NHS Property Services Ltd, R (on the application of) v Surrey County Council & Anor [2016] EWHC 1715 (Admin)

“Each clinical commissioning group has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act”

“The Secretary of State, the Board or a clinical commissioning group may do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any function conferred on that person by this Act.”

“20 The power conferred on a clinical commissioning group by section 2 includes, in particular, power to— (1) enter into agreements, (2) acquire and dispose of property, and (3) accept gifts (including property to be held on trust for the purposes of the clinical commissioning group).” (1) enter into agreements, (2) acquire and dispose of property, and (3) accept gifts (including property to be held on trust for the purposes of the clinical commissioning group).”

“used as of right by a significant number of the inhabitants of the South Leatherhead neighbourhood within the South Leatherhead ward on the Mole Valley District Council………………”

“The Applicant advanced her case on two alternative propositions. Either, a significant number of users come from the locality of the Polling District XB or they come from the neighbourhood bounded by the roads B 2122, A 24, B 2033 within the locality of Leatherhead South Ward of Mole Valley District Council.”

“178. Findings of fact and recommendation (a) I find that a significant number of the local inhabitants of the claimed locality shown within the blue dashed lines on App/1 (being the polling district XB within the Leatherhead South ward of MVDC) indulged as of right in LSP on the whole of the land for the period of at least 20 years ending on or about 9/01/2013. (b) I find that a significant number of the local inhabitants of the claimed neighbourhood shown within the red lines on Appl1 and falling within the locality of Leatherhead South ward also indulged as of right in LSP on the whole of the land for the period of at least 20 years ending on or about 9/01/2013. (c) I find that the objection advanced by the objector that the land was not registrable on the ground of statutory incompatibility was not made out. (d) I find that the claimed locality is not a locality within the meaning of section 15 of the 2006 Act. (e) I find that the claimed neighbourhood is not a neighbourhood within the meaning of section 15 of the 2006 Act. (f) Because the applicant has failed to satisfy all the elements necessary to justify the registration of the land as a TVG, my recommendation to the registration authority is that the application to register (under application number 1869) should be rejected. (a) I find that a significant number of the local inhabitants of the claimed locality shown within the blue dashed lines on App/1 (being the polling district XB within the Leatherhead South ward of MVDC) indulged as of right in LSP on the whole of the land for the period of at least 20 years ending on or about 9/01/2013. (b) I find that a significant number of the local inhabitants of the claimed neighbourhood shown within the red lines on Appl1 and falling within the locality of Leatherhead South ward also indulged as of right in LSP on the whole of the land for the period of at least 20 years ending on or about 9/01/2013. (c) I find that the objection advanced by the objector that the land was not registrable on the ground of statutory incompatibility was not made out. (d) I find that the claimed locality is not a locality within the meaning of section 15 of the 2006 Act. (e) I find that the claimed neighbourhood is not a neighbourhood within the meaning of section 15 of the 2006 Act. (f) Because the applicant has failed to satisfy all the elements necessary to justify the registration of the land as a TVG, my recommendation to the registration authority is that the application to register (under application number 1869) should be rejected. 179 Under reg.9(2) of the 2007 Regulations, the registration authority must give written notice of its reasons for rejecting the application. I recommend that the reasons are stated to be ‘the reasons set out in the inspector's report dated 9/06/2015.’” (f ) SCC’s consideration of the Inspector’s Report and its decision to register the land 49. As will become apparent, some issues arise about the way in which the application was addressed by SCC as RA. 50. The matter was due to be considered by the Planning and Regulatory Committee of SCC on the morning of 23rd September 2015. Before the date of that meeting, the Head of Legal and Democratic Services distributed a report written by Ms Helen Gilbert, SCC’s Commons Registration Officer. It recommended that the application for registration be rejected. 51. Her report recited the application and the fact of the Claimant’s objection. It stated that after a legal opinion had been sought, it was decided to arrange for a non-statutory public inquiry. It then included an analysis and commentary. It addressed the arguments on the meaning of “locality” and “neighbourhood,” and recited the Inspector’s findings of fact and recommendations at IR [178] (set out above). However, it never addressed any of the argument relating to statutory incompatibility, nor advised members of the terms of the Claimant’s objection on this issue, nor of the cases put before the Inspector at the inquiry, nor of his conclusions, save for the short finding at paragraph 178(c). The Inspector’s report was listed as an Annex to Ms Gilbert’s report. 52. As to the issue of neighbourhood, she quoted paragraph [177 (b)] of the IR, and some but not all of paragraph [177(c)]. She then went on to set out the Inspector’s Conclusions and Recommendations on all the issues as he had set out at IR [178], set out above, and then went on “20 Village Green status is acquired over land where a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years. The evidence provided with this application, and the subsequent investigations, show that this criteria” (sic) “has not been met. 21 Therefore, Officers recommend that the application be REJECTED. “ 53. At this stage, Dr Bowes, acting on behalf of the Applicant, sent representations to the Chairman and members of the Committee by email on the morning of 21st September 2015. The email was sent directly to the Chairman, Councillor Hall, and copied to the email addresses of the Committee members and of the officers. A copy was also sent to Messrs Capsticks, who were acting on behalf of the Claimant. Dr Bowes, who is a Councillor on a Borough Council in another part of Surrey, addressed the email to “members of the Planning and Regulatory Committee” and signed it “Ashley.”

“On day three of the hearing of the above claim Mr. Justice Gilbart requested that the Defendant confirm whether the letter of Dr. Ashley Bowes dated 22 September 2015 (at Claim Bundle (“CB”) p.338) and/or the letter of Messrs. Capsticks of 22 September 2015 (CB 348) were provided in paper copy to the Planning and Regulatory Committee at the meeting held on 23 September 2016. We have now taken intructions with regards this matter. We are instructed that Dr. Bowes’ letter was provided to the Committee in paper copy at the meeting; Capsticks’ letter was not. We are instructed that the reasons for this are as follows. Dr. Bowes’ letter was sent under an email of 21 September at 10:59 (CB 336), two days before the Committee meeting. It was sent to all members of the Planning and Regulatory Committee, together with Helen Gilbert, the Defendant’s Commons Registration Officer and Claimant’s solicitors Rachel Whale and Abi Condry of Capsticks. Dr. Bowes also sent an email to the Committee Clerks on 21 September 2015 at 11:15. In that latter email he requested that his letter be printed off and distributed to each Member at the meeting. Both Committee Clerks have now left the employment of the Defendant and their written records, which have been checked, do not confirm that Dr. Bowes letter was in fact distributed to the Committee. However, Mrs. Nancy El-Shatoury, a solicitor of the Defendant who attended the Committee, has been contacted by telephone whilst on leave and she has stated that she recalls that Dr. Bowes’ letter was provided by the Committee Clerk in paper copy to members of the Committee. Messrs. Capsticks’ letter of 22 September 2015 was sent as an attachment to an email sent on 22 September 2015 at 15:30 (CB 341), the afternoon before the Committee meeting. It was sent to the same recipients as Dr. Bowes’ email of 21 September 2015. As the Court was informed on day two of the hearing, the Defendant’s electronic security system blocked the email and directed it to each recipient’s “junk” box. No email was sent by Capsticks to the Committee Clerk or to any officer of the Defendant, other than Mrs. Gilbert. The Capsticks letter was not therefore retrieved by Mrs. Gilbert or any other officer before the Committee meeting, which took place the next morning so as to allow it to be distributed in paper copy. Each member who was sent Capsicks’ email of 22 September 2015 has been contacted to establish whether the email was received and read before the Committee meeting. Cllrs. Beardsmore, Sydney and Munro and Cllr Hall (who addressed the Committee as local member) have confirmed that they retrieved Capstick’s letter from the “junk” box and read the letter before the Committee meeting. Cllrs. Essex, Taylor, Hicks, Mallett and Wilson did not retrieve the letter or do not recall reading the letter before the meeting. Cllrs. Cosser, Coleman and Johnson did not attend the meeting. The two substitute members who joined the Committee for the meeting – Cllrs. Ivison and Jenkins – were not copied into the Capstick’s email and therefore did not receive Capstick’s letter before the Committee meeting. The information set out above extends somewhat beyond what is required in direct response to the Judge’s question. However, we considered it appropriate to draw this information to the attention of the Judge nonetheless.” 57. That account shows that there was a regrettable lapse which meant that one side’s late representation was before the Committee, whereas the other side’s was not. A minority of members had received it by email, although it is not known if any had read it. I shall consider the significance of this issue below. 58. SCC has accepted by subsequent written submission that the Court must assume that the members never saw the Capsticks submission. (It appears that the solicitor at Capsticks sent it from an email address not designated as “Not Junk” on Ms Gilbert’s email software programme.) 59. There is a transcript of the Committee meeting. No-one objected to its being taken into account. Subject to one matter (relating to Dr Bowes’ representations) little turns on what is recorded in the transcript, and I prefer to look at the approved Minutes, which read as follows: “The committee adjourned from 12. 15pm to 12.25pm for a short break. Upon reconvening the Chairman stood down from the committee and the Vice Chairman took the Chair. 31/15 APPLICATION FOR VILLAGE GREEN STATUS: LAND AT LEACH GROVE WOOD, LEATHERHEAD [Item 9] Officers: Helen Gilbert, Commons Registration Officer Stephen Jenkins, Deputy Planning and Development Team Manager Mark O'Hare, Senior Planning Officer Nancy EI-Shatoury, Principal Lawyer Speakers: The Local Member, Tim Hall, registered to speak and made the following points in reference to the application: • Expressed he knows the area well and the green space gets a lot of public use. . • Expressed that an area does not need to have shops to be considered. _ a neighbourhood. It does have sheltered housing, a scout hut and other community facilities. • The area is a cohesive community and has proved the green space is used Commended the application for village green status to the committee. Tim Hall then left the room at 12.28pm. Key points raised during the discussion: 3. The Commons Registration Officer introduced the report and informed the Committee that a neighbourhood must have some coherence to be acknowledged. The officer's recommendation was to reject the application. 4. The Principal Lawyer explained that the Commons Act 2006 was specific about the criteria which need to be met in order for a piece of land to be granted Village Green status. However, the terms locality and neighbourhood are not defined. Case law has developed which must be considered when seeking to define the terms. The Inspector had found that there was little to differentiate the claimed neighbourhood from the surrounding area and little to suggest cohesiveness. The only appeal available to either side following the committee's decision would be Judicial Review. 5. Members felt that an area did not require a particular type of building to be considered a neighbourhood. It could be considered that way if residents wish it to be. It simply required a sense of place. It was pointed out that many recent developments were not built with shops but this should not mean that they could not become a neighbourhood or locality. Members queried whether the Inspector's judgement would result in other urban areas being rejected as neighbourhoods, with only rural areas being judged to have met the necessary criteria. Members highlighted that the plans indicated that there was an infant school, recreation ground, allotment and parking area within the claimed neighbourhood. The Chairman countered that different people will have different definitions of neighbourhoods and that the Inspector had used case law to come to his conclusion. 6. It was noted that the application had met all the other criteria set by the Commons Act 2006. 7. It was noted that the land owner would not be able to develop or sell the land if it were to gain village green status. 8. The Committee was informed that there was a recreation ground close to the proposed village green, it was noted that this did not affect the application under consideration. RESOLVED: Members rejected the officer recommendation to REJECT the application. It went on to APPROVE the application to register the land at Leach Grove Wood as a Village Green for the following reason: Notwithstanding the Inspector's view, Members formed a different impression. Having considered all the evidence before them they came to the view that the criteria laid down by the Commons Act 2006 had been satisfied by the applicant.”

“… [It] is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”

“My Lords, I can moreover arrive at the same conclusion by a differentand more familiar route, of which Ex parte Cunningham, [1991] 4 All E.R. 310 provides a recent example. It is not, as I understand it, questioned that the decision of the Home Secretary on the penal element is susceptible to judicial review. To mount an effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray. I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed. If there is any difference between the penal element recommended by the judge sand actually imposed by the Home Secretary, this reasoning is bound to include, either explicitly or implicitly, a reason why the Home Secretary has taken a different view.”

“24 As already noted, three previous decisions of this House have considered the reasons requirement in a planning context. In this, the fourth, it is I hope convenient to start by assembling a number of the more authoritative and useful dicta from the many cases in the field. I begin with Megaw J's oft-cited judgment in In re Poyser and Mills' Arbitration [1964] 2 QB 467, 478: "Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised." 25 In Westminster” (Westminster City Council v Great Portland Estates plc [1985] 1 AC 661), “Lord Scarman at p 673 set out the above passage and continued: "[Megaw J] added that there must be something 'substantially wrong or inadequate' in the reasons given. In Edwin H Bradley & Sons Ltd v Secretary of State for the Environment (1982) 264 EG 926, 931 Glidewell J added a rider to what Megaw J had said: namely, that reasons can be briefly stated. I accept gladly the guidance given in these two cases." At [34] Lord Brown also endorsed the passage in Bolton Metropolitan District Council v Secretary of State for the Environment (1995) 71 P & CR 309 per Lord Lloyd of Berwick at p 314-5, which includes the important principle that: “What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the 'principal important controversial issues.'”

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

“decision letters such as the ones which are the subject of this appeal are to be considered on a "straightforward down-to-earth reading… without excessive legalism or exegetical sophistication": Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P&CR 263 at page 272-3, per Sir Thomas Bingham MR), applied in, e.g. MR Dean & Sons (Edgware) v First Secretary of State [2007] EWCA Civ 1083, at [43].” (That is also known as First Secretary of State & Anor v Sainsbury's Supermarkets Ltd [2007] EWCA Civ 1083).”

“Section 15 is in Part 1 of the 2006 Act, which extends to all land in England and Wales, with the exception of the New Forest, Epping Forest and the Forest of Dean (section 5), and land includes "land covered by water" (section 61(1)). There is no express exclusion of land held by statutory undertakers for statutory purposes. Therefore any restriction on the scope of section 15 would have to be implicit. NPP argues that statutory incompatibility provides that restriction. In support of its assertion NPP relies on case law in relation to public rights of way and private easements in English law and public rights of way and servitudes in Scots law.”

“there are important differences between private easements over land and public rights over land and between the ways in which a public right of way can come into existence, and the ways in which a town or village green can come into existence. To apply principles applicable to one type of right to another type of right without taking account of their differences is dangerous.”

“Statutory incompatibility: statutory construction 91 As we have said, the rules of prescriptive acquisition apply only by analogy because Parliament in legislating for the registration of town and village greens has chosen similar wording (indulging "as of right" in lawful sports and pastimes) in the 1965 and 2006 Acts. It is, none the less, significant in our view that historically in both English law and Scots law, albeit for different reasons, the passage of time would not give rise to prescriptive acquisition against a public authority, which had acquired land for specified statutory purposes and continued to carry out those purposes, where the user founded on would be incompatible with those purposes. That approach is also consistent with the Irish case, McEvoy v Great Northern Railway Co [1900] 2 IR 325, (Pales CB at 334-336) which proceeded on the basis that the acquisition of an easement by prescription did not require a presumption of grant but that the incapacity of the owner of the servient tenement to grant excluded prescription. 92 In this case if the statutory incompatibility rested only on the incapacity of the statutory body to grant an easement or dedicate land as a public right of way, the Court of Appeal would have been correct to reject the argument based upon incompatibility because the 2006 Act does not require a grant or dedication by the landowner. But in our view the matter does not rest solely on the vires of the statutory body but rather on the incompatibility of the statutory purpose for which Parliament has authorised the acquisition and use of the land with the operation of section 15 of the 2006 Act. 93 The question of incompatibility is one of statutory construction. It does not depend on the legal theory that underpins the rules of acquisitive prescription. The question is: "does section 15 of the 2006 Act apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green?" In our view it does not. Where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes. Where there is a conflict between two statutory regimes, some assistance may be obtained from the rule that a general provision does not derogate from a special one (generalia specialibus non derogant), which is set out in section 88 of the code in Bennion, "Statutory Interpretation" 6th ed (2013): "Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Accordingly the earlier specific provision is not treated as impliedly repealed." While there is no question of repeal in the current context, the existence of a lex specialis is relevant to the interpretation of a generally worded statute such as the 2006 Act.” "Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Accordingly the earlier specific provision is not treated as impliedly repealed." While there is no question of repeal in the current context, the existence of a lex specialis is relevant to the interpretation of a generally worded statute such as the 2006 Act.”

“101 In our view, therefore, these cases do not assist the respondents. The ownership of land by a public body, such as a local authority, which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility. By contrast, in the present case the statutory harbour authority throughout the period of public user of the Beach held the Harbour land for the statutory harbour purposes and as part of a working harbour. 102 In this context it is easy to infer that the harbour authority's passive response to the use by the public of the Beach was evidence of an implicit permission so long as such user did not disrupt its harbour activities. This is consistent with our view of the byelaws which we have discussed above. There has been no user as of right by the public of the Beach that has interfered with the harbour activities. If there had been such an assertion of right it would not avail the public, because the 2006 Act cannot operate in respect of the Beach by reason of statutory incompatibility.”

“96 In this case, which concerns a working harbour, it is not necessary for the parties to lead evidence as to NPP's plans for the future of the Harbour in order to ascertain whether there is an incompatibility between the registration of the Beach as a town or village green and the use of the Harbour for the statutory purposes to which we have referred. Such registration would clearly impede the use of the adjoining quay to moor vessels. It would prevent the Harbour authority from dredging the Harbour in a way which affected the enjoyment of the Beach. It might also restrict NPP's ability to alter the existing breakwater. All this is apparent without the leading of further evidence.”

“77 It is clearly easier to apply the principle that the intention of Parliament was that the general Commons Act should yield to special Acts where the Act governs a specific statutory undertaker with specific functions to be performed over its landholdings. It is rather less easy to apply the principle where one general Act is said to yield to other general Acts, dealing with a local authority function. The notion that the general was intended to yield to the specific is very different from the general yielding to the general. But that glimpse of the rather obvious still leaves some issues as to how the line is to be drawn. 78 In Newhaven, the land in question was obviously central to any changes which might be needed to the operation of the port. Two questions however which did not arise directly in Newhaven were (1) whether public recreational use is incompatible with the exercise of the statutory body's functions where some use can nonetheless be made of the land for its purpose but the range of uses, including the more important ones for its functioning is inhibited; and (2) if no use could be made of that land for the statutory purpose, how significant did the impact have to be on the performance of the statutory function for statutory incompatibility to arise, if other land could be used albeit less satisfactorily.”

“A principal council may acquire by agreement any land for any purpose for which they are authorised by this or any other enactment to acquire land, notwithstanding that the land is not immediately required for that purpose; and, until it is required for the purpose for which it was acquired, any land acquired under this subsection may be used for the purpose of any of the council's functions.”