The case concerned an application to Cheshire East Borough Council for the registration of land, described as roadside verge, as a village green under section 15(2) of the Commons Act 2006. The council had appointed a barrister, as independent expert, (“the expert”) to provide an opinion to the council on the merits of the application following receipt of written submissions and evidence pursuant to the expert’s specified timetable. The council submitted evidence two days late and the applicant was not afforded an opportunity to respond. In the expert’s subsequent written opinion, he held that no prejudice was caused to the applicant by the late disclosure since it was in his opinion relatively incontrovertible documentary evidence which did not significantly alter the council's position or the expert’s view of the issues. The expert found that the application land was part of the highway and recommended that the application should be rejected by the council. On the advice of the expert, the council subsequently refused the application.
The judicial review of the decision was brought by the Parish Council. No issue of standing was raised although the Parish Council was not the applicant for the registration of the village green.
It was not disputed between the parties that if the land was highway then it could not be registered as a village green. In short, if the land was highway then public use would be by legal right and any use that may not be considered lawful for highway purposes could not be reasonably discernible to a landowner so as to give rise to public usage sufficient for a town and village green application.
The Court found on the issues raised by the Parish Council that:
- The Parish Council had asserted that the expert was not independent as he had been instructed and paid for by the council. The Court found that appointing an independent legal expert to conduct a non-statutory enquiry and make findings was an appropriate mechanism in determining town and village green applications. Although it was noted that if the council had rejected the expert’s findings that might give rise to apparent bias. Further, the expert was a barrister in independent practice and, adopting the objective test of a reasonable member of the public who was neither complacent nor unduly sensitive or suspicious there was no proper basis for a finding of apparent bias based on that point.
- The Parish Council had asserted that the failure to afford the applicant an opportunity to reply to the late evidence of the council was a procedural defect. The Court agreed. The Judge stated that: "where it was apparent to [the expert] that this defect occurred, it was up to him if he was to consider taking the evidence into account to offer to the [the applicant] the opportunity to make further representations. Proceeding to give an opinion without giving [the applicant] that opportunity was a serious procedural defect which vitiated the fairness of the procedure” The Court then consider section 31(2A) of the Senior Courts Act 1981 which provides that where it is highly likely the outcome for the applicant would not be substantially different, had the error not occurred, then the Courts must not grant relief of a judicial review. The highway evidence was primarily based on the recording of the roadside verge on the list of street (and application of the presumption of regularity), conveyances for part of the land under the Public Health Act 1875 (for the acquisition of land for the purposes of making new streets) and grass cutting records. The Parish Council subsequently during the Court proceedings produced evidence of the verges being managed privately for agricultural purposes. The Court therefore found that it was not highly likely the opinion of the expert would have been the same. Accordingly, the decision of the council was quashed.
- A final point raised by the Parish Council was whether the dispute should have been dealt with by way of public inquiry (as opposed to the written representation procedure adopted by the expert). The Court stated that in any case where there was a serious dispute, a registration authority would almost invariably need to appoint an independent expert to hold a public inquiry, and find the requisite facts, in order to obtain the proper advice before registration. The Judge indicated that, given the serious issues arising in the highway status of the land, in this case the expert should have held a public inquiry. In summary, the lessons of this case are that: (a) parties should be afforded reasonable time to respond to late evidence submitted by another party (whether such time is expressly requested or not); (b) highway evidence should be carefully reviewed noting the list of streets is not definitive of the legal status of the land; and (c) where there is a serious dispute a public inquiry must be held.]
