Summary
For registration under the original class c definition of a town or village green, qualifying use had to be predominantly by inhabitants of a single locality. A locality meant an administrative district or an area with legally significant boundaries. Use by inhabitants of two separate areas could not satisfy that requirement, even where the land lay between them and served both communities.
Under the amended definition, use by a significant number of inhabitants of one or more neighbourhoods within one or more localities may suffice. On an application to rectify the register, the court must independently determine whether the registration ought to have been made and whether rectification is just. Justice requires a balancing of the landowner’s position, the users’ interests, delay and reliance. The register was rectified.
Factual background
Paddico sought rectification under section 14 of the Commons Registration Act 1965 of the registration of Clayton Fields as a town or village green. The registration had been made in 1997 on the basis of recreational use by residents of Edgerton and Birkby.
The Council did not actively participate. The defendants argued that the registration was supportable by reference to other localities, parishes, the Edgerton Conservation Area, or the amended statutory test introduced by section 98 of the Countryside and Rights of Way Act 2000. The issues were whether the original registration ought to have been made, whether it could be supported on another basis, and whether rectification was just.
Held
- Disposition. The register was ordered to be rectified by removing the 1997 registration of Clayton Fields as a town or village green.
- Section 14 required four conditions: registration pursuant to section 13; an appearance that no amendment or a different amendment ought to have been made; inability to correct the error under the regulations; and that the court deemed rectification just. The application was not an appeal from the registration authority. The court was entitled to conduct a full review of the legal principles and underlying evidence.
- Under the original section 22(1) class c definition, locality meant an administrative district or an area within legally significant boundaries. The qualifying users had to be inhabitants of a single locality. Although the judge considered that the statutory language might naturally have permitted more than one locality, he held himself bound by the subsequent high-level authority treating the expression as singular.
- Edgerton and Birkby were not shown to be legally significant administrative districts. In any event, the evidence showed a broadly even division of users between them and did not establish predominant use by either one. The Conservation Area and the relevant parishes did not provide an alternative basis because the evidence did not satisfy the twenty-year predominance requirement.
- The amended section 22(1A) test was more liberal. It required use by a significant number of inhabitants of a locality or of one or more cohesive neighbourhoods within one or more localities. If the registration had not already existed, a later application might have succeeded on that basis. However, use after registration was not use as of right, since it occurred pursuant to the registration.
- That point did not automatically determine the justice question. The court balanced the original error, the probability that the owner would have prevented later qualifying use, the landowner’s loss of development rights without compensation, the fourteen-year delay, the absence of proved reliance by residents, their legitimate expectations, and the proposed provision of recreational space. The balance favoured rectification.
The court’s approach to earlier authorities
Available to signed-in members.
Appeal route
- This judgment [2011] EWHC 1606 (Ch) High Court (Chancery Division)
- Appealed to[2012] EWCA Civ 262Outcomeappeal allowed by majority
Key cases cited
14 authorities cited.
- R (on the application of Lewis) v Redcar and Cleveland Borough Council and another [2010] UKSC 11
- Oxfordshire County Council (Respondents) v. Oxford City Council (Appellants) and another (Respondent) (2005) Oxfordshire County Council (Respondents) v. Oxford City Council (Respondents) and another (Appellant) (2005) Oxfordshire County Council (Appellants) v. Oxford City Council and another (Respondents) (2005) (Conjoined Appeals) [2006] UKHL 25
- Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) (Appellant) [2003] UKHL 60
- R v Oxfordshire County Council, Ex parte Sunningwell Parish Council [2000] 1 AC 335
- Leeds Group Plc v Leeds City Council [2010] EWCA Civ 1438
- Betterment Properties (Weymouth) Ltd v Dorset County Council [2008] EWCA Civ 22
- Betterment Properties (Weymouth) Ltd v Dorset County Council & Anor [2010] EWHC 3045 (Ch)
- Betterment Properties (Weymouth) Ltd v Dorset County Council [2007] EWHC 365 (Ch)
- R (Oxfordshire and Buckinghamshire Mental Health NHS Foundation Trust) v Oxfordshire County Council [2010] LGR 631
- R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] JPL 975
- R (Laing Homes Ltd) v Buckinghamshire County Council [2003] 3 PLR 60
- Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931
- R v Suffolk County Council, ex parte Steed and Steed [1995] 70 P & CR 487
- New Windsor Corpn v Mellor [1975] Ch 380
Sign in to see how the court treated each authority. A free account is enough.
Cases citing this case
5 later cases · 1 positive · 3 neutral · 1 caution
Most senior citing decisions:
- Lancashire County Council, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs & Anor [2018] EWCA Civ 721 approved
- Taylor v Betterment Properties (Weymouth) Ltd & Anor [2012] EWCA Civ 250 considered
- St John's College, Cambridge, R (On the Application Of) v Cambridgeshire County Council [2017] EWHC 1753 (Admin) explained
- Allaway & Anor, R (on the application of) v Oxfordshire County Council & Ors [2016] EWHC 2677 (Admin)
- Lancashire County Council v The Secretary of State for the Environment, Food and Rural Affairs & Anor [2016] EWHC 1238 (Admin)
Sign in for the full treatment table. A free account is enough.