The Church Commissioners for England, who own the piece of land known as Bushfield Camp, had argued that because substantial deficiencies in the application were not corrected until the five year time period had passed, Hampshire County Council should not have allowed the application.
Local resident Barbara Guthrie made an application to register Bushfield Camp as a TVG on 30 June 2008. Her case was that there had been the necessary use of the land by the public as of right, which had been brought to an end when the Church Commissioners erected a fence on the land some time during the week ending 13 July 2003. When the application was made, there was one "trivial" and two "substantial" errors in it. Hampshire County Council gave Mrs Guthrie additional time to correct the application; however this was not completed until 20 July 2009, which was outside the statutory five-year grace period.
However, Mr Justice Collins said that as the landowners were notified that an application had been made within the statutory time period, and had failed to press the registration authority to resolve the application's deficiencies within a reasonable time. As a result, the Court decided that there was no "unfairness" in allowing the application to proceed.
"It must be borne in mind that many applications for TVGs [town and village greens] are made by interested persons acting without legal assistance and, since the rights sought will be for the benefit of the public, applications should not be defeated by technicalities," he said.
"[The landowners] were aware of the application and not only did they not press for an earlier resolution or let [Hampshire County Council] know that they considered its failure to deal with the matter earlier was unreasonable, but in March 2009 they were prepared to assist [Mrs Guthrie] by agreeing to the provision of a map for her," he said.
"Thus I do not think they can now complain that the long period before the application was put in order was unreasonable. If they had pressed the [council] and the interested party had as a result been given shorter periods to act different considerations would apply," he said.
The TVG regime allows land to be registered if it has been used "as of right" for recreational purposes for 20 years. Once registered, local residents have a recognised right to use that land for recreational purposes. It is an offence for a landowner to wilfully do anything on a TVG that will injure the land or interrupt the public's use or enjoyment of it.
Dev Desai, an expert in village green litigation at Pinsent Masons, the law firm behind Out-Law.com, said that the case showed that it was possible for a village green applicant to make an invalid application before the statutory deadline and then make substantial changes to rectify it after the statutory deadline had expired.
"It is up to the registration authority, if it wishes to do so, to set timescales to the rectification of an invalid application," he said. "The advice to landowners presented with applications containing substantial errors is to press the registration authority to set strict deadlines for the applicant to remedy the deficiencies and, if the applicant failed to do so, to reject the application."
"This case indicates that the onus can be on the registration authority and the landowners, rather than the applicant, to identify and manage the correction of fatal mistakes in village green applications. Some landowners may feel that this places an additional and unfair burden on them when faced with the real prospect of losing their land for all practical purposes," he said.
As a general rule, the land must be used for recreational purposes at the time that the application is made. However, if use ceased before the application was made, different time limits apply depending on when that use stopped. The Commons Act gives applications up to five years to bring an application where use ceased before the Act came into force on 6 April 2007. Otherwise, applicants have a two year 'grace period', which will be reduced to one year in England when changes to the TVG regime included in the Growth and Infrastructure Act come into force. The grace period will remain two years in Wales.