Challenge to Inspector in Village Green Application

We were instructed in respect of an unusual case where applicants to register a parcel of land as a village green under the Commons Act 2006, wanted to replace the Inspector that had been appointed by the Commons Registration Authority.

Our clients had made an application to their County Council (as the relevant statutory Commons Registration Authority) to register the land as a village green under section 15 of the Commons Act. The land should be protected, they said, because the local community had used the land for lawful recreation for at least twenty years.

Preliminary arrangements for an inquiry were made by the council to test our clients’ evidence and allow any objectors to voice their concerns. An Inspector was appointed and a pre-inquiry meeting took place with Counsel for each party. A number of issues were considered including a request by our clients to amend the application in relation to the locality/neighbourhood. However, there was no proper consideration of the application – for example Counsel for our clients had indicated that there was a “raft of cases” to be considered and the Inspector said that he did not need to be provided with these. Nevertheless, following the pre-inquiry meeting, the Inspector issued proposed directions which were adopted by the Commons Registration Authority. These included a refusal of the application to amend the locality.

We were instructed and sent a letter before action, warning the Commons Registration authority that our clients would judicially review that decision on the basis of procedural unfairness.

The Commons Registration Authority agreed that the decision would be reconsidered. However, although we had asked that the letter before action not be sent to the Inspector, it became apparent that the Inspector had had sight of the Commons Registration Authority’s response. We requested disclosure of the communications between the Inspector and the Commons Registration Authority. This was repeatedly refused on the grounds that it was privileged. It therefore appeared that the Inspector had advised the CRA in its defence of the threatened Judicial Review proceedings.

Our clients were therefore placed in the unusual position where the person dealing with the village green application (including determining the renewed application to amend the locality) had advised the CRA in relation to the challenge brought by our clients. In other words there was now a very real question over whether the Inspector could be seen to be impartial.

A second Judicial Review application was threatened. However, ultimately the issue did not need to be determined as the Inspector withdrew for unrelated reasons. A new Inspector is being appointed.

We remain instructed to progress to the application for registration. Counsel is Paul Wilmshurst of New Square Chambers.