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Cancellation of registration

Objections from land owner to user

Delay in application for rectification

Taylor (On behalf of the Society for the Protection of Markham and Little Francis) v (1) Betterment Properties (Weymouth) Limited and (2) Dorset County Council
[2012] EWCA Civ 250

Summary

This was an appeal against an order allowing Betterment’s application under s14(b) of the 1965 Act to cancel the registration as a town or village green of some 46 acres of open land in Weymouth known as Markham and Little Francis. The appeal was dismissed. The replacement of signs that had been torn down and other similar actions were sufficient to indicate to a reasonable man with the dominant owner's knowledge of the circumstances of the situation that the servient owner objected to the use of the land by the neighbours. A delay of just over four years after the discontinuance of judicial review proceedings, which were commenced within three months of the registration was not long enough to lead to the conclusion that it would not be just to rectify the register.

Facts

The land was registered by Dorset County Council on 5 June 2001 following a non-statutory public inquiry conducted by a panel of three county councillors in December 2000. The application was made on the basis that the amendment of the registers ought never to have been made and that it was just to rectify the register.

The relevant definition of a green was that contained in s22(1) of the 1965 Act, before its amendment by the CROW Act 2000, so that in order to have been properly registered as a green the land had to have been “land on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than twenty years”.

First instance

In assessing the requirement that the user must be “as of right”, i.e. nec vi, nec clam, nec precario, Morgan J adopted the test of Pumfrey J in Smith v Brudenell-Bruce [2002] 2 P&CR 51 at para [12]:
    “It seems to me a user ceases to be user "as of right" if the circumstances are such as to indicate to the dominant owner, or to a reasonable man with the dominant owner's knowledge of the circumstances, that the servient owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action. A user is contentious when a servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user”.
Morgan J found that from 1963 to 1980 the land was used by farmers for grazing livestock and that during this period there were many occasions when members of the public broke down fences or created gaps in hedges to gain access to the fields and many occasions when the landowners and farmers tried to make good those gaps. Morgan J found that for a period of years during the years of grazing the landowners had erected; suffered the tearing down of; and had re-erected multiple signs on the land informing the public that straying from the footpaths that crossed the land was not permitted and would be trespass. He also found that the landowners and their employees warned off members of the public when they saw them on the land. Morgan J also found that there came a time, in about 1984, after the grazing had stopped when the landowners effectively gave up trying to keep the public off the land.

After reviewing the authorities on contentious user Morgan J set out his conclusion in para [122]:
    “In my judgment, until (at least) say 1984, a reasonable person using the land and knowing the facts which I have found to have existed would appreciate that the landowner objected and continued to object to that use of the land and that the landowner would back the objection by physical obstruction to the extent possible. For the avoidance of doubt, I ought to say something more specific as to what a reasonable user of the land for sports or pastimes would have known about the breaking down or cutting of fences and hedges and about the notices erected by the landowners. I find that a reasonable user of the land would have known that the fences and hedges had been broken down or cut. Many users of the land came on to the land by means of gaps in the fences and hedges. It would have been clear enough to such a reasonable user of the land that one of the purposes of the fences and the hedges being there was to prevent the public accessing the land at those points. It would have been clear enough to a reasonable user of the land that the gaps had been created (against the wishes of the landowners) by persons wanting to gain access at such point. I also find that a reasonable user of the land in the period up to, say 1984, would have known that the landowners had erected signs which had been torn down and re-erected. As the various statements of the legal principle make clear, it is not necessary for the landowners to show that every single user of the land knew what a reasonable user would have known. I find that the landowner was doing everything, proportionately to the user, to contest the user and to endeavour to interrupt it”.
Having concluded that the user was not as of right for the requisite 20 year period, Morgan J went on to consider whether it was just to order rectification of the register and having considered evidence adduced on behalf of the supporters of registration, in particular from owners of property close to the disputed land who had purchased in the light of the registration as a green, he concluded in para [191]:
    “The question of whether it is just to order rectification of the register involves a balancing exercise taking into account all proper points that can be made on behalf of the landowners and all proper points that can be made on behalf of the inhabitants of Wyke Regis. Having considered in detail all of the matters which Mr Petchey has asked me to consider, I come back to what I earlier described as the prima facie position. If rectification is ordered the result will be that the landowners will be free from burdens which should not have been placed upon them and the inhabitants of Wyke Regis will be denied, in the future, rights which they have enjoyed in the past, but which they should never have had. My decision is that this prima facie position is indeed the just position”.
Accordingly Morgan J directed that the registration be cancelled.

Court of Appeal

The appeal against that decision was dismissed.

The appellant argued in connection with user as of right that, faced with vandalism of the signs the landowners could and should have circulated their objections to the use of the registered land either by placing an advertisement to that effect in the local newspaper or by distributing leaflets with a similar message to local residents and it was only in that way that it would have been made sufficiently clear to the majority of residents, who had not seen the signs because they had been torn down by others, that the use of the land was objected to.

The Court of Appeal did not accept that in the circumstances the landowners should have gone that far. Patten LJ at 62:
    “What I think s.22(1) does do is to require the registration authority (and, on a s.14 application, the Court) to look at the evidence of use by the inhabitants of the locality as a whole. Mr George seeks to distance his clients from the unlawful activities of the minority by saying that evidence of their user of the land was not relied on as the basis of the s.13 registration. But the inquiry panel was not entitled in my view to shut its eyes to what some residents had done to the fences and to the signs in considering whether the landowner was to be taken to have acquiesced in the user. The evidence before them and before Morgan J was that inhabitants of the locality who were seeking to obtain registration of the land as a town or village green had seen the signs; had understood what their meaning and purpose was; and, for that reason, had removed them. The landowners had therefore made their opposition known to the local inhabitants even though, by the actions of some members of that class, the signs may have disappeared within a few days of being erected and may not therefore have been seen by many users of the land.”
On the question whether it was just to rectify the register the Court of Appeal was divided as to the potential significance of certain factors but not as to the result: that it would be just to rectify the register so that the appeal should be dismissed. On the subject of delay Patten LJ said at [86-87]:
    “It seems to me that while delay is a relevant factor, the broader test of justice under s.14 means that the consequences of rectification still have to be balanced against the obvious interests of the landowner in obtaining the vindication of his own legal rights. Unlike the planning cases a s.14 application is not simply a legal challenge to an administrative decision. Its purpose is to enable the landowner to re-establish his property rights free from the adverse registration which affects them. It is therefore not surprising that Parliament has imposed no limit on the court’s powers by reference to undue delay and has merely required it to consider whether it would be just to make the order.

    For this reason, delay will not, in my view, be a barrier to rectification unless there is material before the court to show that other public and private decisions are likely to have been taken on the basis of the existing register which have operated to the significant prejudice of the respondents or other relevant interests. One might well have a case in which other land has been developed or major land transactions carried through on the strength of the register. But in this case none of those issues arises except for the position of Mr and Mrs Thompson who purchased Markham House in Wyke Road on 20th December 2001”.
Patten LJ then referred to the findings that Morgan J had made in connection with the Thompsons, who had purchased the property overlooking the registered land after being told by the vendor that it was a green and could never be built on, and said at [89]:
    “In my view the judge was right to regard the position of Mr and Mrs Thompson as little different from any other local residents who have bought houses in the area in the last decade or so. What they will lose by the rectification of the register is not the open space comprised in the registered land but their right to unrestricted use of it for recreational purposes. Since they were never entitled to those rights no injustice can follow from their removal. If what the local inhabitants value is (like Mr and Mrs Thompson) an open outlook from their windows then that can be safeguarded by the planning policies of the local authority. The purpose of s.13 is not to provide some additional form of planning control.”
Sullivan LJ (with whom Carnwath LJ agreed) took a different view of the significance of delay, saying at [95]:
    “… there is, in my view, a strong public interest in upholding the register in the absence of a prompt challenge to its contents. Against this background, there will be exceptional cases where the delay is so long that prejudice to good administration can properly be inferred. Evidence of actual prejudice of the kind referred to in paragraph 87 of Patten LJ’s judgment will reinforce the case against rectification, but if there has been very lengthy delay prejudice can properly be inferred even in the absence of any such evidence. A delay of decades would certainly be a sufficiently lengthy delay for this purpose, but I would go further and say that a delay of a decade – well beyond any normal limitation period – would be capable of being a delay that was so long that prejudice could be inferred.”
But the delay of just over 4 years after the discontinuance of the judicial review proceedings, which were commenced within 3 months of the registration, on the basis that a section 14 application would be made instead was not long enough to lead to the conclusion that it would not be just to rectify the register.

Single locality

Delay prevented rectification of register

Adamson v Paddico (267) Limited
[2012] EWCA Civ 262

Summary

The first instance judge was correct to interpret the words “any locality” in s22(1) of the 1965 Act as referring to one single locality. However, the delay of 12 years in making the application to the cancel the registration was so long that it would not be justified to rectify the register.

Facts

This was an appeal from the order of Vos J whereby he allowed Paddico’s application under s14 of the 1965 Act to cancel the registration as a green of some 6½ acres of grassland in an otherwise densely built up district of Huddersfield known as Clayton Fields.

In the 1996 application the locality was described as Edgerton/Birkby referring to two suburban areas of Huddersfield: Edgerton in which some of those who made statutory declarations of user of Clayton Fields lived, and Birkby, in which others of those who made such declarations lived. The land was registered by Kirklees Metropolitan Council on 14 April 1997.

Paddico is a development company that purchased Clayton Fields as a speculative investment in the hope that an application to cancel the registration would succeed thus freeing up the land for development purposes.

Statutory provision

The relevant definition of a green at the time of the application in 1996 was that contained in s22(1) of the 1965 Act, before its amendment by the CROW Act 2000, so that in order to have been properly registered as a green the land had to have been:
    “land … on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than twenty years”.
First instance


In paragraph 70 of his judgment Vos J said this:
    “Many views have been expressed, but the point never appears to have been directly decided under the 1965 Act in a case where it was contended that the inhabitants whose evidence supported the claim did not inhabit a single locality, and that the application was invalidated because some other users were inhabitants of another locality. One might be forgiven for thinking that it was absurd that a town green should be ruled out of registration, where it lies between two suburban areas or localities or neighbourhoods, and it is used by the inhabitants of each. But if that turns out to be the correct position as a matter of law and fact, I may be required to reach that conclusion.”
After an extensive review of the authorities Vos J was driven, reluctantly, to reach just that conclusion. He said that had he been starting with a clean sheet of paper he would have concluded that the words any locality in s22(1) of the 1965 Act meant locality or localities but he considered that it had been accepted by the courts at too high a level for him to gainsay that the term any locality is singular in s22(1). Thus, the fact that some of the inhabitants who indulged in lawful sports and pastimes on Clayton Fields lived in Edgerton and some lived in Birkby was not good enough to satisfy the legal requirements for registration.

Vos J also concluded that it was just to rectify the register for the following reasons. If the application had been refused in 1997, as it should have been, then he considered it reasonable to suppose that Paddico’s predecessor in title at the time would have taken steps to protect its position, by pursuing planning consent and in the meantime preventing access by putting up fencing or alternatively putting up signs indicating that user was with permission which could be withdrawn at any time. Thus Vos J considered that a fresh application would have been very unlikely to have succeeded. Moreover the failure to rectify would mean that the landowner would be deprived of its lawful right to develop the land without compensation. There had been delay of some 14 years by Paddico and its predecessors in bringing the application and that had caused prejudice to the residents, not offset by the fact that they had had 14 years use of Clayton Fields to which they were not entitled, but there was little other prejudice demonstrated by the residents, such as the purchase of property in reliance upon registration, and balancing all the factors Vos J concluded that the balance came down ‘fairly clearly’ in favour of it being just to order rectification.

Court of Appeal

On the locality issue the Court of Appeal unanimously dismissed the appeal. Vos J was correct to interpret the words “any locality” in s22(1) of the 1965 Act as referring to one single locality. Parliament had split the so-called class c type of green into two limbs by the amendment of s22 of the 1965 Act by the 2000 Act: the original ‘locality’ limb and the new ‘neighbourhood’ limb. If the appellant was correct that any locality meant any sufficiently identifiable area or areas then Parliament would have legislated in vain because the two limbs of ‘locality’ and ‘neighbourhood’ would be synonymous.

In Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 Lord Hoffmann clearly considered that the new ‘neighbourhood’ limb had materially relaxed the previous restrictions relating to ‘locality’ and when enacting s15 of the Commons Act 2006 Parliament retained the distinction between locality and neighbourhood.

Moreover in the first part of the appeal in the Leeds Group plc case (see above) the Court of Appeal by a majority held that “any neighbourhood” could include more than one neighbourhood but unanimously proceeded on the assumption that Lord Hoffmann’s observations in the Oxfordshire case were correct and the locality within which the one or more neighbourhoods had to be located could only be singular. Carnwath LJ at para 56:
    “In any event what is needed more than anything else in this area of the law is a degree of certainty and stability. Where the highest courts have adopted a particular definition and Parliament has legislated on that basis, then I think this Court would be quite wrong to turn back.”
The court was divided on whether it was just to rectify the register having regard to the delay and in this case on the result of the appeal. The delay was nearly 13 years between the registration in April 1997 and the making of the application in January 2010. Patten LJ at para 43, consistently with his judgment in the Betterment case (see above), looked in vain for “some significant or material prejudice attributable to the delay which makes it just to refuse to restore to Paddico its full legal rights as the owner of this land” and found that “everything points the other way”. The most powerful factor was that the land should never have been registered as a green and Patten LJ could “see no injustice in the Appellant being deprived of rights to which he was never entitled”. It was also relevant to take into account the fact that the land had been allocated for housing in successive local plans and this (at para 45) added “a public dimension … which militates strongly in favour of ordering rectification of the register”.

However, the public interest in the land being developed failed to persuade the majority that it was just to rectify the register. Sullivan LJ, with whom Carnwath LJ agreed, said at paras 37-39:“The register maintained by the Council under the 1965 Act is a public document, “open to inspection by the public at all reasonable times” (section 3(2)), and the entry on the register is conclusive evidence of the matters registered as at the date of registration (section 10). In these circumstances, if it is contended that a register has been amended under section 13 in error, there is a strong public interest in that issue being resolved at the earliest opportunity. While Parliament did not prescribe a time limit for making applications under section 14, it must have envisaged that persons adversely affected by an erroneous amendment of the register would take reasonably prompt action to secure rectification, and would not sleep on their rights. All other things being equal, the longer the delay in seeking rectification the less likely it is that it will be just to order rectification.

On the facts of the present case, all other things were equal. Putting the issue of delay to one side, there was no other factor which pointed either in favour of, or against, rectification, apart from the fact that the register had been amended in error, which did not of itself mean that rectification would be just. CFAG had produced little evidence of prejudice, but equally the landowner, Paddico, could not realistically contend that it would suffer any injustice if rectification was refused. It had purchased the land with knowledge of the entry on the register, and had, quite properly, taken a calculated commercial risk on its chances of securing rectification.

While it must be desirable, in principle, that errors in a public register should be rectified, the delay of over 12 years in seeking rectification of the register in this case was, by the standards of any reasonable legal process, so excessive as to make it not just to rectify the register.”Carnwath LJ added at [68]: “Justice in this context need not turn on proof of individual prejudice, but is wide enough to cover general prejudice to the public (including planning authorities) who are entitled to rely on the register to order their affairs, public and private. This understandably was not an aspect considered by the judge, but in my view it should have been. It is probably not appropriate for the court to lay down a specific time-limit, where Parliament has declined to do so. But for my part, I would be regarding a delay beyond the normal limitation period of six years as requiring very clear justification. On the facts of this case, I agree with Sullivan LJ that on any view the delay was too long”.The appeal was therefore allowed and the register would not be rectified.

Conclusion

It seems likely, particularly given the powerful dissenting judgment of Patten LJ, that Paddico will seek permission to appeal to the Supreme Court against the refusal of the Court of Appeal to permit rectification of the register.


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