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High Court injunction stops committee from hearing village green application

A landowner has secured an injunction preventing a county council – in its role as a commons registration authority – from convening a committee of its councillors to hear an application to register land as a village green.

In August 2013 Paul Ashton applied to Powys County Council to register land known as Cae Prior Field, Brecon.

The land, owned by Adelaide Fellowes, had been included in the Brecon Beacons National Park’s Local Development Plan.

Ashton, who lives adjacent to the land in question, is also a councillor for Powys’ Brecon St Marys Ward.

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Fellowes, advised by Edward Harris Solicitor, launched legal proceedings for judicial review over the county council’s decision in January this year to refuse to appoint an independent inspector to hold a non-statutory public inquiry into the application.

Powys instead intended to convene its Planning, Taxi-Licensing and Rights of Way Committee to hear witness evidence and submissions of law on 16-17 April.

The council maintained that it would follow its policy of holding a committee hearing because it was not under any duty to appoint an independent inspector and it held no legal interest in the land.

Powys also said that the committee had considered planning applications submitted by fellow councillors in the past, and its members had received appropriate training and were aware of the requirements of its code of conduct.

Fellowes’ grounds of challenge are that Powys’ decision:

  • Was Wednesbury unreasonable/irrational;
  • Unlawful in that the council had misunderstood and/or not applied correctly or at all the principles of the common law that require an inspector to chair a public inquiry in circumstances where there is a serious dispute of law and/or fact;
  • Amounted to a procedurally improper/unfair approach.

She was granted permission to bring her judicial review claim by the High Court earlier this month.

The judge pointed amongst other things to the Court of Appeal ruling in Whitmey v The Commons Commissioners [2004], which strongly suggested that where an authority is intending to take a decision on a matter such as this where there is a serious dispute then fairness and reasonableness indicated that some form of expert independent assistance should be obtained.

The case fitted prima facie within the category of cases where the principles set out in Whitmey applied, the judge added, directing that the substantive claim should be heard in Wales.

Fellowes subsequently secured an injunction from Mr Justice Jay when Powys looked set to proceed with the two-day committee hearing.

The committee hearing can now only be held until after the determination of the substantive application, or further order.

Mr Justice Jay found that the claimant, Mrs Fellowes, had established that she had a good, arguable case.

“The decision of the Court of Appeal in Whitmey cannot be brushed to one side as the defendant seeks to do,” he said. “Aside from the apparent difficulty of this case, the position of the interested party [Cllr Ashton] should arguably have been considered.”

Edward Harris told Local Government Lawyer that the land would be worth significantly more if it was developed, rather than registered as a village green.

A request for comment has been made to Powys County Council.

Cllr Ashton told the BBC: "The problem has arisen because although I applied for village green status as a local resident and not as a councillor, it is Powys council who decide the application.

"I realise there is a conflict of interest but I have followed the code of conduct."

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