Court of Appeal upholds High Court guidance on village green challenges

The Court of Appeal has upheld High Court guidance given to developers that seek to challenge the registration of village greens that block developments. On 2 March 2007, Lightman J gave judgment on two preliminary issues in a challenge by Dorset developer Betterment Properties to the registration of its land by Dorset Council as a village green. Betterment was asking for the removal from the register of town and village greens of 46.2 acres of undeveloped land in Markham and Little Francis, Weymouth, which was registered in 1997 and which it bought in 2004. Under section 14 of the Commons Registration Act 1965, a court may order the register to be rectified if it appears that a previous amendment to the register should not have been made. In 2000, the definition of a town or village green in the 1965 Act was changed by the Countryside and Rights of Way Act 2000. This stipulated  that the 20-year user required to give rise to the right to register as a village green must have continued until the date of the registration application and that user must have been by a significant number of the inhabitants of the locality. Preliminary issues were ordered to be determined as to whether the court’s jurisdiction under section 14 was by way of rehearing or appeal and the definition of town or village green should be that set out in the 1965 Act or the 2000 Act. Lightman J found on the first issue that: “The court is free to adopt the procedure best calculated to enable a just and fully informed decision to be reached whether ‘no amendment or a different amendment ought to have been made’, whether it is just to rectify the register, what should stand as evidence and what evidence should be admitted.” Regarding the second issue, he said: “The presumption is that the outcome of the process is to be determined by reference to the definition in force when the application was made.” Dismissing the council’s appeals against those determinations Lloyd LJ said that in view of “the major significance for a landowner of registration of land as a town or village green, with the blight that this casts on any development”, the court was free to adopt the procedure that best enabled it to reach a just and fully informed decision. With regard to the second issue, Lloyd LJ said that applying the “presumption against retrospectivity”, the determination of an application to register would be made by reference to the definition in force when the application was made. Permission to appeal to the House of Lords was refused. Betterment Properties (Weymouth) Ltd v Dorset County Council Court of Appeal (Laws, Rix and Lloyd LJJ) 6 February 2008. John Hobson QC and Philip Coppel (instructed by the legal department of Dorset County Council) appeared for the appellant; George Laurence QC and William Webster (instructed by Pengillys) appeared for the respondent.