Town or village green – Registration – Rectification – Delay – Land registered as town or village green under Commons Registration Act 1965 – Applications by landowners to rectify register to remove land – Registrations found to have been wrongly made – Whether just to order rectification notwithstanding delay between registration and making of application to rectify – First appeal allowed; Second appeal dismissed
The two joined appeals concerned land registered as a town or village green under the Commons Registration Act 1965. The issue on the appeals was the relevance of delay to an application for rectification to remove such land from the register.
In the first appeal, the registered land comprised 6.5 acres of grassland in Edgerton, Huddersfield, which was owned by the intervener and had for many years been designated in local plans as a site for housing development. In 1996, the respondents’ action group applied successfully to have the land registered as “class c” green on the ground of 20 years’ use as of right for sports and pastimes by the “inhabitants of any locality”, within section 22(1) of the 1965 Act.
The appellant developer acquired the land in 2005 for a price that reflected the registration as a green but provided for the payment of an overage to the vendor in the event that planning permission for development were obtained within 10 years. In 2010, the appellant applied under section 14 of the 1965 Act to rectify the register by removing the land from. The application was allowed in the High Court on the grounds that: (i) the land had not been used by members of a single locality as required by the statutory test and it had therefore been wrongly registered; and (ii) it was just to rectify the register, notwithstanding the long delay in applying for rectification, since little prejudice to the local residents had been demonstrated. That decision was reversed by the Court of Appeal, which reinstated the registration on the ground that the delay in seeking rectification made it unjust to rectify: see Paddico (267) Ltd v Kirklees Metropolitan Borough Council [2011] EWHC 1606 (Ch); [2011] PLSCS 26 EG 84 (CS) and [2013] EWCA Civ 262; [2012] PLSCS 54. The developer appealed.
In the second appeal, a local society successfully applied in 2001 to register a 46-acre area of open land in Weymouth as a “class c” green. The respondent purchased the land in 2005, for a price that was lower than it would have been had the land not been registered as a green. The High Court allowed the respondent’s application to rectify the register on the grounds that: (i) 20 years’ use “as of right” had not been demonstrated since the relevant use had been contentious in nature until 1984; and (ii) it was just to rectify the register notwithstanding the delay. That decision was upheld by the Court of Appeal: see Betterment Properties (Weymouth) Ltd v Dorset County Council [2010] EWHC 3045 (Ch); [2011] 1 EGLR 129 and [2012] EWCA Civ 250; [2012] PLSCS 53. The appellant appealed on behalf of the society.
Held: The first appeal was allowed; the second appeal was dismissed.
There was no statutory time limit for making an application for rectification under section 14 of the 1965 Act. The rectification power contained in section 14 had no bias either for or against rectification but merely required it to be “just”. A section 14 application was principally a matter of vindicating private rights. While such an application could be brought by anyone, the most likely applicants were the owners of the registered land, whose right to use that land was severely curtailed by the rights of the local inhabitants to use it for lawful sports and pastimes.
Although an application to rectify also had a public law aspect so far as it concerned a register kept by a public authority, which was open to public inspection and on which both public authorities and private persons might rely in making their decisions, the principles of “good administration” applicable to public law judicial review claims were not determinative of applications to rectify under the 1965 Act. Such principles cut both ways in the case of rectification since there was a public interest in respecting the register, which was conclusive until rectified, but there was also a public interest in the register being accurate and lawfully compiled.
Accordingly, while the interests of the wider public were not irrelevant, section 14 was principally concerned with justice as between the applicant for rectification of the register and the local inhabitants who were the beneficiaries of that registration. Where the applicant was the owner of the land, the starting point should be that the landowner’s rights had been severely curtailed when they should not have been and that the inhabitants had acquired rights that they should not have had. The lapse of time was not immaterial but, where the statute imposed no deadline for rectification applications, and there was no obvious close analogy within the Limitation Acts, the position was similar to that under the equitable doctrine of laches, under which delay alone, however lengthy, would not suffice to bar the claim. Something more was required that made it inequitable to enforce the claim; there had to be knowledge of the facts coupled with either acquiescence by the landowner or detriment or prejudice to others.
Knowledge of the facts was unlikely to be a problem in most cases, where the original landowner would have been notified of the proposed registration and a subsequent purchaser would have had the opportunity of consulting the register before deciding to buy. On the other land, where the landowner did know about the registration, the fact that it had purchased with knowledge of the registration and paid a discounted price as a result was unlikely to make much difference since its rights as landowner had still been severely curtailed and it had suffered harm as a result.
As to acquiescence, that factor might be especially relevant where an application for rectification was made by someone other than the landowner, since the applicant would probably have no private interest to vindicate and the fact that the landowner had chosen to take no action might be highly relevant to the justice of the case. Even there, however, the considerations might be different if the applicant were a public authority seeking to vindicate some public interest. Whoever was the applicant, it would not be appropriate to treat the landowner’s failure to object to the inhabitants’ use of the land after it had been registered as a green as acquiescence on its part; once the land was registered, it was conclusive evidence of the inhabitants’ rights such that, unless and until the register was rectified, the landowner would not be entitled to prevent them.
The crux of the matter would normally be the question of detriment or prejudice. Prejudice to local inhabitants who would no longer be entitled to use the land for lawful sports or pastimes was unlikely to be weighty, since they should never have had the rights in question, although there might be practices that had grown up, for example the holding of an annual fair, that it might be prejudicial to them to lose. However, because the register was public, and there were public as well as private interests involved, the potential prejudice caused by rectification was not limited to the local inhabitants. There might be other individuals who had made decisions that they would not otherwise have made, such as buying, or refraining from selling, houses on the basis that the land was a registered green. Further, there might be authorities who had made decisions in reliance on the registration, such as a decision by the local planning authority to grant planning permission for residential development on other land because the green was not available for that purpose. On the other hand, maintaining the registration might also be damaging to such interests, such as where the land was allocated for much-needed local housing. Finally, there could be prejudice to the fair hearing of the case since the longer the lapse of time since the original registration, the more difficult it might be to have a fair trial of the issues relating to registration, in particular as to the length and nature of the use to which the land was put in the previous years and whether it was contentious or as of right. Although prejudice could not be inferred without evidence, the longer the delay the easier it would be to draw such inferences; the correct approach was that there should be material before the court to show that other public or private decisions were likely to have been taken on the basis of the existing register, which had operated to the significant prejudice of the respondents or other relevant interests.
Applying the foregoing principles, the judge in the first appeal had been entitled to find that the delay in seeking rectification had caused little prejudice and did not justify refusing the application. The Court of Appeal had erred in reversing his decision, which would be restored accordingly. In the second appeal, the Court of Appeal had correctly upheld the judge’s finding that the four-year lapse of time between registration and the making of the application to rectify was insufficient to make it unjust to grant rectification.
George Laurence and Ross Crail (instructed by DLA Piper UK LLP) appeared for the appellant in the first appeal; Charles George QC, Philip Petchey and Ned Westaway (instructed by Public Law Solicitors, of Birmimgham) appeared for the respondents in the first appeal and the appellant in the second appeal; George Laurence QC and William Webster (instructed by Pengillys Solicitors, of Weymouth) appeared for the respondent in the second appeal; Martin Carter (instructed by Baxter Caulfield Solicitors, of Huddersfield) appeared for the intervener, George H Haigh & Co Ltd
Sally Dobson, barrister
