Leeds Group Plc v Leeds City Council

The amended town or village green regime applied in full to applications made from 30 January 2001. The neighbourhood limb was not postponed for 20 years, even where qualifying use began before commencement, because the legislation required continuing use up to the application date and intended to close the locality-based loophole. The amendment was prospective in substance. Drawing part of the 20-year period from before enactment did not make it impermissibly retrospective. Any unfairness to landowners was hypothetical, since they had at least two months to interrupt qualifying use. Under A1P1, the relevant question was whether a fair balance had been struck. It had, and the appeal was dismissed on both grounds.

Leeds Group appealed from a decision of the High Court Chancery Division, before HH Judge Behrens, concerning an application by Douglas Jones to register Yeadon Banks as a town or village green. The resumed appeal followed permission to argue Ground 4A, concerning the alleged retrospectivity of sections 98 and 103(2) of the Countryside and Rights of Way Act 2000, and Ground 4B, concerning compatibility with A1P1.

The central issues were whether the new neighbourhood-based limb of section 22(1A) of the Commons Registration Act 1965 applied to qualifying use occurring before commencement, and whether that interpretation unfairly impaired the landowner’s rights.

The Court of Appeal unanimously dismissed the appeal on Grounds 4A and 4B. Sullivan LJ gave the leading reasoning. Arden LJ agreed and amplified the A1P1 analysis. Tomlinson LJ agreed with both judgments on the resumed issues.

1. Ground 4A. Sections 98 and 103(2) of the Countryside and Rights of Way Act 2000 were clear and unambiguous. The amended definition in section 22(1A) of the Commons Registration Act 1965 applied in its entirety to applications made on or after 30 January 2001. Reading the statute as postponing the neighbourhood limb for 20 years would preserve the very locality-based loophole which Parliament intended to remove. The reasoning of the House of Lords in Oxfordshire County Council v Oxfordshire City Council [2006] 2 AC 674 applied with equal force.
2. The requirement for use to continue until the application date meant that pre-commencement use could form part of the relevant 20-year period. The amended regime therefore applied to situations already underway, without creating parallel systems or interfering with a vested right. The presumption against retrospective alteration of the law was explained in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 and did not alter that conclusion.
3. Any unfairness was hypothetical. Even in the most extreme scenario, a landowner had two months between enactment and commencement to interrupt use by closing gates, fencing boundaries, erecting notices or refusing entry. The appellant had more than three and a half years before the actual application. The decision in R v Oxfordshire County Council ex p Sunningwell Parish Council [2000] 1 AC 335 also meant that landowners were already on notice that substantial recreational use might support a public right.
4. Ground 4B. Under A1P1, the domestic classification of legislation as retrospective did not determine Convention compatibility. The question was whether a fair balance had been struck between the general interest and the landowner’s rights. Having considered the short transitional period, the existing notice arising from the locality-based regime, the public interest in closing the loophole, the simplicity of preventing use, and the absence of evidence undermining Parliament’s concerns, the court held that the balance was fair. The appeal on Ground 4B was dismissed.

1. Court of Appeal (Civil Division). On the resumed hearing, the court granted permission on Ground 4B and dismissed the appeal on both new grounds. The earlier judgment in the same litigation is reported at [2010] EWCA Civ 1438 and [2011] 2 WLR 1010. The earlier joinder judgment is reported at [2011] EWCA Civ 313.
2. High Court Chancery Division. The appeal was from a decision of HH Judge Behrens in claim CO/4193/2007. No separate citation or operative order of the High Court decision is stated.