Landowner wins appeal over time limits for village green application

A landowner has defeated an attempt to register as a village green land it owns that was previously the site of a military camp, after the applicant only fulfilled the registration requirements months after the relevant time limit.

Barbara Guthrie had sought to register as a TVG certain land at Bushfield Camp in Hampshire owned by the Church Commissioners.

She filed her application (TVGA) under the Commons Act 2006 on 30 June 2008 with the registration authority, Hampshire County Council. This was near the five-year time limit. However, the application was defective in a number of respects.

In a judgment dated 10 July, Mr Justice Collins held that an application to register land as a town and village green could as a matter of law be corrected.

The High Court judge also said that if the corrections were made within a reasonable period the corrected application would take effect from the filing date. (This first issue was known as the ‘retrospectivity issue’)

Guthrie finally complied with all the requirements for applications on 20 July 2009 – after the expiry of the time limit. Mr Justice Collins held that this was within a reasonable opportunity. (This second issue was known as the ‘reasonable opportunity issue’)

In Church Commissioners for England, R v Hampshire County Council & Anor [2014] EWCA Civ 634 the Court of Appeal upheld – by a majority of 2-1 on the second issue – an appeal brought by the Church Commissioners.

Lady Justice Arden said: “In my judgment, on the facts, the judge's ruling on the retrospectivity issue was plainly correct as a matter of statutory interpretation.

“However, on the reasonable opportunity issue I consider that what is a reasonable opportunity is ultimately a question of law for the court. The requirements for TVGAs represent a balance between the interest of the public and that of the landowner.”

Lady Justice Arden added: “That balance was struck by the time Mrs Guthrie had been given nine months to correct her application and help to complete it. Moreover she was warned that she had to complete it within a period of time which she exceeded on more than one occasion without explanation. I would therefore allow the appeal.”

Lord Justice Richards gave a shorter supporting judgment. Lord Justice Vos dissented on the ‘reasonable opportunity issue’, saying amongst other things that he did not think that the delays allowed by the council were perverse or irrational, “even though taken together the period was too long”.

Guthrie had never missed a deadline she was set by the council, the judge added.

With the Church Commissioners succeeding on the ‘reasonable opportunity issue’, Guthrie is now too late to file a new application to register the land as a town or village green. The Church Commissioners is now be able to develop the land, which they wish to do in part.