Cornestone Barristers acts for local resident in successful village green application

Ashley Bowes has successfully represented a local resident, Mrs Flip Cargill, to register Leach Grove Woods, Leatherhead, Surrey as a new village green. Despite their Inspector William Webster having concluded that the land should not be registered, and an officer's recommendation that the Inspector's recommendation should be followed, Surrey County Council's Planning & Regulatory Committee resolved to accede to Mrs Cargill's application at its meeting on 23 September 2015.

The application, made under the provisions of section 15(3) of the Commons Act 2006, ("the 2006 Act") relied on a claim that the land had been used by inhabitants of either a locality or a neighbourhood within a locality for lawful sports and pastimes (LSP) for a period of at least 20 years ending in January 2013.

The NHS, who own the land, represented by Jonathan Clay of Cornerstone Barristers, contested the application on the grounds that:

• after July 1993 the land was comprised within a single freehold title which included the hospital site;
• in the discharge of their statutory health functions after July 1993, none of the foregoing NHS bodies had power to permit land to be used by the public for the purposes of lawful sports and pastimes;
• throughout the relevant qualifying period, both the land and the hospital site would have been held for the NHS functions of various NHS bodies;
• the claimed locality or claimed neighbourhood within a locality did not satisfy the tests required by the 2006 Act.

The Inspector for Surrey County Council had concluded that the claimed neighbourhood within the electoral ward locality did not comprise a "neighbourhood" under section 15 of the 2006 Act. He had also dismissed the alternative argument that a polling district amounted to a "locality" under the Act. Accordingly, the Inspector recommended that the registration authority should reject the application on the grounds that the applicant had failed to satisfy all the requirements necessary for the land to be registered as a TVG and the Council's Registration Officer advised Members to follow that recommendation.

However, following further submissions from the Applicant and the Objector on the question of "neighbourhood", the Council's Planning & Regulatory Committee resolved to accept the application, stating simply that they had taken the view that the claimed neighbourhood did satisfy the requirements under the Commons Act 2006.

Although the ultimate issue was a narrow one, the application generated an interesting discussion within the Inspector's Report as to the application of the doctrine of statutory incompatibility following the Supreme Court's decision in R(Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7.

Click here to read the Inspector's report and recommendation in full.