Commons registration – Town or village green – Rectification of register – Section 22(1)(c) of Commons Registration Act 1965 – Area of open land registered as green on application of appellant – Application by respondent landowner to rectify register and cancel registration – Whether recreational user of land as of right – Whether just to allow rectification – Registration cancelled – Appeal dismissed
The appellant lived near an area of open land crossed by two footpaths over which the public had a right of way. The respondent acquired the freehold of that land in 2004. Local residents had for many years walked on the land without keeping to the footpaths. Until around 1980, the land had been used for grazing but it had not been put to profitable use since. In June 2001, the county council, as registration authority, had allowed an application, under section 13 of the Commons Registration Act 1965, for registration of the land as a town or village green. The registration was made on the ground of 20 years’ recreational use of the land by local inhabitants as of right within section 22(1)(c).
The respondent brought proceedings to rectify the register and cancel the registration under section 14 of the 1965 Act. Rulings on two preliminary points in the proceedings were upheld by the Court of Appeal: see [2008] EWCA Civ 22; [2009] 1 WLR 334. The high court then proceeded to decide the substantive issues, namely whether the 2001 registration ought to have been made and whether it was just to rectify the register. The appellant joined the proceedings by consent in support of the registration.
Allowing the respondent’s claim, the judge held that the necessary 20 years’ use as of right could not be established since the use had been contentious for some of that period. He found that during that time the previous landowners had done everything that was proportionate to prevent the use, including by maintaining fences and signs in the face of vandalism and breakage, and that their failure to bring court proceedings did not amount to acquiescence. He further held that it was just to rectify the register notwithstanding the delay of many years in challenging the registration. The appellant appealed on both points.
Held: The appeal was dismissed.
(1) Registration of a town or village green on the ground of 20 or more years’ use as of right depended on showing that such use was nec vi, nec clam, nec precario, namely without force, secrecy or permission: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335; [1999] 2 EGLR 94; [1999] 31 EG 85, R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 AC 889; [2004] 1 EGLR 94; [2004] 1 PLR 85 and R (on the application of Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11; [2010] 2 AC 70; [2010] 1 EGLR 153 applied. Where a landowner displayed its opposition to the use of its land by erecting a suitably worded sign, which was visible to and actually seen by the local inhabitants, then their subsequent use of the land would not be peaceable and therefore would not meet the requirement of being without force. Where some users failed to see the signs because a minority took active steps to remove or vandalise them, then the test was whether the landowner had done everything reasonable to contest the use. If the steps taken by the landowner to manifest its opposition would be sufficient to bring it to the attention of any reasonable user of the land, then it was irrelevant that particular users might not have been aware of it. The steps to be taken did not have to be fail-safe in that regard, so long as they were proportionate to the use that the landowner wished to prevent: Smith v Brudenell-Bruce [2002] 2 P&CR 4 and R (on the application of Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin); [2010] LGR 631; [2010] 2 EGLR 171 applied.
In the instant case, the respondent’s predecessors in title had continued to erect and re-erect signs that, if left in place, would have been sufficient in number, clearly visible and clearly enough worded to indicate to the reasonable observer that the landowners wished people to keep to the footpaths and not to trespass on the land. It would be a direct infringement of the principle that rights of property could not be acquired by force or by unlawful means if the court were to ignore the landowners’ clear and repeated demonstrations of their opposition to the use of the land simply because they were obliterated by the unlawful acts of local inhabitants. Section 22(1) of the 1965 Act required the registration authority or the court to look at the evidence of use by the inhabitants of the locality as a whole and it was not entitled to shut its eyes to what some residents had done to the fences and signs. Since the steps taken would otherwise have been sufficient to notify local inhabitants that they should not trespass on the land, then the landowners had done all that was required to make user of their land contentious. That was so even though, by the actions of some members of that class, the signs might have disappeared within a few days of being erected and might not therefore have been seen by many users of the land. It followed that the user had not been as of right for the necessary 20-year period.
(2) An error in the original registration was not enough in itself to justify the rectification of the register. The court had also to reach a positive conclusion that it would be just to do so. The court had to balance the landowner’s claim to free its land from rights that should never have been granted over it against any countervailing considerations of prejudice on which the local inhabitants were entitled to rely to justify the maintenance of the register in its existing form. Delay in seeking rectification was unlikely to be determinative of the outcome in most cases, unless either it had resulted in some form of relevant prejudice or it brought into account more general considerations of good administration. Given the strong public interest in upholding the register in the absence of a prompt challenge to its contents, there might be exceptional cases where the delay was so long that prejudice to good administration could properly be inferred. However, the delay in the instant case was not sufficient to justify such an inference. The judge had been entitled to conclude that it was just to order rectification. Per Sullivan and Carnwath LJJ: The fact that an applicant for rectification had deliberately chosen to take a commercial risk in purchasing the land, knowing the status of the land and the uncertainty of litigation, was capable of being a significant factor in the balancing exercise. Per Patten LJ: Such a change in ownership, although relevant, was unlikely to be a significant factor. It would be wrong to ignore or lessen the importance to be attached to the landowner’s right to exercise full legal ownership of its land merely because it had been able to acquire it at a price that reflected its registered status.
Charles George QC, Philip Petchey and Ned Westaway (instructed by Public Law Solicitors, of Birmingham) appeared for the appellant; George Laurence QC and William Webster (instructed by Pengillys, of Weymouth) appeared for the respondent.
Sally Dobson, barrister
