Transitional provisions in the Commons Act 2006 did not infringe a landowner’s human rights
Land qualifies for registration as a green if it has been used as of right for lawful sports and pastimes for at least 20 years. Landowners can stop the clock during the 20-year qualifying period by granting permission for the use or barring access, because use “as of right” means that users have used land openly, without force, and without being given permission to do so.
The land must be used for recreation when an application is made. If use ceased before the application is made, different rules apply, depending on when the use ceased. Where use ceased before 6 April 2007 in England, section 15(4) of the Commons Act 2006 allows applicants up to five years from the cessation of such use in which to apply to register land as a green (unless planning permission was granted and construction works were commenced before 23rd June 2006, rendering the land permanently unusable for recreation).
The transitional provision operates retrospectively and breathed new life into applications that would previously have failed because no steps were taken to register land as a green before the landowner prevented users from using the land “as of right” or at all.
In R (on the application of Newhaven Port & Properties Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2013] EWCA Civ 673; [2013] PLSCS 132, the landowner barred access to Newhaven beach shortly before the 2006 Act reached the statute book. The users subsequently took advantage of section 15(4) and persuaded the Court of Appeal that the beach should be registered as a green.
The landowner fell back on human rights arguments in a second and subsequent hearing. It contrasted the five-year grace period allowed for pre-Act cessations with the two year grace period allowed for post–Act cessations (which will reduce to one year in England when section 14(3) of the Growth and Infrastructure Act 2013 comes into force). It complained that the period was disproportionately long and deprived it of an unassailable defence to the application to register the land as a green.
The court agreed that Article 1 was engaged because the legislation controls how landowners can use land registered as a green. However, Article 1 permits states to enforce such laws as they deem necessary to control the use of property in accordance with the general interest. Retrospective legislation is not necessarily incompatible with Article 1 and the court must respect the decision of Parliament unless it was manifestly unreasonable.
The grace period for pre-Act cessations catered for the fact that landowners used to be able to block applications for registration by granting users revocable permission to use their land, even though it had been used for recreation for more than 20 years. This is not the case now; landowners must physically exclude users, once the 20-year qualifying period has expired, to bring the use to an end.
The period operated on a sliding scale because it ran from the date when the use ceased, and not from the date when the Act came into force. The legislation was not illegitimate or disproportionate, and the landowner could have avoided the predicament that it was now in, by acting in a more timely fashion.
Allyson Colby is a property law consultant
