The case concerns claims under s15 Commons Act (2006) for town and village greens and the scope for applicants to amend a defective application under Regulation 5(4) of the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 (‘the 2007 Regulations’), so that it is duly made. This can be crucial (as in this case) in determining whether an application has been made within the period of grace allowable under the Commons Act, or is effectively time barred.
The Administrative Court roundly rejected the argument that, in determining whether an application for a town or village green has been duly made, an applicant is necessarily afforded only one reasonable opportunity to take action to remedy defects in that application.
In July 2015 Mr Davies applied (using Form 44) for a village green under s15(2) Commons Act (2006).
The Council initially returned the application on the basis of insufficient evidence (too few user evidence forms). Mr Davies remedied this supposed defect and the Form 44 was at that point duly stamped by the Council with an October 2015 date.
In March 2016 the application was advertised and the College sent a copy of the relevant notice. In May 2016, the College lodged a formal objection statement, identifying 3 defects in the application (a lack of an OS map, duly signed as an exhibit to the relevant statutory declaration, and that the application was purported to be made under s15(2) of the Commons Act when it should have been s15(3)). The College also raised in its particulars that the application was not duly made as no locality had been identified by the Applicant. The College agreed that the Applicant should be afforded a reasonable period in which to correct the application.
In May 2016, the Council wrote to the applicant, with a copy of the College’s objection, advising him of the 3 details that needed correcting but not raising the locality issue set out in the particulars.
On 21st July Mr Davies returned the application addressing the 3 defects.
The Council wrote to the College and Mr Davies in August 2016, stating that the application was not duly made as the applicant had not specified that he was claiming a neighbourhood within a locality but that it was fair and reasonable to allow the applicant to amend the application form (by 2nd September); Mr Davies returned an amended form on 30th August 2016.
The College argued that the Council had no jurisdiction to allow this further opportunity to correct the neighbourhood/locality issue. As such, the application had not been duly made.
Legal framework and guidance
The application was made under s15 Commons Act (2006). S15(1) which provides that any person may apply for registration of a green where subsections (2), (3) or (4) apply.
A significant number of the inhabitants of any locality or neighbourhood within a locality have to have indulged as of right in lawful sports and pastimes for at least 20 years and continued to do so up to the application date (s15(2)) or the application is made within the relevant period after cessation of such use (s15(3) – i.e. in England within a year). S15(4) was not relevant in this case.
Regulation 5(4) of the 2007 Regulations provides:
“(4) Where an application appears to the registration authority after preliminary consideration not to be duly made, the authority may reject it without complying with paragraph (1) [notification and advertising of the application], but where it appears to the authority that any action by the applicant might put the application in order, the authority must not reject the application under this paragraph without first giving the applicant a reasonable opportunity of taking that action.”
Where action to rectify a not duly made application is successfully taken by the applicant under regulation 5(4), the corrected version has retrospective effect. The reasonable opportunity provided involves only a relatively short period of time (Church Commissioners for England v Hampshire County Council  EWCA Civ 634).
The present case concerned interpretation of regulation 5(4). The College argued that:
- where it appears to a registration authority (the Council) that an application has not been duly made, an applicant has one reasonable opportunity to take the action which it appears to the authority might put the application in order.
- The authority must comprehensively identify the action an applicant must take to put the application in order and specify a short period of time for the applicant to correct the identified defects.
- In the event that the authority fails correctly to identify all the action required to put the application in order, it cannot later be allowed to say that there should be another opportunity.
The argument for this approach was based on the wording of regulation 5(4) and the underlying legal policy.
The court roundly rejected the College’s interpretation of regulation 5(4); it did not accord with the underlying legal policy, was contrary to its language and was unrealistic as a matter of practice. There was nothing in the language to suggest that the applicant can be afforded only one opportunity to remedy a not duly made application. Regulation 5(4) would have undesirable consequences if it were to be read in this way.
Comment – applications for town and village greens
The case continues on from the Court of Appeal’s decision in the Church Commissioners case in clarifying the correct practice when dealing with applications for town and village greens which can be summarised as follows:
A registration authority should stamp an application when first received not when it believes the application has been duly made.
A registration authority should without delay properly scrutinise every application it receives in order to determine whether the requirements of regulations 3 (the format of the application) and 10 (the requirements to identify the relevant land) have been complied with, if necessary taking legal advice.
An authority should not reject an application as not duly made on the basis of evidence. User evidence goes to the merits of an application to be considered pursuant to regulation 6 of the 2007 Regulations.
In the case of defects in an application that can be remedied, the applicant must be afforded a reasonable opportunity to do so. This should only be a relatively short period;
An applicant is not necessarily restricted to only one opportunity to correct defects in an application.
If defects in an application are remedied and the application is duly made, the application takes effect from the original date of filing not the date the corrected version is filed.
With regard to whether an applicant can make unilateral amendments to the application, or the power of correction lies solely at the initiative of the registration authority, the court made no formal finding as this was not relevant on the facts. However, the court was clearly sympathetic to the argument that such amendments should be allowed where unfairness would not arise.
Counsel in the case suggested amendments to the relevant DEFRA publication “Section 15 Commons Act 2006 Guidance notes for the completion of an application for the registration of land as a town or village green..”. It would be advisable for applicants, registration authorities and landowners to take note of these suggested amendments.