Betterment Properties (Weymouth) Ltd v Dorset County Council & Anor

For registration as a class c town or village green, use must be for lawful sports and pastimes, by the inhabitants of a locality, for the statutory period, and as of right. Use is not as of right where, viewed in the round, the circumstances would indicate to a reasonable user that the owner objected, continued to object and would support the objection by proportionate physical obstruction or legal action. Repeatedly repairing broken fences, erecting and replacing prohibitory signs, and warning users off may together make use contentious, even without proceedings for an injunction. The court’s jurisdiction under section 14(b) of the Commons Registration Act 1965 permits a full reconsideration of the evidence and legal principles. Where registration should not have been made, rectification is ordinarily just unless countervailing circumstances establish a real injustice.

The claimant owned land at Markham and Little Francis which had been registered in 2001 as a town or village green. The registration followed an application under section 13 of the Commons Registration Act 1965 and a non-statutory public inquiry. The original owners had objected, contending that public use was not by inhabitants of a locality and was not as of right.

After the registration, judicial review proceedings were discontinued on the express basis that the owners could pursue rectification under section 14. The claimant, which later acquired the land, applied for cancellation of the registration. The preliminary issues had been determined by Lightman J and the Court of Appeal. The central questions were whether the statutory requirements had been met and whether rectification was just.

1. Section 14 jurisdiction. The court was not confined to an appellate review of the registration decision. It could reconsider the legal principles and underlying evidence and determine whether no amendment, or a different amendment, ought to have been made.
2. Qualifying use. It was accepted that, apart from the works site, the land had been used for lawful sports and pastimes for a sufficient period. The relevant issue was whether that use was as of right.
3. Contentious use. Applying the principles in Sunningwell, Redcar and the authorities on nec vi, use is contentious where the circumstances indicate to users, or to a reasonable person with knowledge of them, that the owner actually objects, continues to object and will support the objection by physical obstruction or legal action. The owner must do what is proportionate to contest and endeavour to interrupt the use.
4. On the facts, before about 1984 the landowners repeatedly repaired broken fences, erected and replaced signs stating that the land was private or that the public should keep out, and warned users away. Taken together, these matters made the recreational use contentious. It was therefore not use as of right for the required 20-year period.
5. It was unnecessary to decide whether the relevant 20-year period had to be the period immediately preceding the application or could be any qualifying period ending after the statutory cut-off. The point was left open.
6. The works-site fencing independently interrupted use of the part of the land east of the western fence between December 1979 and at least April 1980. The cross-hatched land had also been included in the register contrary to the amended application.
7. Justice of rectification. Registration imposed burdens on the landowner and rights on local inhabitants which should never have arisen. The claimant’s purchase with knowledge of the registration did not make rectification unjust. The interests of nearby residents and the passage of time did not outweigh the need to restore the position that should have existed.
8. The register was ordered to be rectified so that the registration of Betterment’s land was cancelled immediately. Cancellation of the cross-hatched land was subject to a 28-day opportunity for its owner to object.

The judgment records that preliminary issues were decided by Lightman J, whose judgment was reported at [2007] 2 All ER 1000. The Court of Appeal dismissed the appeal on 6 February 2008, with the judgment of Lloyd LJ agreed by Rix LJ and Laws LJ. The present judgment determined the substantive section 14 application.