Forbes v Wokingham Borough Council, Court of Appeal - Administrative Court, October 04, 2018, [2018] EWHC 2530 (Admin)

Resolution Date:October 04, 2018
Issuing Organization:Administrative Court
Actores:Forbes v Wokingham Borough Council

Neutral Citation Number: [2018] EWHC 2530 (Admin)

Case No: CO/2651/2018




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/10/2018

Before :



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Between :

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Mr D Wolfe QC and Ashley Bowes (instructed by Richard Buxton Solicitors) for the Claimant

Mr N Westaway (instructed by Select Business Services Legal Solutions) for the Defendant

Mr D Edwards QC and Daisy Noble (instructed by Mills and Reeve Solicitors) for the Interested Party

Hearing date: 13 September 2018

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Judgment ApprovedMr CMG Ockelton :

  1. This is a renewed application for permission to apply for judicial review following refusal on the papers by Mr David Elvin QC sitting as a Deputy Judge of this Court. The decision under challenge is the defendant's decision dated 28 March 2018 rejecting the claimant's application to register land in Wokingham as a new town or village green pursuant to section 15(3) of the Commons Act 2006. The interested party is the owner of the land.

  2. The process leading up to the decision in this case was as follows. The claimant's application to the defendant as Commons Registration Authority was made on 8 June 2015. The defendant consulted on the application and the interested party objected. The defendant instructed a barrister Inspector to conduct a non-statutory inquiry in accordance with the procedure approved in R (Whitmey) v Commons Commissioners [2005] QB 282. The appointed Inspector, Felicity Thomas, gave directions on 13 June, 8 August and 8 September 2016, the directions on the latter two occasions resulting from amendments of her application made by the claimant. The inquiry sat from 12-20 December 2016. The claimant and the interested party were represented by Counsel. The claimant called 19 oral witnesses and relied on witness statements of 15 witnesses and the result of 83 questionnaires, as well as photographic evidence.

  3. The Inspector's Report, running to 302 paragraphs, is dated 18 September 2017. It recommends the defendant to reject the application. The reason was that the Inspector found that the claimant had failed to show that it was more likely than not that there had been lawful sports and pastimes on the land of the required quantity and quality for the relevant 20-year period.

  4. Reaching the conclusion in the manner she did, the Inspector did not need to consider all the statutory criteria. Following representations from the parties, the defendant asked the Inspector to provide her views on those criteria. The Inspector made a supplementary report dated 18 October 2017 to that effect. On 22 November 2017 the claimant wrote to the defendant inviting it to reach the conclusion different from that reached by the Inspector. The Inspector provided a note on 9 December 2017 pointing out the parts of her report which appeared to her to deal with the matters raised in that letter.

  5. The application was then reported to the Defendant's Commons Registration Committee. There was an officer's report and the claimant wrote to the members of the committee. On 28 March 2018 the defendant held a public meeting, at which representations were made both in support of and objection to the application. Issues were raised by members of the committee and answered. After the public meeting, the committee made its decision in private, and notified it in writing. It refused the application. The record of the decision indicates that the committee considered all the submissions, the Inspector's two reports and all the other documents referred to in the officer's report and made its decision on the basis that it would endorse the Inspector's conclusion.

  6. The decision is dated, as I have said, 28 March 2018. The present proceedings were filed on 14 June 2017.

  7. In this renewed application Mr Wolfe QC on behalf of the claimant raises four grounds of challenge. The first is that the defendant erred in not holding the whole of its decision-making process in public. The second is that in reaching her conclusion the Inspector failed to consider the activities she had identified cumulatively and in total in reaching her conclusion on whether a substantial number of inhabitants had indulged in them. The third ground is that the Inspector excluded from her consideration certain activities as lawful sports and pastimes when she should in law have included them. The fourth ground is that the decision does not give sufficient or intelligible reasons, particularly in relation to the claimant's suggestion that the defendant should not adopt or follow the Inspector's conclusion.

    GROUND 1

  8. The foundation of the claimant's claim under this ground is section 100A(1) of the Local Government Act 1972, which provides as follows:

    ``(1) A meeting of a principal council shall be open to the public except to the extent that they are excluded (whether during the whole or part of the proceedings) under section (2) below or by resolution under subsection (4) below.''

  9. Subsection (2) relates to matters which are confidential and prohibited from public access. Subsection (4) when read with s.100I and schedule 12A enables a relevant resolution to be passed if the discussion will include private or financial information or information in respect of which a claim to legal privilege could be maintained, amongst other things. There was no resolution in the present case.

  10. In its summary grounds, the Council argues that s.100A does not require a decision of the sort challenged in the present claim to be made in public; but in any event a claim under this ground should be rejected for two reasons under s. 31(3C) and (3D) of the Senior Courts...

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