It’s for the Committee to decide

A lot of things have gone wrong with the way these applications have been handled, but the Committee has the power to put things right tomorrow.

The role of an Inspector in these cases is not to determine whether land should be registered – Parliament has given that role to the Council as registration authority, and BCC has delegated this decision to the Public Rights of Way and Greens Committee.

The Inspector’s role is to ensure a fair procedure, particularly where the Council is also the landowner, and where there are factual disputes about important issues. The Committee’s agreed procedure says that this can be done on the paperwork in ‘straight-forward cases where there is no significant conflict of evidence, or no significant objection’. This is clearly not that, and yet the Inspector failed to follow the agreed procedure and hold a non-statutory public inquiry, only admitting right at the end that it was a complicated case and not straight-forward at all.

If he had held a public inquiry, he could not have missed out all the witness statements, or misunderstood the Applicants’ case on key issues. There would have been much less chance of him failing to consider relevant evidence or properly address the Applicants’ arguments. So there has been clear detriment to the Applicants from this breach of proper process.

As the Inspector expressly acknowledges in his final Note, the Committee is not bound by his factual findings or ultimate recommendation; it is entitled to take a different view provided it acts lawfully and gives reasons for its decision. He says it is necessary for the Committee to consider the facts on the two key issues, and also that it is for the Applicants to show the Committee that the legal test is met on the facts – so he clearly recognises that it is open to the Committee to decide that the legal test is met and to register the land.

The Committee’s role is quasi-judicial – it cannot simply rubber-stamp the report of an Inspector who has failed to deal with the evidence properly and hasn’t followed the Committee’s agreed procedure. Parliament could have provided for TVG applications to be determined by a legally qualified judge but it did not – it gave this task to democratically elected local Councillors who bring their local knowledge, common sense and expertise to the table when considering the facts.