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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> NHS Property Services Ltd, R (on the application of) v Surrey County Council & Anor  EWHC 1715 (Admin) (13 July 2016)
Cite as:  EWHC 1715 (Admin),  WLR(D) 397,  4 WLR 130,  4 WLR 128
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
NHS PROPERTY SERVICES LIMITED
|- and -
|SURREY COUNTY COUNCIL
Douglas Edwards QC and Katherine Barnes (instructed by Joanna Mortimer, Principal Solicitor, Surrey County Council) for the Defendant
Dr Ashley Bowes (instructed via Direct Access) for the Interested Party
Hearing dates: 14th-16th June 2016
Crown Copyright ©
MR JUSTICE GILBART :
|CA 2006||Commons Act 2006|
|C(RTV)Regs 2007||Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007|
|CR(E)Regs 2014||Commons Registration (England) Regulations 2014|
|ECHR||Convention for the Protection of Human Rights and Fundamental Freedoms (as set out in Human Rights Act 1998 Schedule 1)|
|NHSPS||NHS Property Services Limited|
|SCC||Surrey County Council|
|PCT||Primary Care Trust|
|IR||Inspector's Report and Recommendations|
"a significant number of the inhabitants of any locality, or neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years."
(1) was SCC under a duty to give reasons for its decision?
(2) if so, what standard of reasoning was required?
(3) did SCC give adequate reasons for finding that the criteria were met?
(4) was the finding that there was a "neighbourhood" one which SCC could reasonably make?
(5) given the absence of any consideration or reasoning relating to the question of statutory incompatibility, has SCC shown that there was no basis for concluding that there was statutory incompatibility?
(6) was the conduct by SCC of the meeting which considered the issue fair to the Claimant NHSPS?
(a) An overview of the system of registration;
(b) The land in question and its ownership;
(c) The "locality" and "neighbourhood within a locality" arguments;
(d) The respective cases at inquiry;
(e) The inquiry and the Inspector's Report and Recommendations (IR);
(f) SCC's consideration of the Inspector's Report and the decision to register the land;
(g) The case for NHSPS;
(h) The cases for SCC and the Interested Party;
(l ) Permission to appeal
(a) An overview of the system of registration
"15 Registration of greens
Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies.
(3) This subsection applies where
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the time of the application but after the commencement of this section; and
(c) the application is made within the relevant period."
" . apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green"
(per Lord Neuberger and Lord Hodge in Newhaven at ).
(b) The land in question and its ownership
"(1) Without prejudice to his powers apart from this subsection, the Secretary of State shall have power
(a) to provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by the Health Service Acts; and
(b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.
(2) It shall be the duty of the Secretary of State to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements.
(a) hospital accommodation;
(b) other accommodation for the purpose of any service provided under the Health Service Acts;
(c) medical, dental, nursing and ambulance services;
(d) such other facilities for the care of expectant and nursing mothers and young children as he considers are appropriate as part of the health service;
(e) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service in place of arrangements of a kind which immediately before the passing of this Act it was the function of local health authorities to make in pursuance of section 12 of the Health Services and Public Health Act 1968;
(f) such other services as are required for the diagnosis and treatment of illness; and regulations may provide for the making and recovery of charges in respect of facilities designated by the regulations as facilities provided in pursuance of paragraph (d) or (e) of this subsection."
"The Secretary of State may use, for the purposes of any of the functions conferred on him by the Health Service Acts, any property belonging to him by virtue of any of those Acts."
"1 Secretary of State's duty as to health service
(1) It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement
(a) in the physical and mental health of the people of those countries, and
(b) in the prevention, diagnosis and treatment of illness,
and for that purpose to provide or secure the effective provision of services in accordance with this Act.
Without prejudice to the Secretary of State's powers apart from this section, he has power
(a) to provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act; and
(b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.
It is the Secretary of State's duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements
(a) hospital accommodation;
(b) other accommodation for the purpose of any service provided under this Act;
(c) medical, dental, nursing and ambulance services;
(d) such other facilities for the care of expectant and nursing mothers and young children as he considers are appropriate as part of the health service;
(e) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service;
(f) such other services as are required for the diagnosis and treatment of illness."
87 Acquisition, use and maintenance of property.
(1) The Secretary of State may acquire
(a) any land, either by agreement or compulsorily,
(b) any other property,
required by him for the purposes of this Act; and (without prejudice to the generality of paragraph (a) above) land may be so acquired to provide residential accommodation for persons employed for any of those purposes.
(2) The Secretary of State may use for the purposes of any of the functions conferred on him by this Act any property belonging to him by virtue of this Act, and he has power to maintain all such property."
(It is also important to note the terms of that Act after the passage of the Health Care Act 1999 (which established PCTs) and the National Health Service Reform and Health Care Professions Act 2002, whose terms are dealt with below.)
"5 NHS trusts
(1) Subject to subsection (2) or, as the case may be, subsection (3) below the Secretary of State may by order establish bodies, to be known as National Health Service trusts (in this Act referred to as NHS trusts),
(a) to assume responsibility, in accordance with this Act, for the ownership and management of hospitals or other establishments or facilities which were previously managed or provided by Regional, District or Special Health Authorities; or
(b) to provide and manage hospitals or other establishments or facilities."
(Under the predecessor legislation, there were Regional and Area Health Authorities, which would carry out the functions of the Secretary of State on his directions (see 1977 Act ss 8, 13.)
"The Secretary of State may by order transfer or provide for the transfer to an NHS trust, with effect from such date as may be specified in the order, of such of the property, rights and liabilities of a health authority or of the Secretary of State as, in his opinion, need to be transferred to the trust for the purpose of enabling it to carry out its functions."
(2) "The trust's functions (which include functions which the Secretary of State considers appropriate in relation to the provision of services by the trust for one or more health authorities) shall be
(a) to own and manage hospital accommodation and services at the Epsom District Hospital" (address given) "and associated hospitals;
(b) to manage community health services provided from Epsom District Hospital" (address given) "and to own the premises there from which those services are to be provided and any associated premises.
"(3) A Primary Care Trust shall be established for the area specified in its PCT order and shall exercise its functions in accordance with any prohibitions or restrictions in the order."
Schedule 5A was also inserted into the 1977 act by the 2002 Act. It defines the powers of a PCT as follows in Part III:
"Powers and Duties
"12(1) A Primary Care Trust may do anything which appears to it to be necessary or expedient for the purpose of or in connection with the exercise of its functions.
(2) That includes, in particular
(a) acquiring and disposing of land and other property,
(b) entering into contracts,
(c) accepting gifts of money, land and other property, including
money, land or other property held on trust, either for the general
or any specific purposes of the Primary Care Trust or for all or
any purposes relating to the health service."
"Each clinical commissioning group has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act"
"The Secretary of State, the Board or a clinical commissioning group may do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any function conferred on that person by this Act."
"20 The power conferred on a clinical commissioning group by section 2 includes, in particular, power to
(1) enter into agreements,
(2) acquire and dispose of property, and
(3) accept gifts (including property to be held on trust for the purposes of the clinical commissioning group)."
(1) "The Secretary of State may form, or participate in forming, companies to provide facilities or services to persons or bodies exercising functions, or otherwise providing services, under this Act."
(c) The "locality" and "neighbourhood within a locality" arguments
"Locality or neighbourhood within a locality in respect of which the application is made"
to which she gave the answer
"South Leatherhead Neighbourhood based on polling districts Leatherhead South 1 and 2 lying within South Leatherhead Ward"
while in answer to Box 7, which sought justification for the application, she stated that the land at Leach Grove Wood had been:
"used as of right by a significant number of the inhabitants of the South Leatherhead neighbourhood within the South Leatherhead ward on the Mole Valley District Council "
"The Applicant advanced her case on two alternative propositions. Either, a significant number of users come from the locality of the Polling District XB or they come from the neighbourhood bounded by the roads B 2122, A 24, B 2033 within the locality of Leatherhead South Ward of Mole Valley District Council."
(b) the Polling District XB. That abuts the northern boundary of the ward, but its NW to NE boundary runs south along Linden Pit Path and Linden Gardens (which lie south of the boundary line marked on the original application). Its eastern boundary is formed by the A 243 north of the junction with A 24, and then the A 24 southwards until the junction with Headley Road. The polling district boundary then turned westwards along Headley Road and then Highlands Road until it reached Church Road to the west, where it turned north, skirted the eastern side of the Town centre via Church Street and Linden Road and reached St Johns Avenue and followed the boundary described above north eastwards.
(c) The ward contains all of that polling district, and much more as well. It extends as far east as the M 25 motorway, which runs from NW to SE to the NE side of the Town centre, but also includes land to the south and west of the built up area;
(d) The neighbourhood boundary relied on is coincident with the extent of the polling district boundary, except that
(i) it extends further west so as to include the small area bounded by the B 2122 and B 2250 south of the shopping centre, and
(ii) it excludes the area in the polling district north of Epsom Road, which it follows eastwards from its junction with Church Street to the A 24 at the Knoll roundabout.
(d) The respective cases at inquiry
(a) The Applicant argued that:
(i) The polling district was a "locality", and a significant number of its inhabitants indulged as of right in lawful sports and pastimes on it for over 20 years;
(ii) Alternatively, the area described above at paragraph 35 (c) was a neighbourhood, which fell within a locality, which for this purpose was the electoral ward, and a significant number of its inhabitants indulged as of right in lawful sports and pastimes on it for over 20 years;
(iii) There was no statutory incompatibility preventing the land's registration;
(b) The Claimant argued that:
(i) The polling district was not a "locality;"
(ii) The area described above did not have the qualities of a "neighbourhood;"
(iii) The activities on the land did not amount to twenty years' user as of right for lawful sports and pastimes by significant numbers;
(iv) The purposes for which the land was held prevented registration.
a. rejected the polling district as constituting a "locality;"
b. rejected the Claimant's arguments about statutory incompatibility;
c. accepted the Applicant's case that a significant number of the local inhabitants of the claimed neighbourhood (as amended) and falling within the locality of Leatherhead South ward indulged as of right in lawful sports and pastimes on the whole of the land for the period of at least 20 years ending on or about 9th January 2013;
d. considered that it was not a neighbourhood for the purposes of s 15 CA 2006;
e. recommended that the application to register the land as a village green be rejected.
a. whether there were lawful sports and pastimes;
b. whether the number of users was significant;
c. whether the user took place for at least 20 years until 2013;
d. whether it was as of right.
a. whether the RA's determination that there was a "neighbourhood" for the purposes of the s 15 test was unlawful, whether on the basis that its reasons it gave for doing so were improper, and/or on the basis that it gave no adequate reasons for rejecting the IR's conclusions;
b. given the absence of any apparent consideration by the RA of the Claimant's case on statutory incompatibility, whether its decision was deficient unless the case on that topic was unarguable;
c. whether the RA's consideration of the application and objections thereto was fair.
(e) The inquiry and the Inspector's Report and Recommendations
"The claimed neighbourhood
114. I have been around the claimed neighbourhood and the surrounding areas, partly on foot as well as in the car. I have also revisited the area as a desk top exercise on Google Earth street view which is now an indispensable tool in these cases. I am confident that I have, for present purposes, seen enough of the claimed neighbourhood and the surrounding areas.
115. If one refers to App/1 one can see that we are dealing with a roughly triangular shaped area bounded by (running anti-clockwise) (a) Epsom Road (B2122) where it leaves the roundabout on the Leatherhead bypass; (b) The Crescent; (c) Church Street; and (d) Church Road until the road forks onto Highlands Road (B2033); and (e) thence into Headley Road until it meets the bypass. Dr Bowes clarified that the red line boundary is intended to be a mid-point in the affected carriageways.
116. Within the neighbourhood there are a number of community buildings/facilities which I have already identified in paragraph 85, in addition to the recreation ground at Fortyfoot Road and the Church Hall on the north side of Church Road, all of which are used by individuals from a much wider area.
117. For reasons which I do not understand, whereas the Church Hall lies within the claimed neighbourhood, the Parish Church of St Nicholas & St Mary, which is just across the road, falls just outside it. Nor are there any shops or convenience stores or the like within the claimed neighbourhood other than, within The Crescent, where one finds two takeaways, an opticians, a dental practice and a health shop of some description, all of which are bound to be frequented by people living within the town as a whole. The same applies in the case of the estate agents located on the corner of Church Street and Church Road. There is, for instance, no parade of shops which could be said to mainly serve the needs of an identifiable local community within the town of Leatherhead.
118. The land lies roughly in the middle of the claimed neighbourhood and is, I think, a cohesive feature, but possibly the only one within the claimed neighbourhood. I suspect that most people using the land, either as a place of transit or as a destination in itself for informal recreation, live in the nearby streets and would include many living in the streets to the south of Highlands Road which appear to me to comprise a number of separate developments of mainly detached dwellings, some of high value. The town of Leatherhead seems to be expanding in the gap between Highlands Roads and the bypass where there has been much residential development in recent years. One witness said that this was the 'posh area' of town.
119. The major features in the gap between the north of the land and the railway line are St John's School and its extensive grounds, the two sports grounds on either side of Garlands Road, the Catholic Church of Our Lady and St Peter and Trinity Primary School. On the north-west side of the land we have the town centre which is, I think, mainly pedestrianised and, on the west side, we have, downslope, the River Mole (dominated by a heavily wooded weir area mid-stream) and the Bridge Street crossing. I have to say that without a much closer examination of the central area of Leatherhead (perhaps with the assistance of expert evidence) I have found it very difficult indeed to identify separate neighbourhoods within the town (in other words, where the characteristics of one area distinguish it from surrounding areas) as the area as a whole contains a good deal of residential and other development of varying I ages and styles which are not specific to the claimed neighbourhood although, in light of the evidence I heard, I do not doubt that within it, or at least in parts of it, there is a local community spirit."
(a) Put shortly, the issue is whether land held for the statutory purposes of the NHS falls within the same category as land held by a statutory undertaker for the purposes of its operations such that, consistently with the decision in Newhaven, the land in this instance would not be registrable as a matter of law.
(b) I have set out the competing submissions of the parties on this issue at  and, having considered the matter carefully, I prefer those of the applicant under this head.
(c) I agree with the applicant that the fact that the application land forms part of the same freehold title as the hospital site should not mean that it must be treated as part of the working hospital site when, as a matter of fact, it plainly is not and never has been.
(d) I also agree with the applicant's submission that the objector's case on statutory interpretation would in practice emasculate the provisions of the 2006 Act when it came to land held by public bodies for specific statutory functions. This can hardly have been parliament's intention and support for what the applicant argues can clearly be found from what was said by Lord Neuberger at  in Newhaven:
'The ownership of land by a public body, such as a local authority, which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility. By contrast, in the present case the statutory harbour authority throughout the period of public user of the Beach held the Harbour land for the statutory harbour purposes and as part of a working harbour. '
(e) Dr Bowes rightly draws attention to what Lord Neuberger said at , namely that the doctrine was held to apply only to land that was acquired and held by a statutory undertaker (which does not apply in this instance) whose continuing use (because of the conflict between the applicable statutory regimes) would be inconsistent with its registration as a TVG. In Newhaven the operational land of the harbour (of which the beach formed part) was subject to statutory provisions which imposed on the undertaker a positive duty to maintain and support the operational land of the harbour which, in the event that works had to be executed in a way which affected the public's use of the beach were it registered as a TVG, there would be an obvious and irreconcilable clash as between the conflicting statutory regimes. The position of the NHS is quite different in that no positive duty (analogous to that imposed on the undertaker in Newhaven) arises on the part of the landowner to do anything in the case of the land (in contrast to Newhaven) and the general duty imposed on the Secretary of State to promote a comprehensive health service is wholly unaffected.
(f) It seems to me that it is irrelevant that the land may be held under the same title as the remainder of the hospital site. The fact that the relevant NHS bodies had (and still has) the capacity to use the land for health and ancillary purposes is no different to any other public body holding land for a purpose which they do not choose to exercise for the time being. As Dr Bowes says, in Barkas at  Lord Carnwath explained that land in public ownership is not outside the 2006 Act and to suggest that any land held for purposes inimical to TVG rights would be outside the 2006 Act would be absurd, not least as it might give rise to unnecessary speculation and debate about what the landowner's future intentions were for the land in contrast to the wholly proper analysis which, in my view, arises from Newhaven which focuses on the specific duty or duties which are imposed on a landowner (in its capacity as a statutory undertaker) with regard to its holding and management of the land which would clash with registration of the land as a TVG. As indicated, no such conflict impacts on the holding of the land in this instance in the performance of the statutory health functions of the NHS and those bodies through whom they are discharged.
(g) Nor do I accept either that the principle in Newhaven applies only to those public bodies which have no power to hold land for public recreation since it might mean in practice that all or most publicly held land is outside the 2006 Act. This is because land held for statutory purposes which embraces the principle in Barkas, or which otherwise entitle local inhabitants to use the land for recreation, would be nonqualifying, as would land held by public bodies with no powers to permit recreation such as might apply, for instance, in the case of land held for education. In my view, if registration was to have been avoided during the relevant qualifying period in this instance then the answer was permissive signage or making user contentious.
(h) I therefore take the view that the doctrine of statutory incompatibility has no application in this case.
(a) The term 'neighbourhood' is an ambiguous term. It may mean 'the vicinity' of a place or a person (see e.g. Stride v Martin  77 LT 600) but it may also refer to an area that is recognisable as having a degree of coherence such that people would recognise it as being separate or different from the areas immediately surrounding it. It is, in this sense, that the term 'neighbourhood' is used in the 2006 Act. It seems plain to me that a neighbourhood must be understood as meaning a cohesive area which is capable of meaningful description in some way. But beyond that it has no particular requirement, and whether the claimed neighbourhood is made out is a question of fact.
(b) In my view, it must, I think, be substantially a matter of impression whether the claimed area is a neighbourhood or not. My impression and my considered view having heard the evidence and visited the area, is that the claimed neighbourhood is not a neighbourhood within the meaning of the 2006 Act. Whilst it is correct that it is enclosed within busy, or relatively busy, roads, it did not seem to me that the character of the residential areas differed substantially or significantly from that within the adjoining areas.
(c) The residential properties comprised a mix of styles and ages and there was nothing in the way of facilities (that is, with the exception of the land itself) serving predominantly the claimed neighbourhood and none other. There are undoubtedly a number of community facilities located within the claimed neighbourhood but without exception these facilities serve (or rather served in the case of St Mary's Primary School) a much wider catchment. In these cases, one is always on the lookout for local shops or true community facilities such a small parade of shops with a post office, licensed premises, local schools, churches and the like, in other words, the sort of facilities that create a self-contained small community. It is the absence of those features which would indicate that one would need to see some other factor indicating cohesiveness but, with the exception of the land itself and perhaps the allotments as well, there is very really nothing beyond the fact that many of the applicant's witnesses, when asked to cast their mind to it, considered that their neighbourhood was simply the area in their own particular vicinity or where their friends mainly lived. I also think that most of the applicant's oral witnesses were unduly influenced by being presented with App/1 in their support of the claimed neighbourhood.
(d) It was also significant that a number of the applicant's witnesses took the view that the neighbourhood should in fact have been more extensive than claimed. In other words, there was no unanimity amongst the applicant's witnesses that App/1 was the true neighbourhood. See, for instance, the evidence of the applicant herself (who it seemed to me - as she herself accepted - did not really have a correct understanding of the terms neighbourhood and locality) and that of Sandra Sullivan, Julia Jarrett, Ken Ellis, Les Prescott, Heather Ward, Michael Brian and David Brett. For instance, more than one witness was puzzled as to why the church was not included within the claimed neighbourhood (whereas the church hall on the other side of the road was) which struck me as a bizarre omission. Indeed, it was the evidence of Imani Ayimba- Golding that she attended a Sunday club at the church hall in Church Road. Evidently they would all troop across the road to the church at the end of the morning service.
(e) Lastly, this neighbourhood had no name. That is not a necessary requirement, but if there is historical cohesiveness in respect of an area, one might expect it to have acquired some form of collective description.
(f) I have also borne in mind that when Parliament amended the Commons Registration Act 1965 to permit registrations to take place by reference to 'a neighbourhood within a locality' it intended to make it easier to register TVGs, and did so by allowing them to be registered by reference to a concept that was not precise either as to definition, or as to boundary (see Oxfordshire per Lord Hoffmann at ). However, notwithstanding this, my conclusion for the reasons I have set out above (i.e. because the area does not have sufficient individual cohesiveness or community identity) is that the claimed neighbourhood is not a 'neighbourhood' within the meaning of the 2006 Act.
(g) It seems to me that if Parliament had intended that a neighbourhood should be interpreted to mean the area in which the recreational users reside, then it would have said so. Moreover, whilst I accept that the bar is set low in the Leeds Group litigation, having been to the area in this case and heard the evidence, I take the view that, as a matter of fact and degree, the applicant has fallen well short of what is required to be proved in order to satisfy the neighbourhood element."
"178. Findings of fact and recommendation
(a) I find that a significant number of the local inhabitants of the claimed locality shown within the blue dashed lines on App/1 (being the polling district XB within the Leatherhead South ward of MVDC) indulged as of right in LSP on the whole of the land for the period of at least 20 years ending on or about 9/01/2013.
(b) I find that a significant number of the local inhabitants of the claimed neighbourhood shown within the red lines on Appl1 and falling within the locality of Leatherhead South ward also indulged as of right in LSP on the whole of the land for the period of at least 20 years ending on or about 9/01/2013.
(c) I find that the objection advanced by the objector that the land was not registrable on the ground of statutory incompatibility was not made out.
(d) I find that the claimed locality is not a locality within the meaning of section 15 of the 2006 Act.
(e) I find that the claimed neighbourhood is not a neighbourhood within the meaning of section 15 of the 2006 Act.
(f) Because the applicant has failed to satisfy all the elements necessary to justify the registration of the land as a TVG, my recommendation to the registration authority is that the application to register (under application number 1869) should be rejected.
(f ) SCC's consideration of the Inspector's Report and its decision to register the land
"20 Village Green status is acquired over land where a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years. The evidence provided with this application, and the subsequent investigations, show that this criteria" (sic) "has not been met.
21 Therefore, Officers recommend that the application be REJECTED. "
"On day three of the hearing of the above claim Mr. Justice Gilbart requested that the Defendant confirm whether the letter of Dr. Ashley Bowes dated 22 September 2015 (at Claim Bundle ("CB") p.338) and/or the letter of Messrs. Capsticks of 22 September 2015 (CB 348) were provided in paper copy to the Planning and Regulatory Committee at the meeting held on 23 September 2016.
We have now taken intructions with regards this matter. We are instructed that Dr. Bowes' letter was provided to the Committee in paper copy at the meeting; Capsticks' letter was not.
We are instructed that the reasons for this are as follows.
Dr. Bowes' letter was sent under an email of 21 September at 10:59 (CB 336), two days before the Committee meeting. It was sent to all members of the Planning and Regulatory Committee, together with Helen Gilbert, the Defendant's Commons Registration Officer and Claimant's solicitors Rachel Whale and Abi Condry of Capsticks. Dr. Bowes also sent an email to the Committee Clerks on 21 September 2015 at 11:15. In that latter email he requested that his letter be printed off and distributed to each Member at the meeting. Both Committee Clerks have now left the employment of the Defendant and their written records, which have been checked, do not confirm that Dr. Bowes letter was in fact distributed to the Committee. However, Mrs. Nancy El-Shatoury, a solicitor of the Defendant who attended the Committee, has been contacted by telephone whilst on leave and she has stated that she recalls that Dr. Bowes' letter was provided by the Committee Clerk in paper copy to members of the Committee.
Messrs. Capsticks' letter of 22 September 2015 was sent as an attachment to an email sent on 22 September 2015 at 15:30 (CB 341), the afternoon before the Committee meeting. It was sent to the same recipients as Dr. Bowes' email of 21 September 2015. As the Court was informed on day two of the hearing, the Defendant's electronic security system blocked the email and directed it to each recipient's "junk" box. No email was sent by Capsticks to the Committee Clerk or to any officer of the Defendant, other than Mrs. Gilbert. The Capsticks letter was not therefore retrieved by Mrs. Gilbert or any other officer before the Committee meeting, which took place the next morning so as to allow it to be distributed in paper copy.
Each member who was sent Capsicks' email of 22 September 2015 has been contacted to establish whether the email was received and read before the Committee meeting. Cllrs. Beardsmore, Sydney and Munro and Cllr Hall (who addressed the Committee as local member) have confirmed that they retrieved Capstick's letter from the "junk" box and read the letter before the Committee meeting. Cllrs. Essex, Taylor, Hicks, Mallett and Wilson did not retrieve the letter or do not recall reading the letter before the meeting. Cllrs. Cosser, Coleman and Johnson did not attend the meeting. The two substitute members who joined the Committee for the meeting Cllrs. Ivison and Jenkins were not copied into the Capstick's email and therefore did not receive Capstick's letter before the Committee meeting.
The information set out above extends somewhat beyond what is required in direct response to the Judge's question. However, we considered it appropriate to draw this information to the attention of the Judge nonetheless."
"The committee adjourned from 12. 15pm to 12.25pm for a short break. Upon reconvening the Chairman stood down from the committee and the Vice Chairman took the Chair.
31/15 APPLICATION FOR VILLAGE GREEN STATUS: LAND AT LEACH GROVE WOOD, LEATHERHEAD [Item 9]
Helen Gilbert, Commons Registration Officer
Stephen Jenkins, Deputy Planning and Development Team Manager Mark O'Hare, Senior Planning Officer
Nancy EI-Shatoury, Principal Lawyer
The Local Member, Tim Hall, registered to speak and made the following points in reference to the application:
- Expressed he knows the area well and the green space gets a lot of public use. .
- Expressed that an area does not need to have shops to be considered. _ a neighbourhood. It does have sheltered housing, a scout hut and other community facilities.
- The area is a cohesive community and has proved the green space is used
Commended the application for village green status to the committee.
Tim Hall then left the room at 12.28pm.
Key points raised during the discussion:
1. The Commons Registration Officer introduced the report and informed the Committee that a neighbourhood must have some coherence to be acknowledged. The officer's recommendation was to reject the application.
2. The Principal Lawyer explained that the Commons Act 2006 was specific about the criteria which need to be met in order for a piece of land to be granted Village Green status. However, the terms locality and neighbourhood are not defined. Case law has developed which must be considered when seeking to define the terms. The Inspector had found that there was little to differentiate the claimed neighbourhood from the surrounding area and little to suggest cohesiveness. The only appeal available to either side following the committee's decision would be Judicial Review.
3. Members felt that an area did not require a particular type of building to be considered a neighbourhood. It could be considered that way if residents wish it to be. It simply required a sense of place. It was pointed out that many recent developments were not built with shops but this should not mean that they could not become a neighbourhood or locality. Members queried whether the Inspector's judgement would result in other urban areas being rejected as neighbourhoods, with only rural areas being judged to have met the necessary criteria. Members highlighted that the plans indicated that there was an infant school, recreation ground, allotment and parking area within the claimed neighbourhood. The Chairman countered that different people will have different definitions of neighbourhoods and that the Inspector had used case law to come to his conclusion.
4. It was noted that the application had met all the other criteria set by the Commons Act 2006.
5. It was noted that the land owner would not be able to develop or sell the land if it were to gain village green status.
6. The Committee was informed that there was a recreation ground close to the proposed village green, it was noted that this did not affect the application under consideration.
Members rejected the officer recommendation to REJECT the application. It went on to APPROVE the application to register the land at Leach Grove Wood as a Village Green for the following reason:
Notwithstanding the Inspector's view, Members formed a different impression. Having considered all the evidence before them they came to the view that the criteria laid down by the Commons Act 2006 had been satisfied by the applicant."
"I'm very minded to agree with Ashley on this one I think he did speak to me some time back to say that he was going to present something in front of us."
(g) The case for NHSPS
(1) SCC failed to give adequate reasons for its decision that the area was a "neighbourhood;"
(2) the polling district could not be a locality, and a neighbourhood within it could not qualify as one under the Act;
(3) the members acted irrationally, misdirected themselves, and took into account immaterial considerations;
(4) the proceedings were unfair and in breach of Art 6 of ECHR because the Claimant's representations in response to the late representations by the Applicant were not considered by the Committee, and Dr Bowes was known to members;
(5) both the Committee and the Inspector erred in finding that registration is compatible with the powers and duties of the NHS for whose purposes the land is held.
(a) the Committee was under a duty to give reasons for its decision, both because of the nature and effect of the decision, which deprives a landowner of the ability to use his land in a way which is consistent with its use as a town or village green, and because in this case there was a strong adverse recommendation from the Inspector;
(b) the reasons given did not justify a conclusion that it was a "neighbourhood;"
(c) there was no finding that justified the test that it was a "neighbourhood within a locality;"
(d) the conduct of the proceedings was procedurally unfair. The Chairman was the local member, Dr Bowes was known to him and others, and the Claimant's case was not put before them;
(e) in any event the statutory purposes by and for which the land is held are incompatible with registration as a town or village green.
" .. I do not accept the defendant's submission that a neighbourhood is any area of land that an applicant for registration chooses to delineate upon a plan. The registration authority has to be satisfied that the area alleged to be a neighbourhood has a sufficient degree of cohesiveness, otherwise the word "neighbourhood" would be stripped of any real meaning. If Parliament had wished to enable the inhabitants of any area (as defined on a plan accompanying the application) to apply to register land as a village green, it would have said so."
and contended that that required precise boundaries and sufficient cohesiveness in its character or community. He argued that the Committee never addressed those concepts, and failed to have regard to material considerations. He pointed to the fact that different witnesses referred to different areas, which must call into question the idea that there was a readily identifiable cohesive neighbourhood.
a. both sets of representations should have been before the Committee;
b. there was too close a relationship between Dr Bowes and the Chairman of the Committee and members;
c. the objector should have had the opportunity to deal with the points raised by the Committee to justify registration.
(h) The cases for SCC and the Interested party
35......... The judgment of Sedley J in Institute of Dental Surgery" ( 1 WLR 242), "which in my respectful view contains, despite its relative age, still the best and most authoritative statement of the principles germane to the implication of a duty to give reasons. Rather than cite copiously from that decision, let me attempt the following summary:
(i) There are cases where the nature of the process itself, or the subject matter, calls in fairness for reasons to be given. Ex parte Doody" ( AC 531at 562C-D) "was such a case.
(ii) There are cases where "something peculiar to the decision", some form of apparent aberration, triggers a reasons duty. Ex parte Cunningham" (R v Civil Service Appeal Board, ex p Cunningham  4 All E R 310) "was such a case, because the Court could evaluate for itself the discrepancy between the compensation awarded to Mr Cunningham by the board, and the compensation he would have received in an Industrial Tribunal.
(iii) Category (ii) above does not include decisions which are challengeable by reference only to the reasons for them. If there are no reasons, ex hypothesi there can be no challenge; but the absence of reasons cannot logically be the basis for requiring them. Pure academic judgments fall within this class of decisions.
(iv) The classes of case where reasons are or may be required are not closed.
36 I should add that Sedley J's formulation of "something peculiar to the decision" was his interpretation of the judgments of the majority in the Court of Appeal (McCowan and Leggatt LJJ) in ex parte Cunningham. McCowan LJ accepted Counsel's choice of words "it cries out for some explanation from the board" - which is arguably more general. However, my reading of the majority view is that an explanation was called for because, without it, the decision was inexplicable."
(a) was SCC under a duty to give reasons for its decision?
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly ."
If it applies, it is now firmly established that there is a duty to give reasons; see the judgement of Lord Phillips MR in English v Emery Reimbold & Strick Ltd.  EWCA Civ 605  1 WLR 2409,  3 All ER 385. So the question is whether an application for registration determines the civil rights and obligations of the landowner of a piece of land which is the object of the application. It is to be noted that the decision to register a piece of land is not a matter where the RA has any discretion. If the criteria in the Act are met, then the registration must take place.
" [It] is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."
"My Lords, I can moreover arrive at the same conclusion by a different
and more familiar route, of which Ex parte Cunningham,  4 All E.R. 310 provides a recent example. It is not, as I understand it, questioned that the decision of the Home Secretary on the penal element is susceptible to judicial review. To mount an effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray. I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed. If there is any difference between the penal element recommended by the judge sand actually imposed by the Home Secretary, this reasoning is bound to include, either explicitly or implicitly, a reason why the Home Secretary has taken a different view."
(b) if so, what standard of reasoning was required?
"24 As already noted, three previous decisions of this House have considered the reasons requirement in a planning context. In this, the fourth, it is I hope convenient to start by assembling a number of the more authoritative and useful dicta from the many cases in the field. I begin with Megaw J's oft-cited judgment in In re Poyser and Mills' Arbitration  2 QB 467, 478:
"Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."
25 In Westminster" (Westminster City Council v Great Portland Estates plc  1 AC 661), "Lord Scarman at p 673 set out the above passage and continued:
"[Megaw J] added that there must be something 'substantially wrong or inadequate' in the reasons given.
In Edwin H Bradley & Sons Ltd v Secretary of State for the Environment (1982) 264 EG 926, 931 Glidewell J added a rider to what Megaw J had said: namely, that reasons can be briefly stated. I accept gladly the guidance given in these two cases."
At  Lord Brown also endorsed the passage in Bolton Metropolitan District Council v Secretary of State for the Environment (1995) 71 P & CR 309 per Lord Lloyd of Berwick at p 314-5, which includes the important principle that:
"What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the 'principal important controversial issues.'"
Re Poyser v Mills was not a planning case, but the others were. That is relevant because of the matters that appear below. However, the general standard to be attained is no different.
(a) whether the applicant for registration has shown that the criteria in s 15 CA 2006 have been met, and why the tests have been met or not as the case may be;
(b) in a case where an objection has been made on a ground known to law, whether that objection is or is not well founded, and why it was or was not well founded as the case may be.
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"decision letters such as the ones which are the subject of this appeal are to be considered on a "straightforward down-to-earth reading without excessive legalism or exegetical sophistication": Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P&CR 263 at page 272-3, per Sir Thomas Bingham MR), applied in, e.g. MR Dean & Sons (Edgware) v First Secretary of State  EWCA Civ 1083, at ." (That is also known as First Secretary of State & Anor v Sainsbury's Supermarkets Ltd  EWCA Civ 1083)."
I intend to apply those tests, remembering always that it was for the RA to determine the matter, and not the Inspector.
(c) Did SCC give adequate reasons for finding that the criteria were met?
(d) was the finding that there was a "neighbourhood" one which SCC could reasonably make?
(e) given the absence of any consideration or reasoning relating to the question of statutory incompatibility, has SCC shown that there was no basis for concluding that there was statutory incompatibility?
"(2A) The High Court
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
(2B) The court may disregard the requirements in subsection (2A) (a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied."
"whether, in any event, section 15 of the 2006 Act cannot be interpreted so as to enable registration of land as a town or village green if such registration was incompatible with some other statutory function to which the land was to be put." ()
They turned to the third issue at paragraph . At  they introduced the nature of the argument:
"Section 15 is in Part 1 of the 2006 Act, which extends to all land in England and Wales, with the exception of the New Forest, Epping Forest and the Forest of Dean (section 5), and land includes "land covered by water" (section 61(1)). There is no express exclusion of land held by statutory undertakers for statutory purposes. Therefore any restriction on the scope of section 15 would have to be implicit. NPP argues that statutory incompatibility provides that restriction. In support of its assertion NPP relies on case law in relation to public rights of way and private easements in English law and public rights of way and servitudes in Scots law."
"there are important differences between private easements over land and public rights over land and between the ways in which a public right of way can come into existence, and the ways in which a town or village green can come into existence. To apply principles applicable to one type of right to another type of right without taking account of their differences is dangerous."
"Statutory incompatibility: statutory construction
91 As we have said, the rules of prescriptive acquisition apply only by analogy because Parliament in legislating for the registration of town and village greens has chosen similar wording (indulging "as of right" in lawful sports and pastimes) in the 1965 and 2006 Acts. It is, none the less, significant in our view that historically in both English law and Scots law, albeit for different reasons, the passage of time would not give rise to prescriptive acquisition against a public authority, which had acquired land for specified statutory purposes and continued to carry out those purposes, where the user founded on would be incompatible with those purposes. That approach is also consistent with the Irish case, McEvoy v Great Northern Railway Co  2 IR 325, (Pales CB at 334-336) which proceeded on the basis that the acquisition of an easement by prescription did not require a presumption of grant but that the incapacity of the owner of the servient tenement to grant excluded prescription.
92 In this case if the statutory incompatibility rested only on the incapacity of the statutory body to grant an easement or dedicate land as a public right of way, the Court of Appeal would have been correct to reject the argument based upon incompatibility because the 2006 Act does not require a grant or dedication by the landowner. But in our view the matter does not rest solely on the vires of the statutory body but rather on the incompatibility of the statutory purpose for which Parliament has authorised the acquisition and use of the land with the operation of section 15 of the 2006 Act.
93 The question of incompatibility is one of statutory construction. It does not depend on the legal theory that underpins the rules of acquisitive prescription. The question is: "does section 15 of the 2006 Act apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green?" In our view it does not. Where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes. Where there is a conflict between two statutory regimes, some assistance may be obtained from the rule that a general provision does not derogate from a special one (generalia specialibus non derogant), which is set out in section 88 of the code in Bennion, "Statutory Interpretation" 6th ed (2013):
"Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Accordingly the earlier specific provision is not treated as impliedly repealed."
While there is no question of repeal in the current context, the existence of a lex specialis is relevant to the interpretation of a generally worded statute such as the 2006 Act."
"101 In our view, therefore, these cases do not assist the respondents. The ownership of land by a public body, such as a local authority, which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility. By contrast, in the present case the statutory harbour authority throughout the period of public user of the Beach held the Harbour land for the statutory harbour purposes and as part of a working harbour.
102 In this context it is easy to infer that the harbour authority's passive response to the use by the public of the Beach was evidence of an implicit permission so long as such user did not disrupt its harbour activities. This is consistent with our view of the byelaws which we have discussed above. There has been no user as of right by the public of the Beach that has interfered with the harbour activities. If there had been such an assertion of right it would not avail the public, because the 2006 Act cannot operate in respect of the Beach by reason of statutory incompatibility."
I should refer also to  where their Lordships addressed the situation at Newhaven:
"96 In this case, which concerns a working harbour, it is not necessary for the parties to lead evidence as to NPP's plans for the future of the Harbour in order to ascertain whether there is an incompatibility between the registration of the Beach as a town or village green and the use of the Harbour for the statutory purposes to which we have referred. Such registration would clearly impede the use of the adjoining quay to moor vessels. It would prevent the Harbour authority from dredging the Harbour in a way which affected the enjoyment of the Beach. It might also restrict NPP's ability to alter the existing breakwater. All this is apparent without the leading of further evidence."
(f) one must consider the actual statutory powers under which the land is held;
(g) the fact that in some cases parcels of land belonging to some statutory bodies have been registered does not give rise to a rule that any land held by a statutory body can be registered;
(h) it is not necessary that the land in question is used for a purpose incompatible with use as a village green. What matters is whether, as a matter of statutory construction, the relevant statutory purpose is incompatible with registration.
"77 It is clearly easier to apply the principle that the intention of Parliament was that the general Commons Act should yield to special Acts where the Act governs a specific statutory undertaker with specific functions to be performed over its landholdings. It is rather less easy to apply the principle where one general Act is said to yield to other general Acts, dealing with a local authority function. The notion that the general was intended to yield to the specific is very different from the general yielding to the general. But that glimpse of the rather obvious still leaves some issues as to how the line is to be drawn.
78 In Newhaven, the land in question was obviously central to any changes which might be needed to the operation of the port. Two questions however which did not arise directly in Newhaven were (1) whether public recreational use is incompatible with the exercise of the statutory body's functions where some use can nonetheless be made of the land for its purpose but the range of uses, including the more important ones for its functioning is inhibited; and (2) if no use could be made of that land for the statutory purpose, how significant did the impact have to be on the performance of the statutory function for statutory incompatibility to arise, if other land could be used albeit less satisfactorily."
There is nothing there which goes beyond Lord Neuberger's and Lord Hodge's approach of considering the nature of the statutory powers in question, nor is there anything which suggests that the only relevant statutory powers are those specific to the piece of land in question.
"A principal council may acquire by agreement any land for any purpose for which they are authorised by this or any other enactment to acquire land, notwithstanding that the land is not immediately required for that purpose; and, until it is required for the purpose for which it was acquired, any land acquired under this subsection may be used for the purpose of any of the council's functions."
"(1) a principal council may appropriate for any purpose for which the council are authorised by this or any other enactment to acquire land by agreement any land which belongs to the council and is no longer required for the purpose for which it is held immediately before the appropriation; but the appropriation of land by a council by virtue of this subsection shall be subject to the rights of other persons in, over or in respect of the land concerned."
(v) As to his sub-paragraph (c), I disagree with him on the argument that the land should be treated differently from the area currently occupied by the hospital. It is held under the same title and for the same statutory purposes. If this were a town planning decision, where questions of what the best use of the land would be, or of proportionality, I would agree with him. But they do not arise, and the point taken before him by for the applicant was irrelevant.
(vi) As to his sub-paragraph (d), that the Claimant's argument would emasculate the CA 2006 "when it came to land held by public bodies for specific statutory functions," his approach is not supportable in the light of Newhaven. The examples referred to above of land held for the purposes of local government, education and water resources show that the fear is not justified.
(vii) As to his sub-paragraph (e) (the importance of a positive duty to use the land for a specific purpose) no such test appears in Newhaven or in CA 2006. There is nothing inconsistent with the purposes in the Act that the Claimant retain the land for potential future use. Indeed, prudent husbanding of resources might make long term retention a prudent course. Nothing in the Act sets a test of necessity which has to be satisfied to make the possession lawful. It is of course true that at Newhaven the land was an unused part of the working harbour. But Lord Neuberger and Lord Hodge regarded evidence about future proposals as irrelevant- see  and . What mattered was the question of statutory construction ().
(viii) As to his sub-paragraph (f), he has equated one set of statutory powers (those entitling the NHS to possess this land) with the generality he has assumed exists in the powers of other statutory bodies to hold land under other statutory powers. As shown by examination of the Local Government Act 1972, the Education Act 2006 and the Water Industry Act 1991 above, it is unwise and misleading to make such assumptions. As their Lordships made clear in Newhaven, one has to look at the actual statutory power in question and determine whether there is incompatibility as a matter of statutory construction. Broad brush generalisations about statutory powers to own land do not meet that standard. I note that at no point in this part of his report does the Inspector seek to address the extent of the powers in the relevant legislation, some (but not all) of which he had identified at an earlier stage of his report.
(ix) As to his sub-paragraph (g), this is in truth an argument in favour of departing from Lord Neuberger's and Lord Hodge's insistence that one must address the relevant statutory powers. It can make no difference to their interpretation that it would have been straightforward to erect a sign. Lord Neuberger and Lord Hodge expressly rejected the argument of passive acceptance at  of Newhaven.
(x) I entirely understand and appreciate that the Inspector was taken by the fact that the land had not in fact been used for the statutory powers under which the Claimants possessed it. But that cannot be used as a way of interpreting the statutes in question.
(f) was the conduct by SCC of the meeting which considered the issue fair to the Claimant NHSPS?
a. The Registration of the Leach Grove Wood Town or Village Green of 6th October 2015 be quashed, and
b. The application for registration shall be re-determined by the Defendant Registration Authority in accordance with the judgement of this Court.
(l) Permission to appeal