Ashbrook, R (on the application of) v Secretary of State for the Environment, Food & Rural Affairs

The claimant, the General Secretary of the Open Spaces Society, sought judicial review of the Secretary of State's consent under section 194 of the Law of Property Act 1925 to the erection of stock-proof fencing on Wisley Common. The sole ground of challenge was that, on the true construction of s.194, the Secretary of State was required to cause a public local inquiry to be held before giving consent.

The court analysed s.194(1) against the procedural provisions of the Commons Act 1876 (notably s.10(6) and s.11) and related statutes. It concluded that the phrase "hold the same inquiries" must be read in the context of s.10(6) as referring to the local inquiry where the statutory preconditions are met and that the words "if necessary" have a sensible operation in limiting when a local inquiry must be held. The court accepted the defendant's long-standing construction that a public local inquiry is not automatically required in every case and that an inquiry is required only where the statutory conditions (prima facie case and expediency) are satisfied.

Because the court found the defendant's construction correct and lawful, the claim was dismissed.

The claimant applied for judicial review of the Secretary of State's consent under section 194 of the Law of Property Act 1925 to erect a stock fence on Wisley Common, a designated Site of Special Scientific Interest. The Open Spaces Society opposed fencing and contended that the statutory wording required the Secretary of State to hold a public local inquiry before giving any consent under s.194. The defendant had followed established practice of advertising proposals, consulting consultees and using published criteria to decide when an inquiry should be held; between 1999 and 2003 only c.10–15% of decisions resulted from an inquiry.

• Nature of the claim: A claim for judicial review seeking a declaration that s.194 requires a public local inquiry before consent can be given and an order quashing the Secretary of State's consent.
• Issues framed:
  • Whether the wording of s.194(1) of the Law of Property Act 1925 requires that the Secretary of State must cause a public local inquiry to be held in every case before giving consent under that provision;
  • The meaning and effect of the phrase "have regard to the same considerations and shall, if necessary, hold the same inquiries" in its statutory and historical context (including s.10(6) and s.11 of the Commons Act 1876 and s.3 of the Law of Commons Amendment Act 1893).
• Court's reasoning: The judge examined the procedural requirements of the 1876 Act and concluded that "hold the same inquiries" sensibly refers to holding a public local inquiry where the 1876 Act's preconditions are satisfied (s.10(6)). The words "if necessary" were held to be meaningful in limiting when a formal local inquiry must be held and to avoid an absurd result that every prima facie allowable application would require a local inquiry. Historical materials and parliamentary debate under Pepper v Hart were not needed because the statutory language was held not to be ambiguous. The court also noted the long-standing administrative construction and practice of the Secretary of State extending back many decades.

The claim was dismissed and no further relief was granted.

This is a first instance decision: The claim is dismissed. The court held that section 194(1) of the Law of Property Act 1925, read with the Commons Act 1876 (notably s.10(6)), does not require the Secretary of State to hold a public local inquiry in every case before giving consent; a local inquiry is required only where the statutory preconditions are met and the words "if necessary" sensibly limit the duty to hold formal inquiries.

Permission to apply for judicial review was initially refused on the papers; Charles J granted permission on 6 May 2004. No further appellate history is stated in the judgment.