In R (NHS Property Services Ltd) v Surrey County Council  EWHC 1715 (Admin), the High Court considered the importance of giving reasons for a decision to register land (Leach Grove Wood in Surrey) as a town or village green under section 15 of the Commons Act 2006. The section 15 criteria for registration are that a significant number of the inhabitants of any locality, or neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for at least 20 years. At all relevant times, the land had formed part of land held by one of the various NHS bodies for defined statutory health-related purposes.
The facts of this case concerned the council’s registration of land as a village green, following receipt of an application from a local resident. The claimant owner of the land, NHS Property Services Ltd, objected to the application, raising various arguments including that there was an incompatibility between the statutory purposes for which the land was held and registration as a green. Having sought legal advice, the council arranged for a non-statutory inquiry to be held. The inspector who conducted the inquiry recommended that the application be refused. Although he considered that there had been the indulgence as of right in lawful sports and pastimes for at least 20 years on the land, he held the applicant had not identified a “locality” or alternatively a “neighbourhood within a locality”.
His report was considered by the council’s Planning and Regulatory Committee. That committee concluded that the criteria were met, on the basis that the “neighbourhood within a locality” test was passed. However, the committee’s reasons for granting the application did not address the argument about statutory compatibility at all. The report that was presented to members was silent on the statutory compatibility issue. Further, it did not advise members of the terms of the objection on the issue or the inspector’s conclusions.
As a result of the committee’s decision, the land was registered as a village green on 6 October 2015. The claimant therefore issued proceedings challenging the decision by way of judicial review.
Issues raised by the case
The case raised the following key issues:
- Was the council under a duty to give reasons for its decision to register the land? If so, what standard of reasoning was required?
- Did the council give adequate reasons for finding that the section 15 criteria were met?
- Given the absence of any consideration or reasoning in relation to the question of statutory incompatibility, had the council shown there was no basis for concluding that there was statutory compatibility?
Was the council under a duty to give reasons?
Given that there is no statutory duty to give reasons, it was necessary to look at the European Convention on Human Rights (ECHR) and to the common law to see if a duty exists. Article 6 of the ECHR provides that in the determination of their civil rights and obligations or of any criminal charge, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. For more information, see Practice note, Article 6 of the ECHR: right to a fair hearing.
The court was satisfied that the effect of a section 15 registration is a determination of civil rights or obligations, given that registration means the landowner can no longer use the land for any purpose inconsistent with use as a village green. (The effect of registration is also that a criminal offence is committed if a person interrupts its use or enjoyment as a place of exercise and recreation (section 2, Commons Act 1876).) The court considered that, since the registration of land means the landowner is at risk of losing his freedom to do as he wishes with his land, reasons had to be provided to enable him to know whether the decision was made on lawful grounds (and to determine whether grounds of challenge exist). Therefore, in order to comply with Article 6 of the ECHR and with common law, reasons had to be given.
The High Court considered that the starting point must be that the reasons given are intelligible and deal adequately with the substance of the arguments advanced. Given the principle that the reasons must enable the persons concerned by the decision to know whether the tests set by law have been addressed, and addressed lawfully, the council needed to set out whether the applicant for registration had shown that the section 15 criteria had been met and why the criteria had, or had not, been met. In a case where an objection was made on a ground known to law, the council should state whether that objection was well-founded and why it was, or was not, well-founded. The losing party should be left knowing why he had lost and the legal justification for rejecting his submissions.
Did the council give adequate reasons for finding the section 15 criteria were met?
The court considered that an obvious and substantial omission in the council’s reasons was its failure to deal with the issue about statutory compatibility. The committee never considered the question of statutory compatibility and gave no reasons for rejecting the claimant’s case as an objector. The objection on the grounds of statutory incompatibility was well founded. The land in question was held by various NHS bodies for defined statutory purposes relating to the provision of health services. These statutory purposes did not include recreation or indeed anything outside the scope of provision of health facilities. The erection of buildings or facilities to provide treatment, or for administration of those facilities or car parking to serve them, plainly conflicted with recreational use. The question to be determined was not the factual one of whether the land had in fact been used to erect hospital buildings or for other hospital-related purposes but only whether there was incompatibility as a matter of statutory construction. In the court’s judgment, there was a conflict between the statutory powers in the case and registration of the land as a village green.
Decision of the High Court
On the basis that the council never considered the issue of statutory compatibility, the court made an order quashing the registration of the land as a village green and requiring the application for registration to be re-determined. The interested party was granted permission to appeal the finding that the statutory powers under which the land was held would prevent registration.
Conclusions as to what a decision-maker should provide by way of reasons?
Where a duty to give reasons arises, the extent of that duty has been usefully summarised by Lord Brown in his summary of case law in South Bucks District Council and another v Porter  UKHL 33, to which the High Court referred in this case. Although these observations were made in a planning context, they are a good general statement about the degree of particularity a court will seek in asking whether the reasons given for a decision are adequate in the circumstances in which they are given. They can be summarised as follows:
- Reasons for a decision must be intelligible and must deal with the substantial points that have been raised to enable the reader to understand why the matter was decided as it was and the conclusions that were reached on the principal important controversial issues.
- Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues to be decided. 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 inferences 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 persons (in that case, 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 on such future 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.
For more information on the duty to give reasons, which explains the increasing trend in common law for decision-makers to give reasons although there is no general right for reasons to be given in administrative law decisions, see Practice note, Duty to give reasons.