St John's College, Cambridge, R (On the Application Of) v Cambridgeshire County Council [2017] EWHC 1753 (Admin)

[2017] EWHC 1753 (Admin)Case No CO/632/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/07/2017
Before
SIR ROSS CRANSTON(Sitting as a Judge of the High Court)
Between
THE QUEENClaimantCAMBRIDGESHIRE COUNTY COUNCILDefendantDAVID RHYS HUGHES DAVIESInterested Party
George Laurence QC and Claire Staddon (instructed by Mills and Reeve) for ClaimantPaul Wilmshurst (instructed by LGSS Law) for DefendantHearing Hearing date: 29 June 2017
Judgment ApprovedSIR ROSS CRANSTON:Introduction
[1]This is an application for permission to apply for judicial review. It was ordered for a rolled up hearing on 20 March 2017 by Mrs Justice Lang. The claimant is ordinarily referred to as St John’s College, Cambridge and I will refer to it as “the College” in this judgment. It seeks permission to apply for judicial review of two decisions of Cambridgeshire County Council (“the Council).” The Council is the commons registration authority for its area under the Commons Act 2006 (“the 2006 Act”).[2]The decisions challenged relate to an application by the interested party, Mr Davies, on behalf of the North Newnham Residents Association, to register land belonging to the College as a town or village green under section 15 of the 2006 Act. The land in question is adjacent to Wilberforce Road, Cambridge and the Coton footpath, referred to by Mr Davies as the Meadow Triangle. I shall call it “the land” in this judgment. The first decision challenged is a decision of 19 August 2016 by which the Council gave Mr Davies a further opportunity to take action to put his application in order (“the first decision”). If needs be the College applies for an extension of time to challenge that decision. The second decision challenged is that of 9 November 2016 to treat as duly made Mr Davies’s application dated 21 July 2015 for the registration of the land as a green.[3]The case raises, apparently for the first time, the question whether the correction of defective applications to ensure that they are duly made under the 2006 Act is limited to one occasion only.

Background

[4]On 1 September 2014, the College lodged a statement with the Council as the registration authority under section 15A of the 2006 Act and section 31(6) of the Highways Act 1980, in relation to “Grange Farm, University Sports Ground and adjacent land, Wilberforce Road”. That described area includes the land the subject of this judicial review. The effect of the deposit was to bring to an end any period during which persons may have indulged as of right in sports and pastimes on the land. Notices were erected on the land to this effect.[5]Under a covering letter of 22 July 2015, Mr Davies delivered to the Council by hand a Form 44, Application for the Registration of land as a Town or Village Green. The form itself was dated 21 July 2015 and indicated that it was an application under section 15 (2) of the 2006 Act, i.e. that a significant number of the inhabitants of a locality, or of a neighbourhood within a locality, had indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years. The form gave the name of the applicant as the North Newnham Residents’ Association and an address.[6]Section 6 of the form asks applicants to show “the locality or neighbourhood within the locality to which the claimed green relates, either by writing the administrative area or geographical area by name below, or by attaching a map on which the area is clearly marked.” There Mr Davies wrote:
“See associated map 2 attached where the North Newnham Residents’ Association area is outlined in red and Meadow triangle in blue.”
There was a map to this effect attached.[7]Justification for the application is the subject matter of section 7 of the form. There Mr Davies explained that the membership of the residents’ association covered the households living in an area marked red on the map. He added:
“The area covered by the Residents’ Association is in the northern section of the part of Cambridge generally described as West Cambridge. It is also forms (sic) a small part of the West Cambridge Conservation area and the Ward of Newnham but has its own identity within that, as evidenced by the Residents’ Association and its activities”
. The text for section 7 added that a significant number or those living in the area had used the land for sports and pastimes for at least 20 years and it was valued as a neighbourhood facility.[8]With the form were 17 witness statements from other residents in the area, describing their use of the land.[9]In a short email of 30 July 2015 the Council acknowledged that it had received the application.[10]Some 6 weeks later, on 11 September 2015, the application was returned to Mr Davies: the Council’s letter explained that only seven of the user evidence forms demonstrated 20 or more years of use and that was not a sufficient basis to recommend registration as a village green. The letter concluded by asking whether there was more user evidence and explained that the application could be resubmitted. It is common ground that the Council was wrong to return the application on this basis. In its defence the government guidance in this regard is misleading, as will be seen below. User evidence goes to the merits of an application, to be considered pursuant to regulation 6 of the 2007 Regulations, not to the procedural issue of whether an application is duly made.[11]On 9 October 2015 Mr Davies resubmitted the application with additional witness statements. The Council acknowledged receipt on 9 October 2015. This date, 9 October 2015, is the date of the Council stamp “Commons Registration Act 1965” on the form which Mr Davies had submitted first on 22 July and resubmitted that day, the 9 October. As the Council later acknowledged the application should not have been stamped with the 9 October date, but should have had the date 22 July 2015 affixed to it, the day it was first received.[12]Some five and a half months later, on 24 March 2016, the Council sent the College a copy of the notice it had placed the previous day on the land as required by the 2006 Act. It also informed the College that the notice appeared in the local press. Attached to the notice was a copy of a map.[13]The following month, 21 April 2016, the College’s solicitors wrote to the Council asking, firstly, for an explanation of the discrepancy between the date of the application form, 21 July 2015, and the date of the stamped receipt, 9 October 2015. The letter also referred to the landowner’s statements made by the College and deposited with the Council in early September 2014 under section 15A of the 2006 Act and section 31(6) of the Highways Act 1980. These showed, it said, that the land was not being used as of right on 9 October 2015. The letter invited the Council to reject the application and for a speedy response to avoid the need for the College to make a formal objection to the application.[14]There was no response, so the solicitors sent an email on 26 April reiterating the points already made.[15]The following day, 27 April, the Council responded. The explanation for the lapse of time between 21 July 2015 and 9 October 2015 was “to allow the applicant to put his application in order”. The form, it was said, had been incorrectly stamped with the 9 October date. The application therefore fell within the grace period of 12 months from the deposit of the landowner’s statements. In a further email of 28 April the Council stated that although Mr Davies had used the word “resubmitted” the Council considered that the relevant date for the application was when it was first submitted on 22 July 2015.[16]The College’s solicitors lodged a formal objection statement on 4 May 2016. Mr Davies’ application was not duly made, it said, for a number of reasons. These were, first, that the application required an Ordnance Survey map; secondly, that needed to be signed on the back as an exhibit to the statutory declaration; and thirdly, the basis of the application should have been stated as section 15(3), not section 15(2) of the 2006 Act. Under the heading “Particulars”, the formal objection added that the application was not duly made because section 6 of Mr Davies’ Form 44 showed the neighbourhood relied on but not a locality as required. Moreover, the neighbourhood identified was not in law or fact a neighbourhood.[17]After further correspondence on 18 May 2016, the College’s solicitors wrote, in a constructive manner, suggesting a way forward, subject to agreement. That was that the applicant needed to correct the application, and that he should be afforded a reasonable period, 21 days was suggested, within which he must do that. The College would then be in a position to object to the application after the Council re-advertised it.[18]Mr Davies emailed the Council on 30 May 2016 inquiring what was happening.[19]The Council wrote to the College on 6 June 2016 agreeing with the course it had proposed on 18 May. The same day it wrote to Mr Davies, advising him of the three details identified in the College’s formal objection which needed correction to ensure that the application could be considered as duly made. Mr Davies was also sent the College’s formal objection and asked for comment. By oversight, as the Council now puts it, the Council did not raise with Mr Davies the locality issue which had been set out in the particulars. No date was set for the return of the amended application because of the need to make inquiries about trigger and terminating events under section 15C of the 2006 Act.[20]The following day the Council accepted in correspondence with the College’s solicitors that the application had not been duly made.[21]On 23 June 2016 the Council set 25 July 2016 as the date for Mr Davies to put his application in order.[22]Mr Davis submitted his changes on 21 July 2016. In his covering letter he stated that the original application, by reference in section 6 of the form to the map, and the narrative at section 7, relied on the localities of Newnham Ward and Newnham Conservation Area.[23]A few days later the Council informed the College that it regarded the application as having now been duly made.[24]On 1 August 2016 the College took issue with this: this was a neighbourhood case and Mr Davies had failed to specify a locality in section 6 of the application form. No more time should be given to Mr Davies to correct this.[25]Nonetheless, the Council wrote to the College on 19 August 2016 that the application could not be regarded as duly made, and that the applicant should have specified on the form itself that he was claiming a neighbourhood within a locality. The letter added that it was fair and reasonable to allow the applicant to amend the application form. Mr Davies was written to along similar lines the same day, and the form was returned to him. He was told that he had until 2 September to make the changes.[26]On 26 August 2016 the College’s solicitors refuted the Council’s claim that it could allow Mr Davies a further opportunity to amend the application. The solicitors would take instructions from the College and advice from counsel and in the meanwhile sought confirmation that the Council would take no further action on the application until it could make submissions. A few days later, on 30 August, the College’s solicitors wrote again that on reflection they had decided to make substantive comments later, once Mr Davies had responded to the Council’s letter of 19 August.[27]Mr Davies made an amendment regarding locality by adding a rider to section 6 of the form:
“The neighbourhood within a locality in respect of which the application is made is the neighbourhood of the North Newnham Residents Association in the locality of Newnham ward in the city of Cambridge”
. On 30 August 2016 he returned the form with the amendment. It was received by the Council the following day.[28]After the College inquired whether Mr Davies had responded, the form as amended was sent to the College on 5 September. On 7 September the College emailed for the Council’s confirmation that it was waiting for its comments before treating the application as duly made. These would follow once counsel’s advice was received. The Council replied by email the same day, confirming that it “will wait for your response before doing any further work on this application”.[29]A fortnight later, in a letter of 15 September, the College wrote, after receiving counsel’s advice, that the Council in its opinion had no jurisdiction to allow a further opportunity to correct the neighbourhood/locality issue. The application had not been duty made. The letter invited the Council to reconsider.[30]On 9 November 2016 the Council informed the College that in its view the College’s jurisdiction argument was wrong and that the application was duly made. The matter would proceed.[31]Following pre-action correspondence this application for judicial review was filed on 31 January 2017.

Legal framework and guidance

[32]Section 15(1) of the 2006 Act provides that any person may apply to the commons registration authority to register land covered by the legislation as a town or village green where subsections (2), (3) or (4) apply. In passing it can be noted that, a result of amendments in 2013, section 15C excludes the right to apply under section 15(1) if specified trigger events occur, although the right to apply becomes exercisable again if a specified terminating event occurs against its corresponding trigger event.[33]Section 15(2) applies 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, and continue to do so at the time of the application. Vos J drew together the authorities on the meaning of locality and neighbourhood in Paddico (267) Limited v Kirklees Metropolitan Council [2011] EWHC 1606 (Ch), [91] (on appeal [2014] UKSC 7; [2014] AC 1072), but this goes to merits and has no direct application in this case.[34]Section 15(3) applies where “(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; (b) they ceased to do so before the time of the application…; and (c) the application is made within the relevant period”. The “relevant period” is defined in subsection (3A) as the period of one year beginning with the cessation mentioned in subsection (3)(b). For present purposes there is no need to set out section 15(4).[35]The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007, 2007 SI No 457 (“the 2007 Regulations”) apply to applications to register land as a town or village green under section 15 of the 2006 Act: reg. 2(1). Regulation 2(4) provides that where a registration authority has to stamp a document, it has to affix its official stamp “which must bear the date mentioned in the requirement or (where no date is mentioned) the date when it was affixed”.[36]Regulation 3(2)(a) states that an application for registration must be made on form 44, which is set out in the schedule to the Regulations. It must be supported by a statutory declaration as set out in form 44 and such further evidence as the registration authority requires: reg. 3(2)(d). The procedure on receipt of applications is set out in regulation 4: on receipt of an application the registration authority must allot the application a distinguishing number, mark it with that number and stamp it indicating that date: reg. 4(1)(a)-(b).[37]Regulation 5 contains the procedure in relation to applications to which section 15(1) of the 2006 Act applies. “(1) Where an application is made under section 15(1) of the 2006 Act to register land as a town or village green, the registration authority must, subject to paragraph (4), on receipt of an application—(a) send by post a notice in form 45 to every person (other than the applicant) whom the registration authority has reason to believe (whether from information supplied by the applicant or otherwise) to be an owner, lessee, tenant or occupier of any part of the land affected by the application, or to be likely to wish to object to the application;(b) publish in the concerned area, and display, the notice described in sub-;paragraph (a), and send the notice and a copy of the application to every concerned authority; and(c) affix the notice to some conspicuous object on any part of the land which is open, unenclosed and unoccupied, unless it appears to the registration authority that such a course would not be reasonably practicable.”[38]Under regulation 5(2) the notice sent under paragraph (1)(a) must allow an interval of not less than six weeks from the latest of the(a) the date on which the notice may reasonably be expected to be delivered in the ordinary course of post to the persons to whom it is sent, or(b) the date on which the notice is published and displayed by the registration authority.[39]Regulation 5(4) provides:
“(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.”
[40]Once a registration authority is satisfied that an application is duly made it takes the notification and advertising steps which are set out in regulation 5(1). It is not at this point concerned with the merits of the application. Where action to rectify a not duly made application is successfully taken by the applicant under regulation 5(4), the corrected version has retrospective effect: Church Commissioners for England v Hampshire County Council [2014] EWCA Civ 634; [2014] 1 WLR 4555, [34]-[44], [70]-[72],[75]. The Court of Appeal has held that regulation 5(4) must be construed so that the reasonable opportunity provided involves only a relatively short period of time: [59], per Arden LJ, [90], per Vos LJ.[41]Regulation 6 deals with the consideration of the merits of an application once it has been duly made, notified and advertised. Under regulation 6(1) this must occur as soon as possible after the date by which statements in objection have to be submitted. The applicant receives the objections the registration authority intends to consider, and under regulation 6(4) she must be given a reasonable opportunity of dealing with the matters raised by the objectors and other matters which appear to the authority to afford possible grounds for rejecting the application.[42]Regulation 10 provides for the description of land which is the subject of an application. As far as relevant regulation 10(2)-(3) is as follows:
“(2) Land must be described for the purposes of any application- (a) by an Ordnance map accompanying the application and referred to in that application… (3) Any Ordnance map accompanying the application must- (a) be on a scale of not less than 1:2,500; (b) show the land to be described by means of distinctive colouring; and (c) be marked as an exhibit to the statutory declaration in support of the application.”
[43]The Department for Environment, Food & Rural Affairs published guidance in October 2013 entitled Section 15 of the Commons Act 2006 Guidance notes for the completion of an application for the registration of land as a town or village green outside the pioneer implementation areas. Paragraphs 51-54 are relevant for present purposes. “51. The registration authority will stamp a date of receipt to your application when you send it to the registration authority. That date may be important, because it is the date against which the time limits on applications in Section 15(3) apply. The registration authority will formally acknowledge receipt of your application provided the right to apply has not been excluded in relation to the land under Section 15C and Schedule 1A. The registration authority will need to seek confirmation from the Local Planning Authorities for the land, as well as the Planning Inspectorate, on whether trigger or terminating events have occurred in relation to the land before it can formally acknowledge receipt of the application.52. If a receipt is not received within thirty working days you should contact the registration authority. Sometimes the registration authority may decide that the application is incomplete or otherwise unacceptable, but consider that it could be put right. If that happens, the registration authority may return the application to you and allow you to amend and resubmit it with the necessary changes.53. The registration authority will now look carefully at the evidence in your application. It may decide that your application cannot be accepted (e.g. because the evidence is clearly insufficient to support the application, or because a ‘landowner statement’ under Section 15A(1) of the 2006 Act was deposited) and will reject your application without taking any further steps.54. Otherwise, the registration authority will publicise your application (for example, by sending notice of the application to the landowner and publishing the notice in the local newspaper) and consider it further in the light of any objections received. You will be supplied with copies of all objections which are to be considered and will have a reasonable opportunity of answering them. If you ask to make any significant amendments to your application at this stage, and the registration authority agrees to accept the amendments it may be necessary for the authority to publicise the application again.”[44]Both parties submitted that the guidance was in some respect misleading both for applicants and registration authorities. I accept their submissions, although in my view the Council was correct in cautioning that any guidance of this nature cannot purport to be definitive or to cover all eventualities. Paragraph 53 is incorrect in suggesting that an authority should look carefully at the evidence beforeadvertising the application, whereas consideration of the merits comes later. (Of course it may be that a registration authority will give informal advice on evidence.) Paragraph 54 though correct as far as it goes refers (without identifying it specifically) only to paragraph (a) of regulation 6(4). The authority also has an independent duty under regulation 6(4)(b) to consider whether there are or are not such grounds and, if there are, to give the applicant a reasonable opportunity to deal with them. Following the hearing, at Mr Laurence QC’s very welcome initiative, both he and Mr Wilmshurst helpfully redrafted the guidance so that it more accurately represents the law. The redrafted guidance is an annex to this judgment.

Interpretation of regulation 5(4)

[45]The College’s case is that regulation 5(4) confers only a limited possibility of correction for defective applications under the 2006 Act. When it appears to a registration authority such as this Council that an application has not been duly made, an applicant has one reasonable opportunity to take the action which it appears to the authority might put the application in order. The Council’s only jurisdiction under regulation 5(4) is to consider once, after preliminary consideration has been given to an application which appears not to be duly made, whether any action and if so what action might put it in order. If a registration authority mistakenly fails, first time round, to identify all the action required to put an application in order, it cannot later be allowed to say that, because the opportunity did not enable the applicant to put the application fully in order, there should be another opportunity.[46]In other words the College’s case is that the registration authority must comprehensively identify the action an applicant is required to take to put the application in order, and the applicant has to correct the defects so identified within the short period of time which the authority must specify. Mr Laurence accepted that where the registration authority gives an applicant what it comes to think was not a sufficient period of time to take action, it can extend the time for taking action. What it cannot do, however, is to give the applicant a separate, later opportunity to take some different action.[47]In Mr Laurence’s submission, this followed both from the words of regulation 5(4) and the underlying legal policy. Under the regulation the registration authority can give the opportunity to correct “after preliminary consideration”, and in his submission one can only give preliminary consideration once. Further, regulation 5(4) provides for giving the applicant a reasonable opportunity of taking “that action”, reinforcing the once only opportunity. The intention of the draftsman, in Mr Laurence’s submission, was that registration authorities must scrutinise applications properly the one time with a view to identifying every action needed to make them compliant with the Regulations.[48]As to policy, Mr Laurence contended that if regulation 5(4) were interpreted otherwise it would mean that a registration authority could give an applicant a series of successive opportunities to remedy a defective application. That could be over potentially a very protracted period of time, without the landowner himself having in the ordinary case any part to play in the process. The process could go on for years. The landowner may have taken steps in the erroneous belief that its land was free from the risk of registration as a green. It was therefore a serious matter for a landowner to be confronted, some considerable time after the registration authority first received an application, with a corrected version taking effect retrospectively. Mr Laurence underlined how a landowner’s plans for development could be stalled, with serious financial consequences.[49]In my view the College’s interpretation of regulation 5(4) does not accord with the underlying legal policy, is contrary to its language, and is unrealistic as a matter of practice.[50]First, the regulation must be read against the background of what Lord Hoffmann characterised as a simple and informal process in Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 AC 674, [61]. That to my mind this means that the threshold for regarding an application as duly made is relatively low.[51]Secondly, the regulation in my view falls naturally into two limbs:
“[limb 1] 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 [limb 2] 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.”
[52]The first limb is intended to cover situations where, on a preliminary consideration, the application is seriously defective and as such can be summarily rejected. The applicant may be advised to start again. The registration authority has a discretion in this regard. In reaching its decision it will balance its obligation to accept a valid application against its obligation to reject an application which does not comply with the statutory requirements: Church Commissioners for England v Hampshire County Council, [50], per Arden LJ. A decision to reject is subject to judicial review on ordinary public law principles.[53]The second limb of regulation 5(4) is designed to cover situations where, as the words provide, it appears to a registration authority that, albeit that the application is defective, it can be put right. In that event the authority must offer the applicant a reasonable opportunity of taking the remedial action identified. Preliminary consideration does not enter into consideration under the second limb. There is nothing in the language to suggest that the applicant can be afforded only one opportunity to remedy a not duly made application. Regulation 5(4) would have undesirable consequences if it were to be read in this way.[54]Take the example of the applicant who happens to lodge her application to register on the eve of the expiration of the one year period mentioned in section 15(3)(c) of the 2006 Act, with an Ordnance map to the scale of 1: 50 000, and not the 1: 25 000 required by regulation 10(3)(a). The Council officer points this out and gives her the opportunity to resubmit the application with a map to the correct scale. She obtains the correct map to the larger scale and returns the next day, but in the rush has forgotten to mark the map as an exhibit to her statutory declaration as required by regulation 10(3)(c). Again the Council officer spots the defect and the next day it is readily remedied and resubmitted. On the College’s interpretation of regulation 5(4) this second opportunity for the applicant to remedy her application would be forbidden, the application would be rejected and any new application would fall outside the time limit laid down in section 15(3)(c). That cannot be right when applications for registration are often being made by laypeople.[55]Or to continue with this example, assume the applicant did mark the Ordnance map correctly as an exhibit to her statutory declaration when it was resubmitted. The applicant has had one opportunity to ensure that her application is duly made. The Council sends the landowner the Form 45 notice under regulation 5(1) of the 2007 Regulations, and displays and advertises it as required by that regulation. In its formal objection the landowner identifies (as in this case) a defect in the Form 44 which the Council has not spotted. On the College’s interpretation, the Council could not offer the applicant the chance to remedy the defect - even though this might be easily be done - because it would be a second opportunity and only one is allowed.[56]Notice as well that this example puts paid to the College’s submission that offering the applicant the opportunity to remedy the defect more than once can prolong the process interminably to the detriment, potentially enormous, of the landowner. First, there are time limits built into regulation 5. In this respect I accept Mr Laurence’s submission that the wording of regulation 5(1), “on receipt of”, means that notification, display and advertisement of an application must follow soon after receipt, subject to regulation 5(4). Further, consistently with Church Commissioners for England v Hampshire County Council, applicants may be given only relatively short periods under regulation 5(4) within which to remedy defects. In this case the College suggested that Mr Davis should be given 21 days, although he was given a month, which in the circumstances seems appropriate.[57]Secondly, where a registration authority has not identified defects which render an application not duly made, the landowner has every incentive to uncover them after receiving the Form 45, in the hope that the authority might consider that, in light of their nature, the applicant should not be given the opportunity to remedy them, or that if she is given the chance, she will either fail to correct the defects, or fail to do this timeously. In other words, the bleak picture drawn by the College of endless delay if regulation 5(4) is interpreted in the way the words suggest, and which I regard as the correct interpretation, does not reflect the reality.

First decision: the further opportunity to remedy of 19 August 2016

[58]Given my interpretation of regulation 5(4), there was no objection to the Council offering Mr Davies the opportunity to correct his application for a second time. To say the least, the circumstances in which this occurred were unfortunate: the Council’s “oversight” of the locality point followed a series of delays and errors in the handling of Mr Davies’ application. I accept Mr Laurence’s submission that a registration authority should without delay properly scrutinise every application it receives in order to determine whether the requirements of regulations 3 and 10 have been complied with, if necessary taking legal advice.[59]In fact the application as amended and resubmitted by Mr Davies in July 2016 was in my judgement duly made because there had never been any defect about the statement of locality. The original Form 44 submitted the previous year complied in my view with the requirement to state the “locality” or “neighbourhood within a locality”. Both the College and the Council were in my view wrong in August 2016 in taking the contrary view. The Council no longer takes that position although the College still does.[60]The College’s view, as submitted by Mr Laurence, is that even section 7 of the form, mentioning “the part of Cambridge generally described as West Cambridge”, “West Cambridge Conservation area”, and “the Ward of Newnham”, does not identify these as localities. Rather, they are named as areas in which the neighbourhood is located.[61]In my view this approach to reading Mr Davies’ application form is unduly legalistic. It treats the form “as though it is a pleading in private litigation”, an approach deprecated by Sullivan J in R (on the application of Laing Homes Ltd) v Buckinghamshire CC [2003] EWHC 1578; [2004] 1 P & CR 36, [142]. Albeit that the contents of section 6 alone were not adequate in stating locality, the form Mr Davies submitted to the Council, when read as a whole, set out the claimed locality or localities.[62]I accept Mr Wilmshurst’s submission that any reasonable reader of the application form would have understood that the claimed locality was located within(a) the city of Cambridge and, at the very least,(b) the electoral ward of Newnham. (On the state of the authorities the conservation area cannot constitute a qualifying locality.) That justification for registration is in my view acceptable. At the merits stage, of course, it may be that the claimed area is not a valid neighbourhood within a locality. But the advantage of not taking a legalistic approach at the application stage is that it reduces the chances of satellite litigation such as this, and enables cases to be dealt with on the merits rather than on procedural technicalities.[63]There is no need, therefore, to consider Mr Davies’ letter of 21 July 2016 and whether it could remedy any defect in Form 44 as to locality. The College strongly contended that under regulation 5(4) an applicant cannot unilaterally amend defects in her application. In Mr Laurence’s submission the only power of correction lies at the initiative of the registration authority and unilateral amendment by an applicant is not possible.[64]Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 AC 674established that registration authorities are to be guided by the general principle of being fair to those whose interests might be affected by their decision. Consistently with that it may be that amendments by an applicant at her own initiative should be allowed. In this case I accept Mr Wilmshurst’s submission that it is impossible to see how, as a matter of fact, any unfairness could arise to the College if the Council treated Mr Davies’ letter of 21 July 2016 as an application for an amendment, or dealt with the matter on the basis of the letter: there were never any surprises for the College.[65]But there is no need for me to decide the matter. First, I regard Mr Davies’ letter as an explanation of what he had laid out in section 7 of the form as originally drafted, not as an attempt to amend the form. Secondly, if that is wrong, given the view I have taken of the statement of locality in the original application, there is no need to look to Mr Davies’ covering letter of 21 July 2016. The common law is best developed in the context of particular facts when a decision is demanded. Mr Laurence’s issue of unilateral amendment is best left for another day.

The second decision of 9 November 2016: to treat Mr Davies’s application as duly made

[66]For the reasons I have given Mr Davies’s application was duly made once he had remedied the defects in July 2016. There was no need for him to further amend the application as regards locality. So the Council’s decision of 9 November 2016 to treat Mr Davies’s application as duly made was correct, albeit for the wrong reasons.[67]For completeness I should add that I accept Mr Laurence’s submissions that there was no delay on the College’s part in challenging the Council’s decisions. The Council agreed, especially in its email of 7 September 2016, that it “will wait for your response before doing any further work on this application.” Given that this was a response to an email from the College asking for the Council’s confirmation that it was waiting for its comments before treating the application as duly made, I cannot regard this (as Mr Wilmshurst seemed to suggest) as a statement by the Council undertaking not to proceed to consider the application on the merits. If necessary I would have extended time so that the College could challenge the 19 August 2016 decision.

Conclusion

[68]Although I grant permission to the College to apply for judicial review (this was a rolled up hearing), I dismiss the application for the reasons given.

Amended guidance (see paragraph [44] above)

[51]The registration authority will mark your application with a distinguishing number and will stamp a date of receipt to your application when you send it to the registration authority. That date may be important, because it is the date against which the time limits on applications in Section 15(3) apply. The registration authority will formally acknowledge receipt of your application provided the right to apply has not been excluded in relation to the land under Section 15C and Schedule 1A. The registration authority will need to seek confirmation from the Local Planning Authorities for the land, as well as the Planning Inspectorate, on whether trigger or terminating events have occurred in relation to the land before it can formally acknowledge receipt of the application.[52]If a receipt is not received within thirty working days you should contact the registration authority. Sometimes the registration authority may decide after preliminary consideration that the application is incomplete or otherwise unacceptablenot duly made, but consider that it could be put right. If that happens, the registration authority maywill return the application to you and allow you a reasonable opportunity to amend and resubmit it with the necessary changes. Provided you take the action prescribed by the registration authority, within the time prescribed by it, your application ought now to be in order.[53]If you fail to take the prescribed action within the time so specified the registration will ordinarily reject your application without taking any further steps. Likewise, if the registration authority does not consider that you can put a defective application in order at all, it will reject your application without taking any further steps. The registration authority will now look carefully at the evidence in your application. It may decide that your application cannot be accepted (e.g. because the evidence is clearly insufficient to support the application, or because a ‘landowner statement‘ under Section 15A(1) of the 2006 Act was deposited) and will reject your application without taking any further steps.[54]Otherwise, the registration authorityIf the registration authority is satisfied that your application is, or has been rendered, “duly made”, it will publicise your application (for example, by sending notice of the application to the landowner and publishing the notice in the local newspaper) and consider it further in the light of any objections received. You will be supplied with copies of all objections which are to be considered and will have a reasonable opportunity of answering them and of dealing with any other matter which appears to the registration authority to afford possible grounds for rejecting your application. If you ask to make any significant amendments to your application at this stage, and the registration authority agrees to accept the amendments, it may be necessary for the authority to publicise the application again.

Cited in 2 later judgments