No5 members successfully defend judicial review proceedings in the High Court

Fri, 01 Nov 2013

Ian Dove QC, Tim Jones and Nina Pindham, on behalf of Birmingham City Council, successfully defended judicial review proceedings in the High Court on Tuesday 22nd October 2013. The decision being challenged was the Defendant’s adoption of the preliminary decisions of an Inspector appointed to conduct an inquiry into the registration of two village green applications in Sutton Coldfield, Birmingham. The Claimants were also ordered to pay the Defendant’s costs.

The claimant landowners (Keir Ventures Limited and Rubery Owen Holdings Limited) possess planning permission to develop the two fields which is set to expire in May 2014.

The Claimants’ sought to challenge the limit of the Inspector’s discretion to allow amendments to village green applications, and the procedure which he chose to follow. It was submitted that:

1. There was no discretion to amend an application from locality- to neighborhood-based (i.e. from limb A to limb B) under the Commons (Regulation of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007;

2. That, if there was such a discretion, there was a requirement to formally amend the applications, sign a re-sworn statutory declaration and submit supporting evidence pursuant to such amendments under the Regulations;

3. That unless and until such steps were taken the applications were bound to fail (citing R. (Cheltenham Builders) v South Gloucestershire District Council [2003] 4 PLR 95, Church Commissioners of England v Hampshire County Council and Barbara Guthrie [2013] EWHC 1933 (Admin), Paddico (267) Ltd v Kirklees Metropolitan Council [2012] EWCA Civ 262, and R. v Somerset County Council ex. p. Mann CO/3885/2111).

4. That any application which was bound to fail could not properly be the subject of an inquiry to register land as a village green.

Ian Dove QC, on behalf of the Defendant, submitted that the launch of judicial review proceedings was entirely unnecessary as the Inspector could deal with any issues of unfairness, if he considered that to be appropriate, by further direction or by adjournments. Relying on R. (on the application of Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin) and Oxfordshire County Council v Oxford City Council [2006] UKHL 25, he submitted that the procedure in relation to village green applications was meant to be informal and based on ensuring fairness to the parties and that the Inspector’s approach could not be criticized.

The Court was also invited by the Claimants to hear the application for permission as a rolled-up hearing and to adjudicate on whether the Interested Parties disclosed an arguable case.

All of the Claimants’ arguments were rejected by HHJ Robert Owen QC (sitting as a High Court Judge). He held that there plainly was jurisdiction to amend an application from being based on use by a locality to use by a neighborhood; that the Inspector had fairly and properly dealt with the Claimants’ objections; that it was a question of circumstances whether the statutory declaration had to be re-sworn (and that in the present circumstances it was not necessary); that if there was any criticism of the Inspector’s approach (albeit nowhere near justifying the launching of the proceedings for judicial review) it was that he had implicitly granted permission to amend the applications. Other than that, the judge stated that there could be no criticism of the Inspector’s decision. 

Please click here to view the profiles of Ian Dove QC, Tim Jones and Nina Pindham

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