Borough defeats High Court challenge to refusal to register land as village green

Wokingham Borough Council has successfully defended a High Court challenge to its decision to refuse to register land as a new town or village green.

The background to the case of Forbes v Wokingham Borough Council [2018] EWHC 2530 (Admin) was that the claimant had applied to the council as commons registration authority on 8 June 2015 for the land concerned to be registered as a TVG.

Wokingham consulted on the application and Monopro, the owner of the land and subsequently the interested party in the case, objected.

The council instructed a barrister inspector, Felicity Thomas, to conduct a non-statutory inquiry, which sat from 12-20 December 2016. Her report, running to 302 paragraphs, was issued on 18 September 2017 and recommended that Wokingham reject the application.

The reason was that she found that the claimant had failed to show that it was more likely than not that there had been lawful sports and pastimes on the land of the required quantity and quality for the relevant 20-year period.

On 28 March 2018 the council held a public meeting, at which representations were made both in support of and objection to the application. Issues were raised by members of its commons registration committee and answered.

After the public meeting, the committee made its decision in private, and notified it in writing. It refused the application. The record of the decision indicated that the committee considered all the submissions, the inspector's two reports and all the other documents referred to in the officer's report and made its decision on the basis that it would endorse the Inspector's conclusion.

The claimant raised four grounds of challenge:

1. Wokingham erred in not holding the whole of its decision-making process in public.
2. In reaching her conclusion the inspector failed to consider the activities she had identified cumulatively and in total in reaching her conclusion on whether a substantial number of inhabitants had indulged in them.
3. The inspector excluded from her consideration certain activities as lawful sports and pastimes when she should in law have included them.
4. The decision did not give sufficient or intelligible reasons, particularly in relation to the claimant's suggestion that the defendant should not adopt or follow the inspector's conclusion.

Mr C.M.G Ockelton, vice president of the Upper Tribunal and sitting as a Deputy High Court judge, dismissed the claim.

On the first ground the claimant relied on section 100A(1) of the Local Government Act 1972, which provides as follows: "(1) A meeting of a principal council shall be open to the public except to the extent that they are excluded (whether during the whole or part of the proceedings) under section (2) below or by resolution under subsection (4) below."

The judge said: “It is of course clear, as [counsel for the claimant] points out, that the Council's own constitution could not override obligations imposed by statute. It follows that if the statute required what was done in private to be done in public, the Council would have erred in law by following its Constitution and doing it in private.

“The claimant's problem is that there does not appear to be any foundation for such an argument. The position is that there is no statutory procedure for the determination for an application of this sort. It follows that a Council is entitled to adopt any procedure which it thinks appropriate, subject only to any relevant requirements of legality and fairness.”

Judge Ockelton added: “It is clear that the procedure adopted and published by the Council gives every proper opportunity for public input into a decision. It is for the Council to determine the extent to which the proceedings take place at a "meeting". Part 8.8 of the Constitution sets that out with clarity. If there is a meeting it is held in public: that follows from the provisions of paragraph 8.8.3. It follows also that, under the Council's procedure, the process of decision-making, which is specified as taking place in private, is not a "meeting". In the absence of any provisions casting any doubt of the lawfulness of those arrangements, that, as it seems to me, is the end of the claimant's case under this head.”

He also rejected the other three grounds of challenge.