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

Section 194 of the Law of Property Act 1925 does not require a public local inquiry in every case. Its reference to the inquiries directed by the Commons Act 1876 concerns the local inquiry required where a prima facie case has been made out and it is expedient to proceed. The words “if necessary” therefore have operative effect. They permit an application to be determined without an inquiry where those conditions are not satisfied. The use of “inquiries” rather than “inquiry” does not alter that construction, since the plural may include the singular. A construction requiring an inquiry for every application, however minor or unopposed, would produce an absurd result.

The claimant, the General Secretary of the Open Spaces Society, challenged the Secretary of State’s consent under section 194 of the Law of Property Act 1925 to fencing on Wisley Common. The fencing was intended to permit grazing and protect livestock from nearby roads. The claimant accepted that the merits of the consent were not challenged, but argued that section 194 required a public local inquiry before consent could lawfully be given.

The central issue was the proper construction of section 194(1), particularly its reference to having regard to the considerations and, if necessary, holding the inquiries directed by the Commons Act 1876.

1. The claim for a declaration and an order quashing the consent was dismissed.
2. Section 194(1) of the Law of Property Act 1925 requires the Secretary of State to have regard to the considerations identified in the Commons Act 1876 and, where necessary, to hold the corresponding local inquiry. The cross-reference is to the local inquiry required by section 10(6) of the 1876 Act, rather than to any further inquiries which the Commissioners might themselves make.
3. Under section 10(6), an inquiry is required only where the decision-maker is satisfied both that a prima facie case has been made out and that, having regard to the benefit of the neighbourhood and private interests, it is expedient to proceed further. Section 194 does not make an inquiry mandatory for every application within its scope.
4. The words “if necessary” have a sensible function. They qualify the obligation to hold an inquiry and would otherwise be surplusage. The claimant’s construction would require an inquiry even for minor, unopposed and plainly beneficial works, which would be an absurd result.
5. The singular and plural forms cause no difficulty. The reference to “inquiries” may include the singular local inquiry. The Interpretation Act 1978 also supports that linguistic approach.
6. The court considered the principle in Pepper v Hart [1993] A.C.593, but found no ambiguity requiring recourse to parliamentary material. The Secretary of State’s long-standing construction was correct.