Somerford Parish Council v Cheshire East Borough Council & Anor

A registration authority may determine a town or village green application after obtaining advice from an independent legal expert, even where the authority has an interest in the outcome, provided the procedure is fair and the authority accepts the expert’s recommendations. Where late evidence is admitted, fairness ordinarily requires the applicant to have a proper opportunity to respond before the expert reports. A serious factual dispute about whether land forms part of a highway will ordinarily require a public inquiry, particularly where documentary evidence is uncertain and witnesses may need to be tested. The statutory threshold for refusing judicial review relief on the basis that the outcome would probably have been unchanged is high.

Mr Nicholas Bell applied under section 15(2) of the Commons Act 2006 to register land at Somerford as a town or village green. Cheshire East Borough Council, both registration authority and highway authority, objected. It obtained an opinion from Mr Marwick, an independent legal expert, who concluded that the land was highway land and recommended rejection.

The Council admitted late documentary evidence without giving Mr Bell a further opportunity to make representations before Mr Marwick gave his opinion. The Council then rejected the application. Somerford Parish Council sought judicial review on four grounds, alleging apparent bias, lack of independence, procedural unfairness and failure to hold a public inquiry. The central issues were whether the Council could fairly determine the application and whether the procedural defects were material.

1. Grounds 1 and 2 failed. The Council was not automatically disqualified from determining the application merely because it was an objector and highway authority. The appointment of an independent legal expert to conduct a non-statutory inquiry and make findings was an appropriate mechanism. Apparent bias would potentially arise if the authority rejected the expert’s findings, but it accepted Mr Marwick’s recommendations. His instruction and payment by the Council did not objectively establish apparent bias: the test was that of a reasonable member of the public who was neither complacent nor unduly suspicious, applying R (Persimmon Homes and BDW Trading) v Vale of Glamorgan Council [2010] EWHC 535 (Admin).
2. The registration authority has procedural discretion, but it must act fairly in the circumstances of the particular application. The approach in R (Cheltenham Builders Limited) v South Gloucestershire DC [2004] JPL 975 was applicable.
3. Ground 3 succeeded. The Council’s further evidence was filed and exchanged after the timetable had expired and after the applicant had prepared representations on the evidence previously served. Once Mr Marwick knew of the default and decided to consider the late material, fairness required him to offer Mr Bell an opportunity to make further representations. His failure to do so was a serious procedural defect that vitiated the fairness of the process. Later representations on Mr Marwick’s report did not cure the defect.
4. The late evidence materially concerned the alleged highway status of the land. The list of streets was strong evidence but was not determinative. The uncertain conveyancing material, conflicting evidence about maintenance and witness evidence concerning agricultural use raised factual issues requiring investigation.
5. Ground 4 succeeded. Applying R (Whitmey) v Commons Commissioners [2004] EWCA Civ. 951; [2005] QB 282, a serious factual dispute ordinarily required an independent expert to hold a public inquiry and find the requisite facts. Mr Marwick should have concluded that a public inquiry was necessary.
6. The Council and interested party failed to establish that it was highly likely that the outcome would have been substantially the same absent the error, as required by section 31(2A) of the Senior Courts Act 1981. The Council’s decision of 16 March 2015 was quashed.