Vivian Chapman QC successfully acted for Somerford Parish Council in the case of R (Somerford Parish Council) v Cheshire East Borough Council [2016] EWHC 619 (Admin).

Judgment in the case of Somerford Parish Council v Cheshire East Borough Council & Richborough Estates Limited [2016] EWHC 619 (Admin) was handed down on 21st March 2016. The case deals with some important procedural issues arising when a commons registration authority (CRA) has to decide whether to accept or reject an application to register land as a new town or village green (TVG), especially where the CRA itself has an interest in the success or failure of the application.

The facts

Richborough Estates Limited (Richborough) wished to develop land surrounded by a triangle of public roads. Access to the proposed development was over unusually wide verges alongside two of the roads. Mr Bell applied to Cheshire East Borough Council (CEBC) as CRA to register the verges as a new TVG under Commons Act 2006 s. 15 on the ground that they had been used as of right for recreation by local people for more than 20 years. If registered as a new TVG, Richborough’s development project would be impeded because of statutory restrictions on the development of a TVG.

Both CEBC and Richborough lodged formal objections to the application, principally on the ground that the verges were part of the public highway and that recreational use of a highway was “by right” and not “as of right” because the public had a right to use a highway for recreation: DPP v Jones [1999] 2 AC 240.

CEBC is not a pioneer authority to which the Commons Registration (England) Regulations 2014 apply. The 2014 Regulations require reference to the Planning Inspectorate of a TVG application in which the CRA has an interest. Procedure in Cheshire East is governed by the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007, which do not contain any similar provision. CEBC instructed counsel in private practice as an “independent legal expert” to consider the application and advise. Counsel laid down a timetable for the parties to lodge evidence and written submissions. Mr Bell complied with the timetable but CEBC lodged a body of further evidence out of time and after Mr Bell had lodged his submissions. Counsel did not invite Mr Bell to comment on the further evidence and proceeded to write an opinion advising CEBC to reject the application on paper consideration without a public inquiry. CEBC then resolved to reject the application.

Somerford Parish Council (SPC) applied to the High Court for judicial review (JR) of the decision of CEBC to reject the application. No objection was made to SPC’s standing to bring JR proceedings. The JR application was on four grounds:

• First, CEBC acted in breach of the rules of natural justice by acting as judge in its own cause.
• Second, counsel was not “independent”.
• Third, counsel should have given Mr Bell an opportunity to deal with the late evidence submitted by CEBC before he advised.
• Fourth, counsel should have held a public inquiry before advising.

Ground 1: Judge in own cause

CEBC had an interest in the outcome of the application because:

It was an objector who had submitted evidence and submissions in opposition to the application.
It claimed to be owner of the top spit of the verges under Highways Act 1980.
It stood to receive £1m from Richborough in infrastructure and other contributions under a s. 106 agreement.
SPC argued that it was a fundamental rule of natural justice that a person should not act as judge in his own cause. CEBC should have entrusted the determination of the application to another local authority under Local Government Act 1972 s. 101.

The judge rejected this argument and held that, where the 2007 Regulations apply, it is an appropriate mechanism for a CRA which has an interest in the application to appoint an independent legal expert to conduct a non-statutory inquiry and make findings provided that the CRA acts on the advice of the independent legal expert. He followed an obiter dictum of Arden LJ in para. 32 of R v Commons Commissioners v Whitmey [2005] QB 282

Ground 2: Was expert “independent”?

The judge rejected an argument that counsel was not “independent” because he was paid by CEBC.

SPC also took the point that CEBC refused to disclose their instructions to and communications with counsel on the ground that they were privileged. It was therefore impossible to tell whether counsel was given impartial and correct information by CEBC. The judge, in the course of argument, expressed the view that this material could not be privileged because it was part of a quasi-judicial process. CEBC then disclosed this material, which proved to be innocuous. The non-disclosure point therefore fell away.

However, it does seem that, if a CRA instructs counsel to advise on a TVG application, it should assume that instructions to and communications with counsel are not privileged and are liable to be disclosed to the TVG applicant.

Ground 3: Should counsel have admitted late evidence from CEBC without giving Mr Bell an opportunity to deal with it?

The judge held that counsel had relied on the late evidence and that it was procedurally unfair that counsel should have proceeded to advise without giving Mr Bell an opportunity to deal with it.

The judge quashed the decision of CEBC on this ground.

Ground 4: Should counsel have held a public inquiry?

The judge held that there were disputed issues of fact on the question whether the verges were part of the public highway and that counsel should have held a public inquiry to investigate them. He relied on statements to that effect in Whitmey.

The judge quashed the decision of CEBC on this ground also.

Procedural lessons

It appears that there are three procedural lessons to be drawn from the Somerford case:

First, a non-pioneer CRA can determine a TVG application in which the CRA has an interest provided that it instructs an independent legal expert to advise and acts on that advice.
Second, a CRA should assume that all instructions to and communications with the independent expert will be subject to disclosure.
Third, in any case where there is a material dispute of fact, a public inquiry should be held.

Costs

It was common ground that the Somerford claim was an Aarhus Convention claim, i.e. broadly speaking environmental litigation. Under CPR 45.43 and 45PD 5.2 a losing defendant in an Aarhus claim may not be ordered to pay costs exceeding £35,000. The judge thought that SPC ought to forfeit 10% of its costs because it lost on Grounds 1 and 2. SPC’s actual costs were £48,000. Should the 10% be deducted from £48,000 or £35,000? The judge thought that the 10% should be deducted from £48,000 and ordered CEBC to pay costs of £35,000.

It therefore appears that in an Aarhus Convention claim, costs are calculated on the basis of the actual figures and then, if they exceed £35,000, they are capped at £35,000. £35,000 is not the starting point for calculating an award of costs in such a claim.