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The court of appeal has ruled that Hampshire County Council cannot consider an application by Barbara Guthrie to register land known as Bushfield Camp, at Winchester in Hampshire, as a town or village green.
Mrs Guthrie had applied to register the land as a green on the basis of 20 years’ use by local people for lawful sports and pastimes, without interruption or challenge. The use had ended in July 2003 when the landowner, the Church Commissioners, erected a fence. The application had to be made within five years of the challenge, and Mrs Guthrie applied on 30 June 2008. It was defective and it was not until 20 July 2009, 13 months after the five-year limitation period had ended, that Hampshire County Council accepted the application as duly made.
The Church Commissioners appealed to the high court for a ruling that the application was not duly made within the allotted time and should be dismissed. This was rejected by Mr Justice Collins with leave to appeal.
There were two parts to the appeal, whether an application could be corrected retrospectively, and the definition of ‘reasonable opportunity’ in the regulations* for the time allowed for making corrections.
On the first point, the court upheld the high court judgment and refused an appeal on the retrospectivity point. We welcome this, as most applicants do not have legal help when making an application. The court confirmed that applicants are allowed to correct defects, as required in regulations, and the date of the application is the date when the application is originally received and receipted by a council. This is particularly important because in England even speculative planning applications prohibit village green applications from being made and there is a time limit of only one year to make applications where there has been a challenge to use or a landowner statement has been filed. In Wales the time limit is two years.
The court, by a majority of two judges to one, found that the council had exceeded the ‘reasonable opportunity’ period, prescribed in regulations, to allow applicants to correct errors in an application. They said that the 13 months it had taken the applicant to deal with the errors as communicated to her by the council had gone beyond the limit of what was reasonable. However the dissenting judge, Lord Justice Vos, said that he would have dismissed the appeal, as in his opinion it was for the council alone, as registration authority, to decide the question of what period of time should be allowed.
The Church Commissioners, who own the land, intend to develop it.
*Regulation 5(4), The Commons ( Registration of Town or Village Greens) ( Interim Arrangements) (England ) Regulations 2007 ( 2007 SI no 457).