Taylor v Betterment Properties (Weymouth) Ltd & Anor

Use of land is not “as of right” where the owner takes reasonable and proportionate steps to communicate opposition. Effective signs need not remain visible to every user. Where adequately placed signs are repeatedly removed by local inhabitants, the community cannot rely on their removal to establish acquiescence.

Rectification of a town or village green register under section 14 of the Commons Registration Act 1965 requires both an erroneous registration and a positive finding that rectification is just. The court balances the vindication of property rights against prejudice, delay, changes of ownership and good administration. Delay is relevant and, exceptionally, may itself support an inference of prejudice.

Land near Weymouth was registered as a town or village green after local inhabitants claimed at least 20 years’ recreational use as of right. Betterment subsequently purchased the land and sought rectification under section 14 of the Commons Registration Act 1965.

Morgan J, in [2010] EWHC 3045 (Ch), found that the former owners had erected and replaced signs, repaired fences and warned off users until about 1984. He held that the use was contentious and that rectification was just. The appellant challenged those conclusions. The appeal concerned what an owner must do to make recreational use contentious, whether works had interrupted use of part of the land, and how justice should be assessed under section 14.

1. Appeal dismissed. Permission to appeal on the issue of justice was granted, but Morgan J’s order rectifying the register was upheld.

2. Use capable of supporting registration must be peaceable, open and without permission. Opposition must ordinarily be communicated by reasonable outward steps. A reasonable user is attributed the perception and understanding of a reasonable person in the actual user’s position, but is not deemed to have seen something that was never present. The owner’s response must be proportionate to the nature and scale of the use, although it need not be fail-safe or achieve notice to every individual user.

3. The former owners had erected sufficiently numerous, visible and clearly worded signs. Those signs would have communicated that users must remain on the footpaths and that wider use was trespass. Their repeated removal by local inhabitants did not convert subsequent use into peaceable use. Section 22(1) of the Commons Registration Act 1965 required the conduct of the inhabitants as a whole to be considered. The appellant could not isolate users who had not seen the signs where their ignorance resulted from other inhabitants’ unlawful removal of them. Further newspaper advertisements or leaflets were unnecessary.

4. Although unnecessary to the result, the judge was also entitled to find that drainage works interrupted use of the works site. A third party’s activity stops time where it physically excludes local inhabitants and is incompatible with continued use as a village green. Complete fencing and construction use satisfied that standard.

5. An erroneous registration does not itself justify rectification under section 14. The court must positively determine that rectification is just, balancing the landowner’s property rights against prejudice to local inhabitants and other relevant interests. Change of ownership and delay are relevant. Sullivan LJ, whose reasoning Carnwath LJ preferred on these matters, considered that a purchaser’s informed commercial risk may be significant and that exceptionally long delay may permit prejudice to good administration to be inferred. Neither consideration prevented rectification here.

6. The local inhabitants would lose recreational rights which had never validly arisen. Their interest in preventing development was governed by planning policy; village-green registration was not an additional form of planning control. Rectification was therefore just.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 250, granted permission on the justice issue but dismissed the appeal and upheld rectification.
• High Court, Chancery Division: Morgan J held in [2010] EWHC 3045 (Ch) that the requisite use had not been as of right and that rectification was just.
• Court of Appeal: In preliminary proceedings, [2008] EWCA Civ 22 upheld Lightman J’s conclusions concerning the nature of the section 14 jurisdiction and the applicable statutory definition.
• High Court, Chancery Division: Lightman J decided the preliminary issues in [2007] EWHC 365 (Ch), holding that section 14 permitted the court to adopt the procedure and evidence needed for a just and fully informed decision.