Church Commissioners for England, R v Hampshire County Council & Anor

A defective application to register a town or village green may be corrected under regulation 5(4) of the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007. If corrected within a reasonable opportunity, it takes effect from the date of the original filing.

Whether the opportunity was reasonable is an objective question of law for the court, not a Wednesbury review of the registration authority’s decision. The assessment is pragmatic and fact-sensitive. It must balance the need to accept a correctable application against the need to reject one that remains non-compliant. Extensions must remain within reason, particularly where statutory time limits protect certainty in land registration.

Mrs Guthrie applied on 30 June 2008 to register land as a town or village green under section 15 of the Commons Act 2006. The application contained several defects. The registration authority returned it and allowed successive opportunities for correction. A fully compliant application was filed on 20 July 2009.

The Church Commissioners challenged the application, arguing that the original defective filing had no retrospective effect and that the period allowed for correction was excessive. Collins J held that a corrected application could retain its original filing date and that the opportunity allowed had been reasonable: [2013] EWHC 1933 (Admin). The appeal concerned both issues.

By a majority, Arden LJ and Richards LJ allowed the appeal. Vos LJ agreed on the retrospectivity issue but dissented on the meaning of reasonable opportunity and would have dismissed the appeal.

1. Retrospective effect. Regulations 4 and 5(4) of the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 contemplate one application. Regulation 4 requires it to be dated on receipt. If a defective application is put in order within the reasonable opportunity allowed by regulation 5(4), it retains its original date and has full effect from that date. The absence of a provision equivalent to section 67(3) of the Natural Environment and Rural Communities Act 2006, considered in R (Fellows of Winchester College) v Hampshire CC [2008] 3 All ER 717, supported that construction.
2. Reasonable opportunity. The question is one of law for the court. Parliament had not entrusted the issue to the registration authority’s opinion and had not required review only on Wednesbury principles. The assessment is objective but requires evaluation of the concrete facts, including the applicant’s lack of professional assistance and, where relevant, the characteristics of the land.
3. Practical assessment. Regulation 5(4) requires a pragmatic balance between accepting an application that can be made valid without undue difficulty and rejecting one that remains non-compliant. The period must remain within reason. Mere inactivity by a landowner does not waive an objection to excessive time. Positive action with knowledge of the material facts is required. The Church Commissioners’ assent to provision of a compliant map prevented objection to time taken over that map, but not to extensions concerning defects of which they were unaware.
4. Application. By April 2009 Mrs Guthrie had received a sufficient opportunity. The further deadline to 1 May 2009 was a final opportunity, and the later extension to reswear the statutory declaration went beyond what regulation 5(4) permitted. The original application therefore lost the ability to take effect from 30 June 2008. Any later application was too late under section 15(4) of the Commons Act 2006.
5. Dissent. Vos LJ considered that the reasonable opportunity was primarily a decision for the Council, challengeable only on Wednesbury grounds. Although the overall period was excessive, he did not regard the Council’s conduct as irrational or perverse.

• Court of Appeal (Civil Division). In [2014] EWCA Civ 634, the appeal was allowed by a majority. The court upheld the retrospective effect of a correction made within a reasonable opportunity but held that the opportunity allowed here was excessive.
• High Court of Justice, Queen’s Bench Division, Divisional Court. Collins J held that the corrected application retained its original date and that the opportunity allowed was reasonable: [2013] EWHC 1933 (Admin). The Court of Appeal allowed the appeal on the second issue.