Parish council wins legal challenge over refusal to register land as village green

The case of Somerford Parish Council v Cheshire East Borough Council & Anor [2016] EWHC 619 (Admin) centred on land in Somerford. The interested party, Richborough Estates, had put forward development plans for adjoining land which would have been impeded if the TVG application had succeeded.

On 16 March 2015 Cheshire East decided to reject the application for registration. This was taken in reliance on an opinion issued by an independent legal expert (James Marwick).

The parish council put forward four procedural challenges. These were:

(i) Did the defendant (Cheshire East) act in breach of the rule of natural justice that no one should be judge in their own cause?

(ii) If the defendant was entitled to act on the advice of an independent legal expert, was Mr Marwick such an expert?

(iii) Was Mr Marwick's advice vitiated by procedural error by allowing the defendant to put in evidence opposing the TVG application out of time and not giving Mr Bell [the applicant] the opportunity to comment on the late evidence before giving his opinion?

(iv) Was the decision of the defendant procedurally erroneous in that Mr Marwick did not hold a public inquiry to find facts?

A central issue was whether the TVG application land was part of the highway. If it was, Mr Marwick was in the circumstances of the case entitled to find that it could not be registerable as a TVG. This was because the use could properly be found as a use by right, not a use as of right.

Mr Justice Stewart concluded that grounds 1 and 2 of the challenge failed, but grounds 3 and 4 succeeded.

In relation to ground 3, the judge said it seemed to him to be clear that:

• Mr Marwick did in fact rely upon the additional evidence filed late by Cheshire East;
• That he was wrong to describe the disclosure as "relatively incontrovertible documentary evidence";
• The question was whether, having regard to the other evidence relied upon by the defendant, it could be safely said that it was "highly likely that the outcome for the applicant would not have been substantially different" if Mr Bell had had the opportunity to put in further representations; alternatively whether in those circumstances Mr Marwick should have advised a public inquiry and the defendant should have held one.

Mr Justice Stewart ruled that there were inconsistencies in the late email evidence on which Mr Marwick had relied in coming to his conclusion that the highway verge had been maintained by the highway authority at all material times.

In conjunction with other points, it lead the judge to refuse to accept that the high threshold of section 31 of the Senior Courts Act 1981 [denial of relief where the outcome would not have been substantially different] had been satisfied in relation to upholding Mr Marwick’s finding that the verges were highway land.

On ground 4, meanwhile, Mr Justice Stewart said: “Having considered in detail the further representations made by Mr Chapman QC [counsel for Somerford Parish Council] in relation to the issue as to whether the application land was a highway, Mr Marwick, had he had the benefit of those representations, could and should have concluded that a public inquiry was necessary to determine the issues. There were sufficient disputes of factual issues raised to require this to be done.”

The judge quashed Cheshire East’s decision of 16 March 2015.