Betterment Properties (Weymouth) Ltd v Dorset County Council

Section 14 of the Commons Registration Act 1965 gives the High Court a broad rectification jurisdiction. The application is not an appeal or rehearing confined to the evidence before the registration authority. The court may regulate its own procedure and admit such evidence as is necessary for a just and fully informed decision.

The determination of an application to register land as a town or village green is judicial in character. Accordingly, unless Parliament indicates otherwise, the applicable statutory definition is the definition in force when the application was made. The amended definition introduced by the Countryside and Rights of Way Act 2000 did not retrospectively apply to an application made before its commencement.

The claimant, the owner of land registered as a town or village green, sought rectification of the register under section 14 of the Commons Registration Act 1965. The registration application had been made in 1997 but was determined after the amended statutory definition came into force on 30 January 2001.

Two preliminary issues arose: whether the section 14 jurisdiction operated by way of rehearing or appeal, and whether the 1997 application fell to be determined under the original or amended definition of a town or village green.

1. Section 14 jurisdiction. The court held that section 14 imposed no fetter on the evidence or arguments relied upon to show that no amendment, or a different amendment, ought to have been made, or that rectification would or would not be just. The jurisdiction was not appellate or supervisory in character.
2. The judge hearing the application should use case-management powers to adopt the procedure best calculated to produce a just and fully informed decision. Regard should be had to the earlier registration process and evidence, but the court could decide what should stand as evidence and what further evidence should be admitted. The passage of time, the availability of witnesses and the fairness of admitting evidence which could no longer be challenged were relevant considerations.
3. Character of registration proceedings. Although the registration authority was an administrative body, its determination of an application involved a judicial process. It had to hear interested parties impartially, find the primary facts, draw inferences and apply the statutory criteria. It had no administrative discretion to balance competing interests, unlike a planning authority.
4. Applicable definition. The 1997 application had to be determined under the unamended definition. The statutory scheme gave no indication that the amended definition should operate retrospectively. Section 103 of the Countryside and Rights of Way Act 2000 reinforced the conclusion by postponing commencement for two months.
5. Applying the amended definition retrospectively would capriciously and unfairly make the outcome depend on whether the application had been determined before the commencement date. The presumption against retrospective interference with accrued rights therefore applied. Applications made after 30 January 2001 were, however, to be determined under the amended definition. The two preliminary issues were answered accordingly.

First-instance determination of two preliminary issues in proceedings seeking rectification of the Register of Town and Village Greens. No appellate history was stated.