The Church Commissioners for England v Hampshire County Council & Anor

An application to register land as a town or village green must comply with the mandatory requirements of the applicable regulations. A defective application may nevertheless be corrected after the statutory limitation period, and the corrected application may have retrospective effect, provided the registration authority has received an application and the landowner is given fair notice.

The authority must allow only a reasonable period for correction. Fairness is particularly important because registration may interfere with the landowner’s rights under Article 1 of the First Protocol. Applicants acting without legal assistance should not generally be defeated by technicalities, but landowners must have a proper opportunity to challenge delay and non-compliance.

The claimant owned Bushfield Camp in Hampshire and intended to develop the land. The interested party applied to Hampshire County Council for registration of the land as a town or village green under section 15(4) of the Commons Act 2006, relying on at least 20 years’ use as of right which had ended when fencing was erected in 2003.

The application was submitted on 30 June 2008, within the apparent five-year period, but was defective. The registration authority allowed the interested party opportunities to correct the defects. A compliant application was completed on 20 July 2009, more than a year after the limitation period had expired.

The claimant sought judicial review of the decision to treat the application as valid and capable of proceeding to determination on its merits. The central issue was whether a corrected application could retrospectively take effect from the date of the original submission.

1. The claim was dismissed. The court held that the corrected application could in principle have retrospective effect and could therefore be treated as made within the five-year period in section 15(4) of the Commons Act 2006.

2. The requirements imposed by the Commons (Regulation of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 were mandatory. A defective application was not duly made merely because its defects were minor. The de minimis principle could require an authority to accept an application despite an insubstantial defect, but it did not itself extend the statutory limitation period.

3. The regulations contained no provision requiring a corrected application to receive a new date of receipt. That supported treating a corrected application as made when it was originally submitted, provided the landowner was notified that an application had been made.

4. Fairness formed part of the proper exercise of the statutory power. The regulations ought to have required notice to the landowner, even if not by the formal procedure otherwise specified. Such notice was essential in view of the potential interference with the landowner’s Article 1 First Protocol rights and enabled the landowner to press for a reasonable period for correction.

5. The reasoning in R(Fellows of Winchester College v Hampshire CC [2010] 1 WLR 138 and R(Marondas) v SSEFRA [2010] EWCA Civ 280 supported strict compliance with statutory application requirements, but did not establish that retrospective correction was unavailable under the different regulatory scheme.

6. The period allowed for correction had been excessive, and the interested party had delayed. However, the claimant knew of the application, did not press for an earlier decision, and had assisted by agreeing to provide a map. In those circumstances it could not complain successfully about the delay.