A quick email to Mr Ahmed Khan has solicited the news that he has lodged a legal response to the Common Land and Town and Village Green Committee report. He kindly included the text in his reply, and I have outlined it below. It is extremely detailed, but the crux of the matter is that he and his advisers feel the Council have selectively quoted from his application in the report, the aim being to stop the request before it even reaches the committee stage.
I was also given a curt reminder that the “Alliance” (http://www.southtynesidealliance.info) has no mouth piece, official or unofficial (http://curly15.wordpress.com/2008/01/07/mr-khans-application-for-townvillage-green-status). My apologies Mr Khan, but it wasn’t my assertion. Looks like I’ve managed to annoy somebody on both sides of the fence. Anyway, thanks for the email and the report.
Here it is in its entirety. It’s a complicated argument, but at least the Council is being challenged in its attempts to prevent the matter being debated at committee stage.
RE: APPLICATION TO REGISTER LAND KNOWN AS NORTH MARINE PARK , SOUTH MARINE PARK , BENTS PARK AND BENTS PARK RECREATION GROUND AS A TOWN/VILLAGE GREEN
We have been instructed by the Applicant in the above application to make the following representation on his behalf. I have had sight of your officer’s report to committee dated the 9th January 2008 (Contact Officer Nicole Johnson), and this representation relates to issues contained within that report, and are not intended as a further submission on the substantive case being put forward by the Applicant. Whilst I generally agree with much of your officer’s interpretation of the new process and procedures as set out in her report, she has in our submission failed to fully appreciate the requirements of those provisions in one major respect, and has misinterpreted the meaning of the phrase taken from the statement of the Applicant which is referred to in paragraph 17 of that report, as well as failing to consider whether any other means of correction of the application might be open to the Applicant.
Whilst the officer correctly states that the registration authority must give the applicant an opportunity of correcting the application, she then goes on to conclude that your authority can ignore that requirement in the specific circumstances of this case. That is clearly an error of law, the 2006 Act sets out that an applicant has the right to correct an error contained within the application, the officer might well be right in stating that no answer could be given to the question being raised (we do not concede that he is), but nevertheless our Clients rights under Article 6.1 of the ECHR would clearly be violated if he was not given a right to respond, that would be the case even if there was no statutory right to amend, but there is a statutory right, and irrespective of the officer’s view if that opportunity is not offered to our Client any determination based on the officer’s report would in our submission be ultra vires.
It is our view that only in exceptional circumstances would there be justification that would warrant summary disposal of an Application made under Section 15 of the 2006 Act without first seeking clarification/correction of any alleged error, no such exceptional circumstance is present in this case exists. In any event the definition that the officer puts on the relevant passage are a matter of interpretation, clearly one interpretation may well be that being put forward by your officer, but another interpretation, particularly when the whole passage is taken into account, supports the proposition that the use has been 'as of right'. The officer of course cuts the passage short, she sets the passage out as saying “with full authority of the landowner” whereas the full passage states "Local people are also able to show that all areas have been used continually for at least the previous 20 years with full authority of the landowner in an unrestricted and unhindered manner" now the question is what did the Applicant mean by those words. In our submission it is not open to the Registration Authority to put an over restrictive interpretation (at least not without first seeking clarification from the Applicant) on the meaning of the phrase. No such clarification or amendment has been sought, indeed the report of the officer has not even been sent to the Applicant, but has come into his possession from an unofficial source, therefore the Authority cannot even use the justification that the Applicant would have an opportunity of making representation on the officer’s report. Whilst it is true that representation on behalf of the Applicant is being advanced in this letter, and therefore it might be said that the Applicant has suffered no prejudice, but of course he has, or potentially is likely to suffer prejudice because before the Committee is a report that is clearly erroneous at law and if that report is accepted without a full appraisal of the meaning of the term that could only come from representation as to the meaning put to a non statutory inquiry and after a full appraisal of the substantive case.
Whilst I would agree that the Applicant could have chosen better words, but the phrase cannot be said to be open only to one interpretation, and that a very restrictive interpretation. When we look at the final part of the sentence we cannot restrict consideration to the words chosen by the officer but must go to the end of the sentence thus “.....with full authority of the landowner in an unrestricted and unhindered manner”. It is the words 'unrestricted and unhindered' that counters the argument of the officer, clearly these are words that could be taken direct from a text book on the meaning of the term 'as of right', indeed the Applicant may even have added the word unfettered and still would not have been able to have the interpretation of the officer placed on the term. All that the Applicant is stating is that the landowner has failed to restrict usage of the land, he does not for instance state 'with the consent' he states full authority, that is the authority brought about by failure of the landowner to restrict or grant usage of the land. Had the landowner taken appropriate action to grant consent, or to refuse consent to use the land, then that would be questions of evidence and objection to be taken into account at a hearing into the substantive case.
There is another aspect where the application could be corrected to rectify an error. If just for the purpose of this argument it was conceded (which we do not) that the officer was right in her interpretation of the meaning attributed to the words, and that was the meaning that the Applicant meant to be attributed to them, then the application would still not be so invalid that as a matter of course it would require rejection on the grounds of being incapable of amendment. For instance the Applicant may have intended to have used Section 15(2)(a) or (b) but had erroneously used S15(3) in which case S15(7) would apply. Whilst we would accept that for the normal purposes of an application the applicant has to rely upon a continuing set of circumstances after the end of the relevant 20 year period up to the date of the application, that is though in respect of all matters other than the question of consent of the landowner on an application under S15(2) where the provisions within S15(7) applies taking out all future periods after the initial 20 year period has ended. So if the 20 year period for the purpose of S15(7) was for instance between 1970 to 1990, and the landowner gave consent to use the land in 1991 the landowner could not rely on that fact to defeat an application, even though the application 20 year period was from 1987 to 2007. We accept that this argument is too simplistic there would clearly be many if and buts, the point is it is open to the applicant to put forward such a case, clearly the authority would not know how the applicant might seek to amend an error, until the applicant is formally requested to amend, in accordance with the relevant provision.
It is therefore our submission that your officer in her interpretation has as a matter of law misinterpreted the meaning of the term set out in paragraph 17 of her report, in a way that can clearly be stated as being too restrictive, that she has failed to advise the committee correctly on the question of law relating to the need to seek amendment from the Applicant. Therefore we must advise our clients that if your authority proceed to determine this application on the grounds set out in the officer’s report then our Client should seek appropriate legal advise with a view to applying to the High Court for judicial review or in the alternative for an application for a declaration as to the true meaning of the words contained in the statement of the Applicant and whether your authority are able as a matter of law to reach the view as expressed by the officer recommending rejection without first requesting amendment and/or justification for the wording of the statement made by the Applicant.
Our Client is more than happy to redraft the statement to reflect exactly what he meant to be interpreted from the passage that the officer refers to, and that is we submit the correct approach that your authority should take as required by law, and on receipt of that amendment to put the application to a non statutory inquiry. However, we do not believe that there is any need to request any such amendment, the words speak for themselves and can easily be dealt with by evidence that can be tested by cross examination at a non statutory inquiry, and by the submission of legal argument at such an inquiry. We therefore request that your authority reject the report of the officer and instruct officers to put in place the process of establishing a non statutory inquiry to hear evidence on the merits of the application, before your authority determines the substantive case.
Should you require further clarification on any point raised in this letter then please do not hesitate in contacting us.