Town or village green – Commons registration – Respondent applying to rectify register by removing area of undeveloped land – Whether appellant authority having jurisdiction to amend register by way of rehearing or on appeal – Whether appellants determining application to register by original or amended definition of town and village green – High Court determining preliminary issues in favour of respondent – Appeal dismissed
C owned around 46.2 acres of undeveloped land (the disputed land). In 1997, an application was made to the appellant council, as registration authority, to register the land as a town or village green under section 13 of the Commons Registration Act 1965. While the application was pending, the definition of “town and village green” in the 1965 Act was amended by section 98 of the Countryside and Rights of Way Act 2000, which came into force on 30 January 2001. The application was contested and the appellants held a non-statutory inquiry in order to determine the issue. The panel, which sat in December 2000, unanimously decided that the land should be registered pursuant to section 13 and applied the amended definition.
In 2001, C applied for permission to challenge that decision by judicial review. The appellants opposed the application on the ground that it should have been made in the Chancery Division. A renewed application for permission was discontinued. In 2004, the claimant property developer acquired the land from C and applied for an order, under section 14 of the 1965 Act, to rectify the register by removing the disputed land.
The court was asked to determine two preliminary issues, namely whether: (i) the jurisdiction conferred by section 14(b) of the 1965 Act was in the nature of a rehearing, or an appeal or on some other basis; and (ii) an application to register land as a town or village green (made prior to 30 January 2001, but not determined before that date) should be determined by reference to the original definition in the 1965 Act or the amended definition in the 2000 Act.
The judge held that the hearing was not akin to judicial review or an appeal and that the evidence before the original inquiry should be considered. However, the parties could adduce further relevant evidence if they wished. He held that the original definition of town or village green should have been applied: [2007] EWHC 365 (Ch); [2007] PLSCS 42. The appellants appealed.
Held: The appeal was dismissed.
(1) The registration of land as a town or village green was of major significance because of the negative effect it could have on development. Under section 14(b), the court was free to adopt the procedure that would best enable it to reach a just and fully informed decision as to whether “no amendment or a different amendment ought to have been made” and it was just to rectify the register, and what should stand as evidence and what evidence should be admitted. The court would have regard to the process adopted by the registration authority or a panel when the amendment of the register under section 13 of the 1965 Act was made and the evidence adduced before that authority or panel. That was a relatively simple and informal procedure that did not provide for the service of witness summonses or the disclosure of documents.
The words “ought to have been made” in section 14 did not point to a review based only upon the material before the registration authority (that is, what it should have done on the information before it) rather than to a review at large (namely what should have been done in the light of the information available to the court). The words were equivocal and guidance had to be found elsewhere. The absence of regulations for the correction of errors supported the view that the process under section 14 should be taken at large and the absence of a time limit militated against it being in the nature of an appeal: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 considered.
(2) The application to register was to be determined by reference to the original definition of town or village green. Since parliament had not provided for the amended definition to apply to applications already pending, the presumption against retrospectivity applied and nothing displaced it: Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95 considered.
John Hobson QC and Philip Coppel (instructed by the legal department of Dorset County Council) appeared for the appellants; George Laurence QC and William Webster (instructed by Pengillys, of Weymouth) appeared for the respondents.
Eileen O’Grady, barrister
