, whether Commons Commissioners had jurisdiction over disputed section 13 applications, and whether determination by registration authorities was lawful and Convention-compliant.

1. The appeal and judicial review claim were dismissed. Permission was refused for the additional ground concerning the original registration period. Arden LJ gave the leading judgment. Waller LJ agreed and added reasons; Pumfrey J agreed with both judgments.

2. The Commons Registration Act 1965 contemplates that class (c) greens may arise after 3 January 1970. Section 13 expressly permits amendment where land becomes a town or village green. Restricting it to land connected with a pre-1970 entry would rewrite the legislation. The reasoning in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] AC 335 confirmed that conclusion.

3. Section 5(7) concerns objections arising within the original section 5 registration procedure. It does not extend to objections to applications under section 13. Commons Commissioners therefore have no jurisdiction to determine disputed section 13 applications.

4. A registration authority may determine a section 13 application despite a factual dispute. It must be satisfied that the application is duly made and must apply no presumption either for or against registration. Where a dispute is serious, the authority should ordinarily obtain the report of an independent legal expert following a non-statutory public inquiry. It may instead await court proceedings, particularly where litigation is pending or the authority has a conflict of interest.

5. Disputes may be resolved by a declaration sought before registration, by the registration authority, or through rectification after registration under section 14(b). A landowner does not abuse the court’s process by seeking a declaration without awaiting the registration decision. Section 14(b) permits a full factual review and does not bind the High Court to findings made at a non-statutory inquiry.

6. The scheme is compatible with article 6. Rectification under section 14(b) supplies judicial control as wide as the nature of a decision to register requires. Where registration is refused, judicial review following a proper decision-making procedure also provides sufficient control. Although registration interferes with an owner’s enjoyment of land for the purposes of article 1 of the First Protocol, the interference is justified by the public-policy purposes of the statutory scheme.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 951, dismissed the appeal and the application for judicial review, and refused permission to advance the additional ground concerning pre-1970 registration.
2. High Court, Queen’s Bench Division, Administrative Court: Richards J refused the renewed application for permission to seek judicial review. He held that registration authorities determined section 13 applications, Commons Commissioners lacked jurisdiction, and the available procedure was compatible with article 6. No citation is stated.
3. Administrative Court: Sullivan J initially refused permission on the papers. No citation is stated.