Commons Registration Act 1965 — Application by defendant to register claimant’s land as new town or village green — Claimant applying to court for declaration that land not registrable — Whether claim an abuse of process — Claim struck out
In May 2006, the claimant purchased a plot of land that he wished to develop. In June, the defendant applied to the county council to register the land as a new town or village green for the purposes of section 13 of the Commons Registration Act 1965.
The claimant brought proceedings for a declaration that the land was not registrable as a new green, and sought summary judgment pursuant to CPR 24. The defendant applied to have the claim struck out as an abuse of process, or stayed pending the outcome of the registration application; alternatively, he sought a protection from a costs order. He submitted that: (i) a piece of land could not become a green unless it was registered as such; (ii) registration could occur only following an application in accordance with the applicable regulations, namely the Commons Registration (New Land) Regulations 1969; and (iii) it was not open to a court to decide the question.
Held: The claimant’s claim was struck out.
Whether a particular piece of land was a green depended upon registration, not upon proving the constituent elements on an application to the courts for a declaration. After the statutory cut-off date of January 1970, land could become a green only if it was registered as such following an application under the relevant regulations. The court had no power under the 1965 Act to require a registration authority to register or not to register; any decision of the court could bind only the parties and would not affect the registration authority or other local residents. Accordingly, the claimant’s attempt to obtain a declaration that his land was not registrable as a new green was objectionable, and his action should be struck out as an abuse of process: Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95) and Barraclough v Brown [1897] AC 615 applied; R (on the application of Whitmey) v Commons Commissioners [2004] EWCA Civ 951; [2004] 3 EGLR 1; [2004] 45 EG 126 not followed.
Although the issue of a protected costs order did not strictly arise in the light of the above, the court would have been bound by authority to hold that such orders were not available in a private law action such as the present: R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600 applied.
Vivian Chapman QC (instructed by Mullis & Peake, of Romford) appeared for the claimant; Douglas Edwards (instructed by Richard Buxton, of Cambridge) appeared for the defendant.
Sally Dobson, barrister
