Church Commissioners for England, R v Hampshire County Council & Anor [2014] EWCA Civ 634

[2014] EWCA Civ 634Case No C1/2013/2127
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2013] EWHC 1933 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Mr Justice Collins
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 14 th May 2014
Before
LADY JUSTICE ARDENLORD JUSTICE RICHARDSLORD JUSTICE VOS
Between
R(Church Commissioners for England)AppellantsHampshire County Council & AnrRespondentsBarbara GuthrieIntervener
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Jonathan Karas QC and Mr Benjamin Faulkner (instructed by Farrer & Co LLP) for AppellantMr John Hobson QC and Ms Philippa Jackson (instructed by Head of Legal Services) for Respondents for The Intervener was not represented and did not appearHearing Hearing dates : Wednesday 5 February 2014
Judgment
[1]Applications (“TGVA”) to register land as a town or village green (“TVG”) under the Commons Act 2006 (“CA 2006”) must comply with certain regulations and be filed within specific time periods. There is a limited possibility of correction. In this case, Mrs Guthrie, the interested party in these proceedings, wished to register certain land at Bushfield Camp in Hampshire as a TVG. If an application is duly made, notice is given to the landowner, in this case the appellants (“the Church Commissioners”), and members of the public. They may object to registration of the TVG. If the application for registration is successful, use of the land is restricted to recreational use as a TVG, and the landowner therefore may not develop it.[2]Mrs Guthrie filed her application on 30 June 2008 with the registration authority, the respondent (“the Council”), but, as I explain below, it was defective in several respects. In his judgment dated 10 July 2013, now under appeal, Collins J held that a TVGA could as a matter of law be corrected and that if the corrections were made within a reasonable period the corrected TVGA would take effect from the filing date. The correctness of that ruling is the first issue on this appeal (“retrospectivity issue”).[3]Mrs Guthrie finally complied with all the requirements for applications on 20 July 2009. Collins J went on to hold that that was within a reasonable opportunity. The Church Commissioners now appeal from that ruling, and that issue (“reasonable opportunity issue”) is the second issue on this appeal.[4]If the Church Commissioners succeed on either issue, Mrs Guthrie will be too late to file a new application to register the land as a TVGA, and the Church Commissioners will be able to develop it, as they in fact wish to do in part.[5]In my judgment, on the facts, the judge’s ruling on the retrospectivity issue was plainly correct as a matter of statutory interpretation. However, on the reasonable opportunity issue I consider that what is a reasonable opportunity is ultimately a question of law for the court. The requirements for TVGAs represent a balance between the interest of the public and that of the landowner. That balance was struck by the time Mrs Guthrie had been given nine months to correct her application and help to complete it. Moreover she was warned that she had to complete it within a period of time which she exceeded on more than one occasion without explanation. I would therefore allow the appeal. I explain how I have reached these conclusions below.[6]It is a pre-condition of registration as a TVG that the land in question was used by a significant number of inhabitants of the locality or a neighbourhood “as of right” for sports or pastimes (i.e. for recreational use) for at least 20 years: CA 2006, section 15(2)(a), (3)(a) and (4)(a). While that is an important pre-condition, it is not material at this stage in this case because we are dealing with preliminary issues. If the appeal fails, the question whether this important pre-condition was met will have to be addressed, but not till then. For the moment, I assume that Mrs Guthrie will be able to show that it is met.[7]The primary rule in section 15 is that the recreational use must be continuing at the date of the application: see section 15(2). In some cases, however, of which this is said to be one, that use will have ceased before the TVGA. Section 15(3) and (4) deal differently with cessation before and after the commencement of the CA 2006. Lewison LJ explained in R(Newhaven Port & Properties Ltd) v East Sussex County Council (No.2) EWCA Civ 673, [2013] 3 WLR 1433 at [62] to [63] that this is because it was easier for a landowner to cause the use to cease before that date than afterwards since before that date he simply had to give notice that he consented to the use and not physically prevent use of the land. Accordingly section 15 provides that an application for registration as a TVG may be made within 5 years of the cessation if cessation occurred before the date of the commencement of section 15 (section 15(4)). It provides a 2-year period (in the case of England) and a 1-year period (in the case of Wales) where the cessation takes place after the commencement of section 15 (section 15(3) and (3A).

Making a TVGA - form and content of application

[8]There are a number of detailed requirements that must first be fulfilled when making an application for land to be registered as a TVG so that the registration authority can check that, on the face of it at least, the relevant requirements for registration are fulfilled. These requirements are found in regulations made under section 24 of the CA 2006. The relevant regulations applicable to this case are The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 (2007 SI no 457) (“the Regulations”), which have since been amended.[9]Under Regulation 3, the applicant must use form 44, set out in the schedule to the Regulations. Note 5 to form 44 makes it clear that the scale of the map must be at least 1:2,500. In addition, (among other requirements) the applicant must provide a statutory declaration in support of the application (Regulation 3(2)(d)). The Regulations also require the application clearly to identify the relevant land and to show the locality or neighbourhood.[10]Form 44 refers to guidance notes, which are published separately. They are thus non-statutory and do not form part of the Regulations. They state in relation to a TVGA that the stamp which the registration authority gives to the application as the date of receipt “may be important, because it is the date against which the time limits on applications in section 15(3) and 15(4) apply”.[11]The annex to this judgment sets out the relevant provisions of the CA 2006 and the Regulations.

Mrs Guthrie’s TVGA – history of filing and correction

[12]As explained, Mrs Guthrie’s application was originally filed on 30 June 2008. This was defective in three respects which the Council pointed out to her in their letter of 1 July 2008, returning her application: i) Mrs Guthrie had not given a date for the cessation of recreational use as required by form 44 but had merely said that it was “a period of months during the summer of 2003”; ii) The application did not identify the locality or neighbourhood to which the claimed TVG related as required by form 44; iii) The statutory declaration in support of the application was defective in that the sections which are not part of the declaration were not struck out.[13]The Council pointed out that other evidence on its files relating to the same land, namely a statement by the applicant in support of an application to register rights of way, suggested that access was prevented in spring 2003. Reference was also made to the application to record public rights of way over the land made on 17 June 2003 accompanied by a poster referring to the “recent enclosure and fencing of the land".[14]The Council invited Mrs Guthrie’s comments on the possibility that her application was out of time and gave her 6 weeks to respond. The Council returned the application to Mrs Guthrie without retaining a copy.[15]Items (i) and (ii) were serious defects as they made it impossible to tell if the application was properly made. Item (iii) is of little importance because, while the Council did not retain a copy of the application, it is sufficiently clear that item (iii) was trivial and could properly be treated as not reaching the threshold necessary for sanction by the law on the basis of the maxim de minimis non curat lex.[16]On 11 August 2008, Mrs Guthrie resubmitted her application. As regards the date of cessation, she explained why the application had not been submitted with the right of way application and gave the following explanation about the cessation date:
“Regarding the actual date on which free access to the Down was first restricted, we have searched through our records but failed to establish a date more accurate than “during the summer of 2003”
. We have one diary entry stating that the land was cleared in mid May and the photograph of fencing dated July 16th. Certainly our application to record public right of way over the land was made on June 17th 2003 and to that extent our recent submission falls just outside the 5 year time limit for applications under section 15(4) of the 2006 Act. My own statement about access being prohibited in Spring 2003 is not helpful and I would only say that was related to concerns about the nesting season.”[17]The Council took the view (correctly) that the application was still defective. On 28 October 2008, it informed Mrs Guthrie that the application was still not duly made because: i) no specific date had been given for the date of cessation of user as of right; ii) the map accompanying the application was not on the scale of not less than 1:2,500; iii) the locality was marked by a green line and not a red line as stated in the application.[18]The Council pointed out that unless the application was put in order they would have to reject the application under Regulation 5(4) as not having been duly made. The Council additionally pointed out that, if the form was amended, the statutory declaration would have to be re-sworn. As the judge observed, the Council did not, however, impose a time limit for filing a duly completed application on this occasion as it should have done.[19]On 8 December 2008, Mrs Guthrie asked the Council for clarification among other matters on whether the Council knew when user as of right ceased, having failed to arrive at a definitive date herself. The Council’s reply dated 22 December 2008 was that it could not assist her on this.[20]On 3 February 2009, the Council sought a response from Mrs Guthrie to its letter of 22 December 2008 by 1 March 2009, adding that if she did not respond by then the Council would assume that she did not wish to proceed with the application and that it could reject it as not being duly made. Mrs Guthrie replied on 12 February 2009 saying that she had “been away” and that she would send her application in due course.[21]Mrs Guthrie did not have the correct map. At the Council’s request, the Church Commissioners gave permission for the Council to provide her with a map on the correct scale. The Council sent this to her on 8 April 2009, and gave her until 1 May 2009 to submit her completed application in the correct form. The officer of the Council stated:
“It is now 9 months since your application was submitted and 5 months since our request for further information. I must ask you to return your completed application in the correct form to reach us no later than 1 May. If not I shall have to reject it as not being validly made.”
[22]On 1 May 2009, Mrs Guthrie resubmitted her application but the statutory declaration had not been resworn.[23]On 16 July 2009, the Council emailed Mrs Guthrie requiring the statutory declaration to be resworn by 24 July 2009.[24]Finally, on 20 July 2009 Mrs Guthrie filed her completed application in a form which complied with the Regulations. In her TVGA, Mrs Guthrie contends that the cessation date was in the week ending 13 July 2003, when the Church Commissioners erected a fence around the land sought to be registered as a TVG.[25]On 1 September 2009, the Council gave notice to the Church Commissioners of Mrs Guthrie’s TVGA as required by Regulation 5(1).[26]On 23 October 2009, the Church Commissioners submitted their Objection to the Application. The Church Commissioners took the point that the application as originally filed was defective and that it was not duly completed until after 5 years from the week commencing 13 July 2003.[27]The Church Commissioners did not obtain the documents passing between Mrs Guthrie and the Council until 26 January 2012. They were not aware until then of the defects other than Mrs Guthrie’s failure to use the appropriate map and failure to indicate the cessation date.[28]The Council decided to appoint Mr Blohm QC to hold an inquiry into whether the application had been duly made. In his skeleton argument dated 1 March 2012 Mr Karas took the point that the Council could not give more than a reasonable opportunity for correction of an application.[29]In May 2012 Mr Blohm QC concluded in effect that the application had been made for the purposes of section 15(4) on the date when it was originally received. His view was that it was for the Council to assess whether a reasonable opportunity to correct the defects had been had; that the Council could take into account the fact that Mrs Guthrie was acting in person and the relative complexity of the legislation; and that the Council’s decision to allow more time to the applicant could not be said to be perverse. The Council accepted Mr Blohm QC’s advice.

Judgment of Collins J

The judge’s judgment is precise and clear.

[31]The principal paragraphs dealing with the retrospectivity issue are paragraphs 23 to 25, which are as follows:
“23. Regulation 4 of the 2007 Regulations requires any application to be stamped and recorded. There is no provision that, where it is regarded as not duly made, once put in proper form there is any fresh record to be made. That, submits Mr Hobson, is consistent with an intention that the corrected application should be considered as having been made when it was originally submitted. Mr Karas relies on the removal in regulation 5(4) of the obligation to take formal steps, in particular to notify the landowner. This, he submits, is inconsistent with the ability to give retrospective effect because it would be manifestly unfair to a landowner not to be notified of an application when he would believe that he no longer faced a possible application for a TVG. 24. There is nothing in the wording of the Regulations which requires me to decide that there cannot be retrospective effect of a corrected application. It seems to me that, provided that the landowner is notified that an application has been made, there is no unfairness. It must be borne in mind that many applications for TVGs are made by interested persons acting without legal assistance and, since the rights sought will be for the benefit of the public, applications should not be defeated by technicalities. 25. I have no doubt that the Regulations ought to have required notice to be given, albeit not in a formal way, to a landowner. Fairness, which the common law can and should where possible write into statutory powers, so requires. Furthermore, the interference with AIPI rights means that such notification is essential. It will enable landowners to press the registration authority to ensure that the applicant is only given a reasonable time to put the application in order.”

The judge dealt with the reasonable opportunity issue in paragraph 26 of his judgment, which reads:

“26. It follows that I am satisfied that in principle Mr Blohm QC, Ms Crail and Mr Hobson are right in submitting that a corrected application can have retrospective effect. However, Mr Karas submits with some force that the period allowed by the defendant was excessive and the interested party took far too long to do what was needed. I am sure Mr Karas' criticisms were right. However, the claimants were aware of the application and not only did they not press for an earlier resolution or let the defendant know that they considered its failure to deal with the matter earlier was unreasonable, but in March 2009 they were prepared to assist the interested party by agreeing to the provision of a map for her. Thus I do not think they can now complain that the long period before the application was put in order was unreasonable. If they had pressed the defendant and the interested party had as a result been given shorter periods to act different considerations would apply.”
(emphasis added)

Submissions and discussion

[33]As before the judge, Mr Jonathan Karas QC, leading Mr Benjamin Faulkner, appeared for the Church Commissioners and Mr John Hobson QC, leading Ms Philippa Jackson, appeared for the Council. Mrs Guthrie was not represented and did not appear either on this appeal or below.

Retrospectivity issue

[34]The limited possibility for correction of an application to which I referred in paragraph 1 of this judgment is to be found in Regulation 5(4) of the Regulations. This suspends the registration authority’s right to reject a non-compliant application, and thus its obligation to give notice of application to persons interested in the land and to the public, until the applicant has been given a reasonable opportunity to put her application in order :
“(4) Where an application appears to the registration authority after preliminary consideration not to be duly made, the authority may reject it without complying with paragraph (1), but where it appears to the authority that any action by the applicant might put the application in order, the authority must not reject the application under this paragraph without first giving the applicant a reasonable opportunity of taking that action.”
[35]Mr Karas contends that Regulation 5(4) is not retrospective so that any corrected application only takes effect from the date of the filing of the corrected application. But this argument runs up against the point, pressed by Mr Hobson, that under Regulation 4 (set out in the Annex to this judgment) the registration authority must stamp every application on receipt. Regulation 5(4) does not suspend this obligation, nor is there any provision for altering that date. In response to this difficulty, Mr Karas argues that the expression “made” in Regulation 5(1), which starts with the words “where an application is made under section 15(1)” of the CA 2006, means “duly made in accordance with the regulations”: see sections 15 and 24(1). But if that were so, Regulation 5(4) would not have to suspend that obligation.[36]Mr Hobson also relies on Regulation 3(2)(d)(ii) which enables a registration authority to require further evidence to be lodged. This has no effect on the date of the application. I do not consider that there is much weight in this point as Regulation 3(2)(d)(ii) is clearly referring to the production of further evidence while the registration authority is considering the application. I therefore agree with Mr Karas that Regulation 3(2)(d)(ii) does not of itself indicate retrospective operation.[37]Mr Hobson points out that the Regulations do not exclude an application which does not comply with procedural requirements from being corrected and may be contrasted with section 67(3) of Natural Environment and Rural Communities Act 2006 (“NERCA 2006”). This deals with applications to extinguish rights of way and which provides:
“For the purposes of subsection (3), an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act.”
[38]As the judge pointed out in [22] of his judgment, in R(Fellows of Winchester College) v Hampshire CC [2008] 3 All ER 717, this court decided that section 67(3) meant that an application had to satisfy all the requirements of paragraph 1 of schedule 14 of NERCA 2006 before it could be considered as made. There is no equivalent provision in Regulation 5(4). But as the judge pointed out this would be a serious step as it would put the applicant at the mercy of the registration authority if it failed to point out a defect in the application before it was too late under section 15 of the CA 2006 to amend it.[39]In my judgment, Mr Hobson’s interpretation is to be preferred. If the application does not comply with the regulations, Regulation 5(4) enables the registration authority to reject it without going through the procedure of giving notice to the landowner and others. But if the registration authority thinks that the applicant can correct the errors, it can give him a reasonable opportunity to do so. If within the reasonable opportunity so given the applicant corrects the errors, the original application has full force and effect and therefore the Regulation must be retrospective.[40]I reach this conclusion on the basis that the Regulations throughout refer to one and the same application. In addition, the application is given a date on the receipt. Dating the application must be for some purpose. Furthermore there is no reason why Regulation 5(4) should restrict the opportunity for correction to a reasonable opportunity if even a correction made within a reasonable opportunity achieves nothing that would not have been achieved by a new application.[41]In my judgment, it does not help Mr Karas’ argument that the Regulation 4 obligation hinges not on the making of the application but on its receipt. The point remains that it would be wholly misleading for the application to be dated with the date of its receipt if that were not its effective date.[42]The guidance note referred to in form 44 is consistent with the view that I have taken (see paragraph 10, above). Although it is non-statutory, it has some weight because it is referred to in form 44 which is a statutory document.[43]I agree with the judge that it would have been better if Parliament had provided that the landowner should receive a precautionary notice as soon as an application was received. However, that point seems to me to lead to the conclusion that the period between the date of the application and its due completion should be short.[44]Accordingly, I conclude on this issue that Regulation 5(4) provides a means for curing deficiencies in an application which does not provide all the statutory particulars, and, once an application is so cured, it is treated as duly made on the date on which the original defective application was lodged. I would therefore dismiss the appeal on this issue.

Reasonable opportunity issue

[45]In view of my conclusion on the retrospectivity issue, I need to address this second issue.[46]I start with the threshold question of the standard for appellate review on this issue. Mr Karas submits that whether an opportunity was reasonable is a question of law for the court. Mr Hobson submits that it is for the registration authority, and not the court, to decide what period of time is reasonable, and that its decision is reviewable only on Wednesbury principles, i.e. only if it exceeds the margin of discretion open to a reasonable registration authority. He submits, therefore, that an application can be excessive without being Wednesbury unreasonable, and that it all depends on the circumstances whether an opportunity is appropriate.[47]In my judgment, the question of whether an applicant has had a reasonable opportunity is a question of law for the court and I would reject the submission that the Wednesbury test applies here. Parliament has not used words such as “an opportunity which in the opinion of the registration authority is reasonable". In my judgment, it would have used such words if it had intended the registration authority to decide what a reasonable opportunity required. As it is, that power is not expressed.[48]Moreover, if the registration authority had such power, there might well be inconsistent results with different applications, and that might be inconsistent with the property rights of the parties. Thus it seems to me that Parliament would have to have used clear words if it had intended that the decision of the registration authority should be reviewable only on Wednesbury grounds. No such words are used, let alone clear words.[49]However, to determine when an opportunity is reasonable requires the decision-maker to make an evaluation of all the relevant facts and circumstances. In doing this the court would no doubt take into account any special expertise or knowledge which the registration authority had. In addition, an appellate court would, if the trial judge heard oral evidence, take into account that the judge had had that advantage, which it does not have. But here there is no special feature alleged nor is any matter relied on which turns on the oral evidence.[50]What makes an opportunity a reasonable one for the purpose of Regulation 5(4)? In my judgment, by providing that an applicant may be given a reasonable opportunity, Parliament has required the interests of the landowner and the applicant to be fairly balanced. Put another way, when the registration authority is making its decision, it has to balance its obligation to accept a valid application (including one that, though defective, can without undue difficulty be made valid) against its obligation to reject an application that does not comply with the statutory requirements.[51]What are the ingredients in this balancing exercise? Mr Karas urged the court to take into account the fact that Parliament had laid down fixed limitation periods in section 15 of the CA 2006 and that it was in the public interest that there should be certainty about the status of land. He further submits that there is also a public interest because of the consequences for planning and compulsory acquisition of registration as a TVG. Mr Hobson in response urged the court to take into account that a landowner could always protect himself by putting up notices and maintaining fences (whereas in this case it appears that fences were allowed to fall into disrepair). It might similarly be argued that the benefit to the locality or neighbourhood of the recreational space and the benefit to the community in general of land being removed from development should be taken into account.[52]In my judgment, Regulation 5(4) does not require the registration authority to balance the rights of the parties at this abstract level. That form of balancing has already been performed by Parliament in enacting Regulation 5(4), providing for the applicant with a defective application to have a reasonable opportunity to put it right, and by implication that the registration authority has no power to waive any mandatory requirement and no obligation to investigate applications. The balancing exercise under the Regulations is a purely pragmatic one. That is appropriate where in the normal run of things the exercise is carried out solely by the registration authority.[53]That also means that the exercise is to be conducted on the concrete facts of the case. Furthermore, the test of reasonable opportunity is in principle objective, with this qualification. It is apparent from the fact that there is power for the registration authority to provide a reasonable opportunity that Parliament anticipated that applicants would often be private individuals acting without professional advisers to file the application for them. It is therefore right to take into account those particular characteristics of the applicant. The fact that the approach is objective would not prevent the special characteristics of the land being taken into account as one of the relevant facts where there is a pressing need to resolve the status of the land for planning purposes.[54]In the normal way the court will decide whether an opportunity is reasonable by looking at the circumstances at the time of the decision but a person can waive his right to object on the grounds that an excessive opportunity has been or is being given to the applicant at any time. It would clearly be relevant if the Church Commissioners had assented to further time being given to the applicant knowing the facts which meant that the period of time granted to her went beyond a reasonable opportunity to correct her errors. But, for this purpose, standing by with knowledge of the defect is not generally enough. In my judgment, there has to be some positive action by the landowner with knowledge of the relevant facts to create a situation in which he is prevented from objecting later to the length of time given to the applicant. To hold that the position were otherwise would encourage undesirable satellite litigation.[55]Here the Church Commissioners took positive action by assenting to the applicant being given a map which would meet the requirement on her in that regard. As the judge rightly pointed out, the Church Commissioners could not complain of any excessive time taken to produce the map because the Church Commissioners were willing for the Council to give her a map. If they considered that she had taken too long to produce a map, they should not have given their assent. However, that does not mean that they could not subsequently complain about excessive time being given to correct other errors of which they were unaware.[56]Mr Hobson's argument is that the knowledge that the Church Commissioners had was sufficient to make it just that the applicant had effectively as long as she took to file the application. On his submission, the Church Commissioners were effectively aware from the outset that there were critical deficiencies in the application, namely a failure to use the correct map, to identify the locality or neighbourhood and to indicate the date when on the applicant's case recreational use ceased. However, the vital point is that the Church Commissioners were not aware that the Council had given specific and adequate extensions which have not been complied with for no good reason. In those circumstances the Church Commissioners are able to take that point.[57]Moreover, the judge did not go that far. But he thought that there had been assent and to do that he had in my judgment to rely on the failure to take action. In my judgment that is in general not enough. There is no reason to depart from the general rule here because the landowner was never given proper notice of the defects.[58]On the other hand, the court must take into account that the applicant had no professional help with filing her application. Mr Karas accepts that it would be wrong to approach the question of what is a reasonable opportunity with excessive technicality. Moreover, the Council properly rejected Mrs Guthrie’s request for help. The Council suggested that the Open Spaces Society might be able to help but there is no evidence about that. When it came to the map, the Council adopted a procedure which was correct in involving the Church Commissioners and which reflected a proper concern for Mrs Guthrie’s status as a self-represented party.[59]However, extensions of time must be within reason. As I have already said, the Regulations do not require the landowner to be given notice that the application is received and this is an indication that the interval of time is intended to be short.[60]It is necessary to look at the events in some detail. Mr Karas contends that the opportunity given was plainly too long. He submits that Mrs Guthrie seems to have been aware that her application was out of time. He relies on the passage I have quoted from her letter of 11 August 2008 to the Council. He submits that by 8 April 2009 she had had a “reasonable opportunity”. She had had nearly 13 months in all by July 2009. There had to be chasing letters from the Council. Mrs Guthrie never gave an explanation as to why she was unable to rectify her application in a shorter time although on one occasion she did explain that she had “been away”. In any event the Church Commissioners were not involved in giving her extensions. In addition, a tenant farmer had also objected. In any event on the true construction of the Regulations, the reasonable opportunity must only be a short opportunity to put matters right.[61]Mr Hobson submits that it is clear from the statutory declaration of Miss Louise Kirsty Spain, an associate at Strutt & Parker, managing agents for the Church Commissioners, that she had been aware that an application had been made on 30 June 2008 because of an email dated 18 July 2008 sent by an official at the Council to her colleague. She understood that the application was returned because the appropriate map was not included and because the application failed to specify when user as of right ceased. In fact, the form does not have to specify a date when user as of right ended. Mr Hobson submits that the whole process was going on between Mrs Guthrie and the Council with the knowledge and active collaboration of the Church Commissioners.[62]Mr Hobson submits that the Church Commissioners did not take the point that Mrs Guthrie was afforded more than a reasonable opportunity until the inquiry before Mr Blohm QC. The Church Commissioners were then focusing on the retrospectivity issue. Mr Hobson submits that the opportunity was a reasonable one. He submits that it is irrelevant that they did not seek copies of the correspondence. The Church Commissioners were entirely aware of the position. Moreover, on Mr Hobson’s submission, the Church Commissioners did not suffer any specific prejudice.[63]In my judgment, a reasonable opportunity was exceeded in this case. Taking the principal communications in turn, the Council’s original letter of 1 July 2008 was unfocussed because the Council did not give a time limit for correction of the defective application perhaps because the Council mistakenly thought that there was some doubt about the legal status of a defective application. Their next letter of 28 October 2008, as noted above, failed to set a time limit but that does not mean that the time which had now passed since the application was originally filed should be left out of account. The Council’s letter of 3 February 2009 did set a time limit. It is again a relevant factor that Mrs Guthrie failed to observe that time limit. In short I consider that there is much force in Mr Karas’ submission that by April 2009 Mrs Guthrie had had a sufficient opportunity to address the defects in her application. The errors were not difficult to correct: Mrs Guthrie did not have a map but there has been no evidence or suggestion in argument that the cost was high or that it would have been difficult for her to mark it up. I would have been prepared to decide the case on the basis that by 1 April 2009 she had had a reasonable opportunity if it had been necessary to do so.[64]The defect in her application due to the lack of an appropriate map was corrected when the Council provided Mrs Guthrie with a map (with the Church Commissioner’s assent). At the same time, by its letter of 8 April 2009 the Council gave her yet another opportunity to correct her application, this time until 1 May 2009. By this stage – ten months after the original filing of the application - Mrs Guthrie was certainly in the last chance saloon. She did not correct all the defects by the time stipulated even though the defects had all been pointed out to her. She gave no explanation for not doing so.[65]Notwithstanding that, the Council went back on what it said in its letter of 8 April 2009, which I have set out in paragraph 21 of this judgment. By their letter of 16 July 2009, the Council gave Mrs Guthrie yet another opportunity to complete her application by reswearing her statutory declaration. This went beyond a reasonable opportunity. Moreover, the Council do not appear to have given any consideration to the question whether by now Mrs Guthrie had had all the time which they could reasonably give her. They gave her a further extension of time as if it were open to them to consider that matter afresh.[66]I have dealt with the question of knowledge on the part of the Church Commissioners above. I do not attach much weight to the fact that the Church Commissioners did not take this point until they were before Mr Blohm QC. At that stage, the legal status of the application under Regulation 5(4) was still in contention. Nor do I attach much significance to the lack of prejudice to the Church Commissioners because of what I would regard as the extraordinary length of time that Mrs Guthrie had to correct her application.[67]In those circumstances, I consider that the time given to Mrs Guthrie was more than reasonable opportunity within Regulation 5(4). The Council was only able to give her a reasonable opportunity. It follows that in my judgment the judge was wrong to conclude otherwise.[68]If, contrary to the view which I have expressed above, the Wednesbury test does apply, then in my judgment the result would be the same. Even if the matter were remitted to the Council to take its decision afresh, it would have to place itself in the position that it was when it allowed Mrs Guthrie to exceed the specified time limits. That is not to say that a registration authority can only ever give one extension of time. An extension of time is different from a reasonable opportunity: I accept that a reasonable opportunity may include more than one extension of time. The registration authority may become aware of circumstances which made an earlier extension too short to be a reasonable opportunity. But here there is no basis for thinking that the Council could, in view of the time that had already been extended, properly come to any different conclusion on 1 May 2009 or thereafter than it did at the time when it set the May 1 2009 deadline. Accordingly there is no purpose in remission to the Council.

Summary of conclusions on both issues

[69]I would therefore dismiss this appeal on the retrospectivity issue and allow it on the reasonable opportunity. In those circumstances, I would allow this appeal.[70]I agree with the judgment of Arden LJ on both issues. Without disagreeing with the substance of her more detailed analysis, I would express my reasons briefly as follows.[71]The answer to the retrospectivity issue has to be found within the Regulations. The CA 2006 itself does not tell one when an application is “made” for the purposes of s.15 but provides in s.24(1) that regulations may make provision as to the “making” of any application. The only provision in the Regulations relating to date is the requirement in Regulation 4(1) that on receiving an application the registration authority must allot a distinguishing number to it and “stamp the application indicating the date when it was received”. That is a strong indication that the application is to be treated as made on the date when it is received. As to the content of an application, Regulation 3(1) provides that an application “must be made in accordance with these Regulations”. For that purpose it must meet all the conditions in Regulation 3(2). An application that does not meet all of those conditions is not “duly made” (the expression in Regulation 5(4)). Regulation 5(4) expressly contemplates, however, that an application that is not duly made at the date of receipt may be put in order within such period as may be allowed by way of reasonable opportunity. An application put in order within that period is duly made. There is no provision for its resubmission, renumbering or further date-stamping at the time when it is put in order. The process contemplated is simply one of putting in order the original application. It is implicit, in my judgment, that an application put in order in that way is to be treated under the Regulations as having been made at the date when it was originally received.[72]The Regulations contain no provision for putting an application in order after such period as may be allowed by way of reasonable opportunity given under Regulation 5(4). If an application is not put in order within that period, the possibility of turning it into a duly made application effective as at the original date of receipt has been lost. If the defects are remedied at a later date, the result will at best be a fresh application to which a new number and new date-stamp should be applied.[73]I agree with Arden LJ that what is a “reasonable opportunity” within Regulation 5(4) is an objective matter that the court must determine for itself, rather than the court having to decide on Wednesbury principles whether the registration authority reasonably considered that the opportunity given was a reasonable opportunity (though I doubt whether that would produce a different answer in the generality of cases). I also agree that the period allowed by the Council to Mrs Guthrie in this case went beyond a reasonable opportunity and that the period within which the original application could be put in order pursuant to Regulation 5(4) had expired by the time the application was resubmitted in May 2009 or the statutory declaration was resworn in July 2009. In the result, the original application was not made in accordance with the Regulations and the opportunity to turn it into a duly made application effective as at the original date of receipt was lost. What was resubmitted in May may have amounted to a fresh application, but it is common ground that any application submitted at that time was too late for the purposes of s.15(4) of the CA 2006.[74]In my judgment nothing turns on the fact that the Council purported to allow Mrs Guthrie further time, in excess of a reasonable opportunity, to put the original application in order. The registration authority cannot give a legally effective extension of time beyond the period allowed by way of reasonable opportunity under the Regulations. Similarly, nothing turns on the fact that the Council did not exercise its power under Regulation 5(4) to reject the application after Mrs Guthrie had failed to put the application in order within the period allowed by way of reasonable opportunity. The failure to put it in order within that period meant that it could not be treated under the Regulations as an application made at the date when it was originally received. It was open to third parties such as the Church Commissioners to take that point, as they did, in the subsequent proceedings.[75]I gratefully adopt Arden LJ’s explanation of the factual background and the relevant legislation. I agree with Arden and Richards LJJ that, for the reasons they give, an application to register a TVG under section 15 of the 2006 Act is made on the date that it is received by the registration authority under Regulation 4 of the 2007 Regulations. As Arden LJ has explained, even if the application is subsequently “put in order” under Regulation 5(4) of the 2007 Regulations, it retains its original date, so that the amendments that are made to the application are to be taken as being back-dated to that original date.[76]I do not, however, agree with Arden and Richards LJJ as to the meaning and effect of Regulation 5(4), and as to the appropriate outcome in this case. For the reasons I shall give, I have concluded that this appeal should be dismissed.

Regulation 5(4) of the 2007 Regulations

[77]It is perhaps useful to set out that provision once again for ease of reference as follows:- “(4) Where an application appears to the registration authority after preliminary consideration not to be duly made, the authority may reject it without complying with paragraph (1), but where it appears to the authority that any action by the applicant might put the application in order, the authority must not reject the application under this paragraph without first giving the applicant a reasonable opportunity of taking that action.”[78]As Mr Jonathan Karas QC has submitted, Regulation 5(4) does two things as follows:- i) First, where an application is not duly made when submitted, it allows the registration authority to reject it without the need for the publicity referred to in Regulation 5(1); ii) Secondly, it provides for some mitigation for the applicant, by saying that “where it appears to the authority that any action by the applicant might put the application in order, the authority must not reject the application under this paragraph without giving the applicant a reasonable opportunity of taking that action”.[79]This second aspect of Regulation 5(4) seems to me to be primarily for the protection of the applicant. If it did not exist, the registration authority would presumably be obliged to reject an application that did not comply with the mandatory requirements of Regulation 3. Indeed, the fact that the registration authority is not required to reject the application if it is non-compliant militates strongly in favour of the construction that I favour as to the effective date of an amended application. Regulation 5(4) would be unnecessary if the scheme of the legislation were to provide for non-compliant applications to be rejected leaving applicants to make fresh compliant applications with later effective dates under Regulation 4.[80]It seems to me that the most common situation that might arise under Regulation 5(4) is that applicants would be aggrieved by a registration authority’s decision to give them too limited an opportunity to put the application in order. In that situation, it would be open to the applicant to bring judicial review proceedings to challenge the authority’s decisions(a) to reject the application because it had not been put in order within the time allowed, and/or(b) as to the appropriate reasonable opportunity to be provided to the applicant.[81]The situation in this case seems to me to be rather less likely to have been contemplated by the legislature, since the main objective of Regulation 5(4) was probably not specifically to protect landowners or objectors. The landowner here made clear in argument that it seeks to challenge, not the Council’s failure to reject the application under Regulation 5(4), but the validity of the application itself. The Church Commissioners say that the Council could not lawfully allow the application to be amended after an “unreasonable opportunity” had been allowed to the applicant to put the application in order, so that the application, as amended, must be declared to be invalid. I shall return to this distinction in due course.[82]The Church Commissioners’ application should, I think, be viewed with some circumspection for the following three reasons:- i) First, as I have said, the provisions of Regulation 5(4) exist primarily to protect the applicant from premature rejection of a non-compliant application. Regulation 5(4) places a limitation on the registration authority’s right to reject the application without giving the applicant a reasonable opportunity to put that application in order. ii) Secondly, it would be surprising if the legislation allowed a landowner or an objector to come in long after the event (as in this case) to invalidate an application which the applicant had every reason to think was valid. This is even more so in a case like this where the Council has set deadlines that the applicant has largely complied with, and then the applicant is faced with the landowner, not the Council, saying that the application was invalid, when the Council had led the applicant to believe that it was valid. iii) Thirdly, had the legislature wanted to give the landowner or objectors the opportunity to challenge the process of putting the application in order, it would have provided for notice of the application to be given to them as soon as it was submitted whether or not the application was thought by the Council to have been duly made. In fact, the scheme of the Regulations only provides for the notification provisions in Regulation 5(1) to kick in once the process allowed for in Regulation 5(4) has been completed. This re-emphasises that the provisions of Regulation 5(4) are intended primarily to regulate the position as between the registration authority and the applicant.[83]I accept, as Arden LJ has said, that the interests of the landowner must be taken into account by the registration authority in deciding what is the “reasonable opportunity” that the applicant should be allowed, but I do not see how the landowner can later be heard directly to challenge the authority’s decision. If the registration authority does reject the application, the landowner may never get to hear of it, since the notifications in Regulation 5(1) will never be triggered. If it does not reject the application, it is open to the landowner and other objectors to challenge the application that has been put in order on its merits. If the legislature had wanted to give the landowner the opportunity to be involved in the pre-notification process, it would have provided for it to be notified.[84]With that introduction, I should return to the distinction between the challenge to the Council’s decision to accept Mrs Guthrie’s “put in order” application as a valid application having been made on 30th June 2008 (which was made), and a challenge to the Council’s decision not to reject Mrs Guthrie’s application under Regulation 5(4) (which was not made).[85]In my judgment, a landowner is entitled to challenge the validity of the application once it is notified under Regulation 5(1). It can certainly argue, as the Church Commissioners have in this case, that the application does not comply with the mandatory requirements of Regulation 3, and that it was made out of time. But if it wishes to challenge the process by which the final application has been accepted by the registration authority, the decision it must challenge is the Council’s decision not to reject the application under Regulation 5(4). The grounds for that application might, for example, be that the authority behaved irrationally in not rejecting the application outright, or that no reasonable registration authority would have allowed the applicant the opportunity it did to put the application in order.[86]Mr Karas contended that the Council had committed a legal error in thinking that 13 months could constitute a “reasonable opportunity”. The question of what was and was not a “reasonable opportunity” was, he submitted not a matter for the Council under Regulation 5(4), but was something that had to be objectively determined. It is here that I disagree.[87]In my judgment, the question of what “reasonable opportunity” is to be allowed to the applicant is pre-eminently a decision for the Council. Nobody else is intended to be involved at that stage as I have explained. The preceding words “where it appears to the authority that any action by the applicant might put the application in order” demonstrate that the process is intended to be in the control of the authority. In my judgment, the authority must decide what is a “reasonable opportunity”, and its decision on that question can only be challenged on Wednesbury grounds (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223), such as that no reasonable authority could have reached such a decision.[88]It seems to me to be quite wrong to allow a landowner after the event to come along and nit pick over whether this or that extension of time allowed by the Council was too lengthy in all the circumstances, unless the extension was irrational or perverse.[89]Perversity is not suggested here, so in my judgment, the appeal fails at this stage. The judge did not need to consider whether, objectively judged, more time than was appropriate was allowed, unless it could be said that the Council had behaved irrationally, which it was not.

Did the Council allow the applicant an “unreasonable opportunity” in this case?

[90]If this question had arisen, which in my judgment it does not, the first question to consider would have been whether it was open to the Council to challenge the judge’s conclusions, when it had not served a Respondent’s notice. Both sides prepared for the appeal on the basis that the question of “reasonable opportunity” was in issue on the appeal. In these circumstances, it would be unduly technical to debar the Council from challenging the judge’s findings in paragraph 26 of his judgment.[91]I agree with Arden LJ that a “reasonable opportunity” is to be construed as indicating a relatively short time. And I also agree that the 13 months ultimately permitted was too long, and even “excessive” as the judge found. But I do not agree that the periods allowed were irrational or perverse so that they are subject to challenge.[92]The critical stages in the communications were as follows:- i) The Council responded promptly to the 30th June 2008 application with its letter of 1st July 2008 allowing 6 weeks for the 3 matters mentioned to be rectified. ii) Mrs Guthrie responded on 11th August 2008 within the 6 week period allowed making a resubmission, but raising further issues concerning her inability to identify the precise date on which access to the Land was restricted. She was obviously confused as to the status of the earlier application concerning public rights of way that had been made on 17th June 2003. iii) The Council then delayed until 28th October 2008 in responding to the revised application. By this time 4 months had expired. It raised four issues, two of which were raised for the first time, namely the scale of the map and the need for the statutory declaration to be re-sworn. The Council said that it would have to reject the application unless the application was put in order, but gave Mrs Guthrie no deadline for that to be done. iv) On 8th December 2008, Mrs Guthrie responded (within a period of 6 weeks, which was what the Council had allowed her the first time), asking for further clarification as to the date, and saying that a Council official had approved the map she had submitted. I do not think that Mrs Guthrie was behaving unreasonably at this stage. v) The Council responded promptly on 22nd December 2008, but again did not set a deadline. vi) On 3rd February 2009, having not heard again, the Council did write imposing a time limit of the 1st March 2009, but saying only “[i]f I do not hear from you by 1st March I shall assume you do not wish to proceed with your application …”, not saying that they required the revised application by that date. vii) On 12th February 2009, the Council did indeed “hear from” Mrs Guthrie saying that the amended application addressing the issues raised would be with the Council “in due course”. viii) In circumstances that neither we nor the judge were told, the Church Commissioners then provided a map for Mrs Guthrie’s use. This was sent to Mrs Guthrie by the Council on 8th April 2009. ix) On 28th April 2009, Mrs Guthrie submitted her revised application dealing with all the points except the re-sworn statutory declaration. x) On 16th July 2009, the Council emailed Mrs Guthrie to say that she was being allowed until 24th July 2009 to re-swear the statutory declaration, and there would then be a decision as to whether the application was “duly made”. xi) On 20th July 2009, Mrs Guthrie hand delivered the re-sworn statutory declaration to the Council.[93]In my judgment, the judge was wrong to think that any estoppel could arise preventing the Church Commissioners complaining about the delay, if they were otherwise permitted to do so. The Church Commissioners had no knowledge of the correspondence that I have recited until much later. They had been given no notice under Regulation 5(1). They cannot possibly be estopped from relying on a lengthy period of delay simply because they were obliging enough to assist Mrs Guthrie by providing her with a compliant map.[94]But I do not think, as I have said, that the delays allowed by the Council were perverse or irrational, even though taken together the period was too long. From Mrs Guthrie’s standpoint, she had much to do to put her application in order. She had to obtain a compliant map, which took time; she had to establish from enquiries of third parties what happened in 2003 as regards the termination of access to the Land; and she had to have another statutory declaration prepared and sworn. As my analysis above has shown, Mrs Guthrie never missed a deadline she was set by the Council. Undoubtedly the Council could and should have moved more quickly, but I do not regard their failure to do so as perverse or irrational. They were dealing with an unrepresented individual to whom the legislation allows some indulgence (see Lewison LJ in R (Newhaven Port & Properties Ltd) v. East Sussex County Council (No.2) [2013] 3 WLR 1433).

Conclusions

[95]For these reasons, I would have concluded(i) that the Church Commissioners were able to challenge the validity of the application on substantive grounds, but not simply on the ground that an unreasonable opportunity, objectively judged, had been allowed by the Council to the applicant in which to put her application in order;(ii) had the Church Commissioners wished to challenge the reasonableness of the opportunity afforded to the applicant to put her application in order, they could only do so on Wednesbury grounds by attacking the Council’s decision not to reject the application under Regulation 5(4), showing, for example, that no reasonable Council could have allowed such a generous opportunity to the applicant or that it was perverse and irrational not to have rejected the application, and(iii) that, whilst the length of time overall that was allowed to the applicant was far too long, the Council did not behave irrationally in allowing the extensions and in dealing with the applicant as it did.[96]Accordingly, I think that the judge was right to dismiss the Church Commissioners’ challenge to the validity of the revised application having been made as at 30th June 2008, and I would have dismissed this appeal.

Cited in 1 later judgment