R (on the application of Whitmey) v Commons Commissioners

Registration of village green — Procedure — Objection to registration — Whether reference to commons commissioners required — Whether registration authority having jurisdiction to determine disputed application — Appeal dismissed One of the interested parties applied to the registration authority to register certain land as a village green under section 13 of the Commons Registration Act 1965. The appellant was a trustee of the body that owned the land. The appellant sought to have the application referred to a commons commissioner, but the commissioners took the view that they had no jurisdiction to consider disputed applications under section 13. Registration of greens under the 1965 Act had initially been pursuant to section 4, which provided for provisional registration of greens within three years of the Act coming into force. That period had expired in 1970. Thereafter, there was provision, under section 13, to amend the register of greens. In the case of a section 4 registration, sections 5 and 6 laid down a procedure for the receipt of objections, and provided that where objections were received, the registration authority should refer the question of registration to a commons commissioner. By section 5(7), an objection to the registration of “any land” as a green was also to be treated as “an objection to any registration (whenever made) under section 4 of this Act of any rights over the land”. Section 13 made no reference to objections to amendments to the register. The appellant was refused permission to bring judicial review proceedings to challenge the commissioners’ decision. On appeal against that decision, he contended that: (i) any application to amend the register under section 13 had to relate back to an entry made before 1970; (ii) the effect of section 5(7) was to trigger a compulsory reference to a commons commissioner where objections were made on a section 13 application; and (iii) the registration authority had no jurisdiction to decide disputes because this would breach Article 6 of the European Convention on Human Rights. Held: The appeal was dismissed. 1. The 1965 Act did not limit the registration of greens to those that had been registered by 1970, which was the cut-off date for registering greens that were greens before that date. The Act contemplated that land could become a green after 1970; section 13 was concerned with that possibility and provided for the amendment of the register where any land became a town or village green. 2. Section 5(7) applied only to objections to the registration of land made under section 5, and did not apply to objections made under section 13. Accordingly, the commons commissioners had no jurisdiction in a dispute arising under that section. 3. A registration authority had the power to proceed to registration in the face of an objection. Where there was a dispute over whether land should be registered as a green, it could be resolved by: (i) an application to the court at any time for a declaration that a property was or was not a green; (ii) determination by the registration authority; or (iii) an application to the court following registration for rectification of the register under section 14(b) of the 1965 Act. In the event of a serious dispute, an authority making a determination should proceed only after receiving the report of an independent legal expert, which would have been made after the holding of a non-statutory inquiry. The holding of such an inquiry did not involve any breach of the applicant’s right of access to the court under Article 6 of the Convention, since it would not preclude a subsequent application to the court by way of judicial review: R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 PLR 76 applied. The appellant appeared in person on the first issue; Paul Greatorex (instructed by the Bar Pro Bono Unit) appeared for the appellant on the other issues; the respondent did not appear and was not represented; Jonathan Karas and Rupert Reed (instructed by the solicitor to the Department for the Environment, Food and Rural Affairs) appeared for an interested party, the Department for the Environment, Food and Rural Affairs; the other interested party did not appear and was not represented. Sally Dobson, barrister