Betterment Properties (Weymouth) Ltd v Dorset County Council

A statutory procedure for removing a town or village green from the register is neither an appeal confined to the original record nor a judicial-review exercise. Under section 14 of the Commons Registration Act 1965, the High Court conducts a review at large. It may consider relevant new evidence, while using case management to preserve the inquiry record and avoid unfairness. The court must decide whether no amendment or a different amendment ought to have been made and whether rectification is just. Where the statutory definition changes while a registration application is pending, the presumption against retrospectivity applies unless Parliament clearly provides otherwise. The application is determined under the law in force when it was made.

Land at Weymouth was registered as a town or village green under section 13 of the Commons Registration Act 1965 in 2001, following an application made in 1997 and a non-statutory inquiry. The claimant acquired the land in 2004 and applied in 2005 under section 14 to rectify the register. Lightman J held that the section 14 hearing was a review at large, with the original inquiry evidence available and further relevant evidence admissible. He also held that the original statutory definition applied because the amendment had come into force while the application was pending: [2007] EWHC 365 (Ch).

The Council appealed both preliminary rulings. The central issues were the nature of the section 14 jurisdiction and whether the amended definition applied to an application made before, but determined after, the amendment took effect.

Lord Justice Lloyd gave the leading judgment. Lord Justices Rix and Laws agreed. The appeal was dismissed on both preliminary issues.

1. Nature of the section 14 jurisdiction. The High Court’s jurisdiction under section 14 of the Commons Registration Act 1965 is a review at large. It is neither an appeal confined to the material before the registration authority nor a judicial-review exercise. The words requiring the court to consider what amendment ought to have been made do not impose an appellate limit on the evidence.
2. Evidence and case management. The evidence placed before the section 13 inquiry should normally be available to the court, but the court may admit further relevant evidence. It may direct that inquiry evidence or findings stand as evidence or findings in the section 14 proceedings. Case management must take account of the procedure originally used, the passage of time, witness availability, whether evidence can be challenged, and whether rectification would be just. The approach in Jones v A-G [1974] Ch 148 supported this conclusion. The fresh-evidence restrictions applicable on an ordinary appeal under Ladd v Marshall [1954] 1 W.L.R. 1489 did not govern section 14 proceedings.
3. Statutory conditions. The court must first decide whether no amendment or a different amendment ought to have been made. It must then decide whether rectification is just. The absence of a time limit and the limited, potentially informal procedure under section 13 supported the at-large construction.
4. Amended definition. Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 established that the amended definition applied to applications made after commencement, including applications based on earlier use, but expressly left open the position where an application had already been made and remained undetermined. For that pending application, the presumption against retrospectivity applied. The applicant was entitled to have the application determined under the law in force when it was made. The conclusive effect of registration and the absence of a vested right before registration did not displace that presumption.
5. Subject to possible res judicata issues, a pending applicant might make a fresh application after the amendment. The court also shared doubts expressed below about the analogy drawn in R (Whitmey) v Commons Commissioners [2004] EWCA Civ 951 between registration and planning decisions.

• Court of Appeal (Civil Division) — [2008] EWCA Civ 22: dismissed the Council’s appeal on both preliminary issues.
• High Court of Justice, Chancery Division — Lightman J, [2007] EWHC 365 (Ch): held that the section 14 hearing was a review at large and that the original definition applied to the pending registration application.