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Judges have delivered their verdict on a unique test case over an eight-acre Shropshire field that locals claim is ...
Judges have delivered their verdict on a unique test case over an eight-acre Shropshire field that locals claim is a 'village green' - immune from development.

The Appeal Court challenge centred on the field near a parish church in Clun, near Craven Arms, Shropshire, which is owned by the Hereford Diocesan Board of Finance.

One of its trustees, Christopher Whitmey, argued the decision whether or not the land should be registered as a village green should be made by the commons commissioners - not by Shropshire CC.

But Lady Justice Arden, sitting with Lord Justice Waller and Mr Justice Pumfrey, dismissed his challenge, also rejecting arguments that, for the county council to decide the issue, would violate Mr Whitmey's human right to a fair hearing by an independent tribunal.

The board - a registered charity - have received an offer to sell the field, but locals want it officially registered as a village green, a move which would prevent it ever being developed.

And the Appeal Court warned the county council that, in resolving the dispute over the land's status, it must 'consider both the interests of the landowner and the possible interest of the local inhabitants.'

'That means that there should not be any presumption in favour of registration or any presumption against registration,' said Lord Justice Waller.

'It will mean that, in any case where there is a serious dispute, a registration authority will almost invariably need to appoint an independent expert to hold a public inquiry.'

Villagers say the land should be registered as a village green, immune from development, on the basis that it has been used for public recreation 'as of right' for more than 20 years.

Lady Justice Arden said Mr Whitmey, from Hereford, had put forward his arguments 'skillfully'.

But she rejected claims that the 1965 Commons Registration Act creates a 'cut-off date' and restricts village green registration only to those plots of land which had been recognised as such prior to 3 January 1970.

She said it was clear that 'the Act contemplates' that land 'may become village greens' by public useage even after that date.

The judge also ruled that the commons commissioners have 'no jurisdiction' to hear the dispute over the land's status.

She ruled the county council is the proper authority to decide the issue, although it is obliged to 'act reasonably' - and that almost certainly means appointing an independent expert to carry out a public inquiry.

The Department of Environment, Food and Rural Affairs had resisted Mr Whitmey's appeal, arguing it was preferable for local authorities to resolve such disputes, rather than the commons commissioners.

DEFRA felt it was better for such decisions to be taken at local level.

Lady Justice Arden also rejected Mr Whitmey's claim that, for the county council to sit in judgement on the dispute, would violate Article 6 of the Human RightsConvention, which enshrines the right to a fair and public hearing before an independent tribunal.

She said that, in practice, a public inquiry with an independent expert presiding, would have to be convened and, if Mr Whitmey disagrees with the council's decision, he can challenge it by way of High Court judicial review.


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