Bristol reels after judge allows fresh JR claim to proceed over village green decision

Bristol City Council has been left reeling after a High Court judge ruled that a fresh judicial review claim over a controversial village green decision could be brought despite the withdrawal of the original applicant and the new application being months out of time.

The case relates to plans to use land in the Ashton Vale district in Bristol for a retail and commercial development and for Bristol City Football Club to build a 30,000-seat stadium. Bristol City received planning permission for the project in October 2009.

The plans met with strong opposition from members of the local community, who claimed to have used the land for recreational purposes for many years. But the proposals have also received strong support, particularly from the club’s fans.

An independent inspector recommended in 2010 that the site be registered as a town or village green.

However, the council’s public rights of way and commons committee decided on 16 June 2011 to register only that part of the land that was not required for the development.

In September 2011 an application was lodged for judicial review. The claimant was identified in the claim form only by the initials ‘SDR’ and the form contained an application for anonymity on the basis that supporters of the town and village green bid had been subject to threats of violence and harassment.

That anonymity application was granted on 15 September 2011, on the basis that the parties to the application should be told SDR’s identity on a confidential basis.

The pleaded grounds said nothing explicity to the effect that SDR, who is elderly and in poor health, was purporting to act as a representative of any wider group.

Permission to apply for judicial review was granted in January. However, a month later a member of the claimant’s family wrote to the court to say that his solicitor, Richard Buxton, had ceased to act for him, he was now acting in person and he was giving notice of discontinuance.

The decision to withdraw was publicly hailed at the time by the council.

But the lawyer at Richard Buxton with conduct of the claim, Adrienne Copithorne, sought to maintain or revive the case with the involvement of a different resident of Ashton Vale, known as CRM. This was through an application to substitute SDR and a claim form for a fresh application for judicial review.

SDR meanwhile wrote to the court on 17 February insisting that the decision to withdraw was to “cut a clean slate” and rejecting suggestions that he or his family were persuaded or coerced into the decision. “I do not want to be in the way of potential jobs, young people and economic prosperity for the City of Bristol,” the letter said.

At a hearing on 22 February HH Judge Thornton QC, sitting as a Deputy High Court Judge, made various consequential directions aimed at ensuring the two cases were, in effect, treated as one. The council then applied for this order to be set aside.

In R (SDR) v Bristol City Council [2012] EWHC 859, Mr Justice Underhill ruled this week that SDR’s claim was effectively discontinued on 16 or 17 February. A witness statement satisfied the judge that SDR “did indeed sign the notices and that, whatever the pressures on him, his act must be regarded as voluntary”.

But the High Court judge allowed the fresh claim to go ahead, even though it was out of time by over four months.

He said the interested parties – the developers – would be no worse off than if SDR had continued with his claim. “In substance, albeit not in form, these are the same proceedings: they raise the same challenge on behalf of the same group,” Mr Justice Underhill said.

The judge added that he had reached his conclusion without reference to the circumstances which caused SDR to change his mind. He also said he was minded not to make an order for the costs of the hearing.

In a statement the local authority said it respected the judge’s decision. It added: “Although today’s judgment shows that we were right in our view that the original legal challenge was indeed at an end when the then applicant withdrew his case, that is scarce comfort now the court has allowed a fresh challenge from a new anonymous party, even though this is well outside the usual legal timeframe.”

The local authority said it was disappointed that there would be more months of uncertainty ahead, at least until a June hearing of the matter. This would bring with it “the certain prospect of bills for tens of thousands of pounds more of tax payers’ money in legal fees”.

Bristol pointed out that the court had not formed any view on the rightness of the decision taken by a cross-party committee of councillors to register only the southern 20 acres of the site as a village green.

The local authority said: “It is a matter of genuine concern and regret to the council that this conflict is continuing between those in favour of development of the northern part of the site for a stadium, and those opposed - with the council and the taxpayer caught in the middle.”

Adrienne Copithorne said in a BBC report: "The council's attempt to stop it [the claim] has amounted to a waste of time and public funds.

"The High Court can now get on with addressing the real issue, which is whether the council was right to register only part of the land at Ashton Vale as village green, contrary to the inspector's recommendation."

Philip Hoult