Agenda item

To consider Legal Advice requested by the Western Area Planning Committee (WAPC) at its meeting dated 6 November 2024, to assist in its determination of an application made under s.15(1) and (2) of the Commons Act 2006 to register land as a Town or Village Green (TVG), Southwick Court Fields, in the parishes of Southwick and North Bradley.

Public Participation

• Mr Francis Morland spoke in objection to the recommendation.
• Mr Barry Jones spoke in objection to the recommendation.
• Mr David Richardson spoke in support of the recommendation.
• Councillor Graham Hill, on behalf of Trowbridge Town Council, spoke in objection to the recommendation.

The Senior Definitive Map Officer, Janice Green, presented the report considering the Legal Advice requested by the Western Area Planning Committee at its meeting date 6 November 2024, to assist in its determination of an application made under S.15(1) and (2) of the Commons Act 2006 to register land as a Town or Village Green (TVG), Southwick Court Fields, in the parishes of Southwick and North Bradley.

Officers including Frank Cain (Employed Barrister, Wiltshire Council), reminded Members of the background to the application including the accepted application plan; the legislation which governs applications; planning trigger and terminating events; the timeline of applications; and the two previous referrals to the Committee, the most recent of which resulted in a deferral to seek a further report on whether the application of January 2020 could be processed with the wider application area examined.

The Counsel’s Advice, as prepared by Douglas Edwards KC of Francis Taylor Building and received on 16 October 2024, was summarised, alongside the advice given by Mr Cain as per Paragraph F 1 to 14 of the Officer’s report. Members were again reminded that although it was open to the Commons Registration Authority (CRA) to reject the Inspector’s Advisory Report and recommendation dated 9 February 2024, it can only lawfully do so if the CRA finds that the Inspector has made a significant error of fact or law. As such, if the Inspector’s recommendation was rejected, the CRA must provide legally valid reasons, supported by evidence, of the error of fact or law, where the CRA’s decision is open to legal challenge.

Members of the Committee then had the opportunity to ask technical questions to the officers. Further clarity was sought on whether there was one application or three separate TVG applications and the timelines of these; the application of natural justice; and the impacts on all parties if the application made on 13 January 2020 were processed as it should have been processed originally.

In response, officers referred to Agenda Supplement 1 and noted that the public inquiry and its notification was based on the accepted revised plan for the third application, and that the documentation showed that there were three separate and identifiable applications, which had been accepted by the applicant.

Officers then emphasised the importance of the principle of public law decisions in that the public and those adversely impacted should have certainty of the legality of a decision made. Furthermore, it was noted that Members should also consider natural justice in respect of the landowner and/or developers of the land when contemplating the option to re-open the original application 13 January 2020.

It was then highlighted that the landowner was entitled to rely upon the officer’s original decision under delegated powers and that by reopening the original application, the landowners and/or developers of the land would be put at risk of further uncertainty, particularly when considering that the application site had been identified as land for the Wiltshire Housing Sites Allocation Plan (WHSAP), that planning permission had been granted against the site, and the length of time that had elapsed since the submission of the original application. As such, Members were advised that officers did not believe that the facts of the case would support the reopening of the original application and that the adverse effect on the third parties would be recognised when determining any further legal action.

The named public speakers as detailed above then had the opportunity to present their views to the Committee.

Following the public forum, officers clarified the procedure for judicial reviews, who could proceed with a claim for such, and who could be liable for any potential costs awarded. It was further confirmed that although there were no specific statutory time limits in respect of a decision, it was a requirement that matters were resolved in a timely manner and that any further delays could cause difficulties for the landowner/developers of the land as well as creating uncertainty in respect of public law decisions. 

Councillor David Vigar, as the Local Unitary Member for the identified locality of the application, then spoke to the application and considered the sequence of events leading to the meeting, the legal advice provided by Counsel and Mr Frank Cain, the impacts of the delays on all parties, and the importance of retaining the green space for the residents of Trowbridge Grove.

A debate then followed where Members discussed the points raised by Cllr Vigar alongside the timeline of the submitted applications, the option to reinstate the original application dated 13 January 2020 in order for it to be processed as it should have been originally, and the direct impacts of such a decision on the landowner/developers of the land.

Councillor Horace Prickett moved to defer the application until February 2025 to ascertain whether the potential for a pre-action protocol being submitted by a third party to make a claim for judicial review against Wiltshire Council pursuant to the decisions made in 2020 would be made. As the motion was not seconded, it was lost.

Members further discussed accepting the Officer’s recommendation, but with the addition of an advisory which made clear that the Committee was making a decision on the application dated 30 November 2020, and did not endorse the earlier decision of the Council for the application dated and lodged on 13 January 2020.

At the conclusion of the debate, Councillor Stewart Palmen moved to accept the Officer’s recommendation, with the addition of an advisory note, seconded by Councillor Trevor Carbin.

Following a vote on the motion, it was then:

Resolved:

That Wiltshire Council as the CRA, ACCEPTS Counsel’s Advice supported by Wiltshire Council Legal Advice, that it was not open to the Inspector to consider the application dated 13 January 2020 and that the decision of the CRA to reject the application dated 13 January 2020 cannot be reversed by the CRA. The Inspector’s recommendation can be relied upon by the CRA in determining the application received on 30 November 2020 and the application to register land at Southwick Court Fields, in the parishes of Southwick and North Bradley, (proceeding under Application number 2020/02TVG), should be rejected on the ground that all the criteria for registration laid down in s.15(2) of the Commons Act 2006 have not been satisfied, for the reasons set out in the Inspector’s Advisory Report dated 9 February 2024.

Advisory Note: This decision is solely related to the application 2020/02TVG in respect of the lower field at Southwick Court Fields and is not intended to represent an endorsement of the decision of 24 February 2020 to return the 13 January 2020 application that also covered the upper field.

Members took a comfort break from 16.48pm to 17.00pm.