Land is liable to be registered as a green if a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years: s15 Commons Registration Act 2006. The requirements originate from the Commons Registration Act 1965, as amended by s98 of the Countryside and Rights of Way Act 2000, which was enacted on the 30th November 2000.
The issue that arose in Leeds Group plc v Leeds City Council [2011] EWCA Civ 1447 was whether the amendments made by s98, which relaxed the requirements for registration, apply retrospectively. The landowner relied on the principle that Parliament should not be taken to have changed the law in relation to past events unless it has made it plain that it intended to do so. It also claimed that it would breach its right to the peaceful enjoyment of its possessions (contrary to Article 1 of The First Protocol to the European Convention on Human Right) were the court to agree that the land qualified for registration as a green.
The landowner argued that it could not reasonably have been expected to resist the recreational use that was made of its land before the law changed because the use was innocuous and did not render the land susceptible to registration as a green. It claimed that the use relied on would have had to have continued until 30 November 2020 to support an application to register land as a green.
The Court of Appeal rejected the landowner’s arguments. Parliament had enacted the changes in the 2000 Act to remove evidential difficulties created by the decision in Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931. Consequently, any construction of the legislation that preserved the previous law for a period of 20 years after enactment would defeat Parliament’s intention.
The court ruled that, if the legislation was retrospective, any possibility of unfairness was purely hypothetical – and there was no unfairness in this case. However, s98 was not entirely retrospective because it did not come into force until 30th January 2001. Consequently, landowners had had two months after the legislation reached the statute book in which to take the simple steps required to prevent users invoking the new rules immediately after the law changed – and even longer to react in respect of subsequent applications. The recreational users had not applied to register this land as a green until 2004, which meant that the landowner had had more than 3 years in which to react to the new rules.
The court’s ruling that the legislation strikes a fair balance between the rights of landowners and the public interest will please some and disappoint others. Landowners and developers will hope that DEFRA’s consultation, which closed on 17 October, will lead to changes in the law that will make it easier to tolerate informal recreational use without fear of the consequences.
Allyson Colby, property law consultant
