Betterment Properties (Weymouth) Ltd v Dorset County Council

This appeal is about town and village greens: specifically, about the process by which land which has been registered as a town or village green under the Commons Registration Act 1965 may be removed from the register. The land in question extends to some 46.2 acres in Weymouth. It was registered as a town or village green in 2001, following an inquiry presided over by three members of Dorset County Council, which is the registration authority under the 1965 Act. Betterment Properties (Weymouth) Ltd, the claimant, which acquired the land in 2004, seeks to have it removed from the register, and applied to the court under section 14 of the 1965 Act for that purpose. Two preliminary issues were identified, the answers to which affect the nature of the process and the question to be resolved at the eventual hearing. These were determined in favour of the claimant by Lightman J in a judgment given on 2 March 2007. With permission granted by the judge, Dorset County Council appeals against both rulings.

The two points can be summarised thus.

Where (as in the present case) land has been added to the register of town and village greens under section 13 of the 1965 Act, section 14 provides that the High Court may order the register to be amended if, relevantly, it appears to the court that no amendment or a different amendment ought to have been made, and the court deems it just to rectify the register. Here the land was added to the register in 2001; the application under section 14 was made in 2005. The question is as to the nature of the hearing before the High Court under this section: is the jurisdiction of the court by way of a rehearing, or appellate, or is it on some other basis and if so what? Plainly, if that can be settled before the hearing is undertaken, a good deal of potential for confusion and waste of time and energy will be avoided.

The second point is this. The 1965 Act contained a definition of town or village green, on the basis of which the original application under section 13 was made in 1997. Relevantly it required 20 years’ use of the land by a section of the public defined in a particular way, but the 20 years need not have been continuous until the application for registration. By section 98 of the Countryside and Rights of Way Act 2000 that definition was amended, so as to change the definition of the section of the public whose use was necessary, but to require the use to continue up to the date of the application. The amended section came into force on 30 January 2001, two months after the passing of the Act itself, after the hearing of the inquiry under section 13 but before the decision had been made. Should the amended or the original definition have applied for the purposes of the application under section 13? In practice the amended definition was applied. If the original definition should have been applied, the evidence placed before the inquiry will need to be reconsidered in a different light.

The judge held that the hearing was not akin to judicial review, and was not really like an appeal either, that the evidence before the original inquiry should be considered, but that parties could adduce further relevant evidence if they wished. He also held that the original definition of town or village green should have been applied.

The original applicant under section 13 was not able, for personal reasons, to take part in these proceedings, nor has any other person who is interested as a local owner or occupier sought to resist the Claimant’s proceedings. Accordingly it is left to Dorset County Council, as registration authority, to oppose the application, and it is the appellant in this court.

Until 2004 the land in question belonged to members of the Curtis family. In 1994 Mrs Joan Horne made a first application under section 13 to register the land as a town or village green, but that did not proceed. In 1997 she applied again, on behalf of the “Society for the Preservation of Little Francis and Markham”. The application was held in abeyance for some time, pending the resolution of other proceedings, ultimately decided by the House of Lords in June 1999: R (Sunningwell Parish Council) v Oxfordshire County Council [2000] 1 AC 335, which I will call Sunningwell. This case decided a number of important issues about town and village greens.

After that decision, Mrs Horne’s application was taken forward. Dorset County Council decided to hold a non-statutory inquiry, presided over by a panel of three councillors, and a hearing took place on 7, 8 and 11 December 2000. Many witnesses were called, and statements were read from some who were unable to attend. Mrs Horne’s application was put forward on the basis that relevant use of the land had taken place for 20 years from 1 August 1970, by local inhabitants. Under the amended definition, it would be necessary for that use to have continued at least until the date of the application in 1997. It seems that, for the most part, use had in fact continued until the time of the hearing, though there was an issue as to whether that use had been as of right since 1995 or thereabouts.

The decision of the panel was announced in a letter from the Council dated 5 June 2001, which recorded that the panel accepted the evidence of use over 31 years from 1970 to 2001, on the part of a significant number of inhabitants of Wyke Regis, said to be a neighbourhood forming part of the locality of the borough of Weymouth and Portland.

Later in 2001 a member of the Curtis family sought to challenge the decision by judicial review. Permission to apply was refused, and this was not pursued, reserving the right to apply under section 14. In due course the Claimant acquired the land in 2004, and started these proceedings in December 2005.

I must set out certain provisions of the 1965 Act, starting with section 13.

The regulations are the Commons Registration (New Land) Regulations 1969. It was held in Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 (which I will call Oxfordshire v Oxford) that land “becomes” a town or village green on registration as such, not on the completion of the necessary period of use.

Section 14 of the Act, directly in issue on the first of the questions before us, is as follows:

No regulations were ever made under which an error could be corrected, so that part of the section is irrelevant. Given that the register has been amended to show a town or village green under section 13, what is required for an application under section 14 is

that it should appear that no amendment or a different amendment ought to have been made, and

that it be just to rectify the register so as to cancel the amendment.

The definition of town or village green in section 22 was originally as follows:

Only the third element of the definition is relevant to the present case. It was held in Sunningwell that “sports and pastimes” are not two distinct activities, both of which must have been pursued, but a composite phrase, so that it is sufficient if an activity which can be characterised as a sport or a pastime has been indulged in on the land for the necessary period.

The amended definition, taking effect from 30 January 2001, is as follows:

No regulations have been made by which provisions are prescribed for the purposes of paragraph (1A)(b). Therefore, the relevant use has to have continued; in Oxfordshire v Oxford it was held that it had to continue until the date of the application. On the other hand, the use can be on the part of a significant number of the inhabitants of any neighbourhood within a locality.

The 1965 Act, as amended, has been repealed, prospectively, by the Commons Act 2006, the relevant provisions of which are not yet fully in force.

The significance of the starting date of 1 August 1970 for the use relied on in support of the application under section 13 is that, under the 1965 Act, all town or village greens were to be registered by 31 July 1970, and no land not so registered could constitute a town or village green: see section 1(2)(a). Thus on 31 July 1970, this land was deemed not to be a town or village green, because it had not been registered. However, this did not preclude later claims under section 13. That is what Mrs Horne invoked by her application in 1997.

The Appellant argues that the role of the court under section 14 is, in essence, to consider an appeal against the decision of the registration authority under section 13, and that although section 14 does not speak of an appeal, that is what the court would be hearing. Accordingly, it is argued, no evidence should be adduced before the High Court unless it can be justified as fresh evidence which could be admitted on an appeal within the court structure in accordance with Ladd v Marshall [1954] 1 W.L.R. 1489. The Respondent on the other hand points out that the section is not drafted in terms of an appeal, and contends that it is open to any party to adduce whatever evidence it wishes, subject to the court’s exercise of its case management powers, though the evidence which was before the inquiry should be put before the court and should be capable of being admitted as evidence subject to the court’s directions. The judge accepted that submission, and so would I.

Mr Hobson for the Appellant relies above all on the words “ought to have been made” in section 14, as showing that the court’s function is to review the authority’s decision, as to whether it ought or ought not to have been made as it was, which he submits can only properly be considered in relation to the evidence which was before the authority at the time. That approach does not leave scope for admitting additional evidence of any kind, even if Ladd v Marshall were satisfied, and appears to be more akin to judicial review. It does not seem to me that the words “ought to have been made” bear the weight that Mr Hobson seeks to ascribe to them. I do not regard them as pointing to a review based only on the material before the registration authority (i.e. what it should have done on the information that it had) rather than to a review at large (i.e. what should have been done in the light of whatever information is available to the court). They are equivocal, and guidance has to be found elsewhere.

It seems to me to be relevant that, although in practice registration authorities do arrange for inquiries to be conducted on applications under section 13, the requirements of that section are extremely limited. The procedure is elaborated somewhat in the New Land Regulations. These prescribe the form of application, which is to be supported by a statutory declaration and by such further evidence, if any, as the authority may require, and to be accompanied by copies or abstracts of every document relating to the matter in the possession or under the control of the applicant, or of which he has the right to the production. The authority must then send notice of the application to anyone whom they have reason to believe to be an owner, tenant or occupier of any part of the land, or to be likely to wish to object to the application, and give public notice of the application, providing for statements in objection within a given time. Under regulation 6 the authority must then proceed to the further consideration of the application. Nothing in the regulation requires a hearing of any kind. In practice, with a substantial number of applications under section 13 having arisen since 1990, and in particular since the decision in Sunningwell, many authorities do arrange for inquiries to be held, often presided over by a legally qualified person, and with relatively formal procedure. We were shown an example of directions issued by Mr Vivian Chapman QC in relation to a recent inquiry of this kind. Nevertheless, it would be open to an authority to proceed in a less elaborate and formal way, and no doubt in some cases this is what happens. The proper interpretation of section 14 cannot depend on how the process under section 13 was handled, though the detail of the procedure under section 14 in any given case will no doubt be affected by what happened on the section 13 application.

It is also to be noted that provision could have been made under the statute for the correction of errors, by way of the regulations mentioned in section 14(b), which were never made. That also seems to me to support the view that, absent such regulations, the process under section 14 itself should be taken to be at large.

Mr Hobson’s concise submission proceeds from the words “ought to have been made”, and relies on the proposition that, if the process under section 13 has not been properly or fairly conducted, an aggrieved party has a remedy by way of judicial review. Not only is that the only remedy for a party who complains of the rejection of an application under section 13 (as in Sunningwell) but it is also open to an objector who considers that his objection has not been given a proper hearing: see R (Whitmey) v Commons Commissioners [2004] EWCA Civ 951, [2005] QB 282. He argues that, if there has been a satisfactory non-statutory inquiry, nothing can be gained by the reiteration of the process with a full hearing with oral evidence. Given that the application under section 14 is not subject to a time limit running from the date of the amendment effected under section 13, witnesses who gave evidence and were fully cross-examined at the inquiry may not be available to give that evidence again.

It seems to me that the absence of a time limit is a pointer away from Mr Hobson’s theory of an appeal. If section 14 were to be regarded as being in the nature of an appeal, one would expect there to be a time limit running from the date of the original decision.

There is some force in his comment about the possible unavailability of elderly witnesses who gave evidence before the inquiry. However, the judge’s solution would respect that, in that he contemplated that the hearing in court under section 14 could well have all or any part of the evidence at the inquiry placed before it. (In the present case the whole proceedings at the inquiry were transcribed, so there is no difficulty as a matter of record.) It would then be for the judge to decide what reliance should be placed on any part of that evidence, which would depend on what the issues are at the hearing under section 14, and on practical matters such as the availability or otherwise of particular witnesses.

In that respect the judge found support in the decision of the Court of Appeal in Jones v A-G [1974] Ch 148 under the Charities Act 1960. That case was concerned with an appeal against an order made following an inquiry made under statutory powers by the Charity Commission, which had resulted in a written report. The court held that the issues were at large, but that the contents of the report should be admissible before the judge, so that it would not be necessary to start entirely from scratch.

Lightman J explained his approach to the present issue in paragraph [15] of his judgment, as follows:

I agree with that, and with the judge’s reasons for coming to that conclusion, as expressed, in particular, in his paragraph 16. There he referred, among other factors, to the major significance for a landowner of registration of land as a town or village green, with the blight that this casts on any development, and to the relatively simple and informal nature of the procedure under section 13, with, in particular, no provision for the service of witness summonses or disclosure of documents.

Mr Laurence for the Respondent stressed the point that, if the hearing were subject to limits as to the admission of evidence, this might be disadvantageous to local inhabitants, for example if it were necessary for them to seek to uphold the registration on a different basis from that on which it had originally proceeded. That might be relevant in the present case if, as the judge held, the original definition of town or village green ought to have been applied, so that it would be necessary to find use by the inhabitants of a locality, not just of a neighbourhood. Although the application, when originally submitted, must have proceeded on the basis of a locality, it is not altogether clear how that requirement would have been satisfied, given the geographical spread of those who gave evidence of their use of the land.

It seems to me, moreover, that the words at the end of the section, as to whether it would be just to rectify the register, must allow evidence to be given to the court in addition to that which was taken into account in the procedure under section 13. Mr Hobson pointed out that this issue is only to be addressed once the court has concluded that no amendment, or a different amendment, ought to have been made, so he argued that this is a discrete point, not affecting the material which should be before the court on the principal question. In some cases that may be so, but it seems to me that it would not always be possible to isolate the two issues one from the other.

Mr Hobson made another point, based on the different remedies available according to whether the complaint against the registration authority is that it made an amendment which it ought not to have made (leading to a section 14 application) or that it did not make an amendment that it ought to have made (in which case judicial review is the only remedy). He submitted that the anomaly of this contrast ought not to be widened further than it has to be, and that therefore the process under section 14 should be held to be closer to, rather than more different from, a judicial review process. I accept that this is an anomaly, the Act not having provided a statutory remedy for rejection of an application under section 13. It does not seem to me, however, that this factor would be a safe or satisfactory guide to the interpretation of section 14.

Our attention was drawn to a very different provision, which is for an appeal by way of case stated, in section 18 of the 1965 Act, in the case of decisions by the Commons Commissioners, limited to errors of law. In a sense that does no more than point out that the legislative draftsman could perfectly well have created a remedy by way of appeal, in section 14, if this had been the intention. Mr Hobson pointed out, correctly, that proceedings under section 13 can be more informal than those of the Commons Commissioners. That may explain why section 14 is in such different terms. It seems to me to support the Respondent’s contention and the judge’s conclusion, rather than that of the Appellant. It seems to me, for all these reasons, that the judge was right in his decision on the first issue.

When the definition in section 22 was amended by the 2000 Act, the Act made no transitional provision as to the application of the new definition. In Oxfordshire v Oxford the House of Lords held that the new definition applied to all applications for registration made under section 13 after the definition had been amended. Lord Rodger expressed this point at paragraph 123 at the conclusion of a passage on which Mr Hobson relied, for the Appellant, and which I will therefore quote in full, from paragraph 116:

That “rather different” issue is that which arises in the present case. The judge decided that the unamended definition applied to the determination of an application made before the date of the amendment, above all on the basis that the determination was a judicial, not an administrative, act, and that therefore it was affected by the presumption against retrospectivity, in a way which an administrative process would not have been. At paragraph 32 he said this:

The judge was also influenced by other factors, including, as he said at paragraph 35, the fact that, by section 103(2) of the 2000 Act, Parliament postponed for a two month period the coming into force of the amendment effected by section 98. If the amended definition was to apply to applications pending when the amendment came into effect, there would be little point in postponing the date on which it came into force. That would only exclude from the effect of the amendment any pending applications which were actually determined during that two month period.

For the Appellant, Mr Hobson submitted that, in principle, when making any decision the law should be applied as it is at the date of the decision, subject, however, to the presumption against retrospective application of a change in the law if it would affect a vested right. He pointed out that the decision in Oxfordshire v Oxford applies the amendment to the process of determining the effect of acts done before the amendment came into effect, and accordingly submitted that there is no reason not to apply the amended definition where the application has already been made but has not been determined. The decision of the House of Lords in Oxfordshire v Oxford also shows that there is no vested right in an applicant which would be affected adversely with retrospective effect, because no right comes into being until the moment of registration (by virtue of section 10).

He also renewed his submission to the judge that the registration authority’s task, on an application under section 13, was administrative, not judicial, and that this was so notwithstanding that the authority has to carry out its relevant functions lawfully and fairly. In relation to this submission Mr Laurence showed us two other passages from the speeches in Oxfordshire v Oxford: Lord Hoffmann at paragraph 61:

In both these respects, he submitted, the nature of the function of the registration authority under section 13 was to be regarded as more akin to a judicial than to an administrative act.

It is true that, because the 1965 Act makes registration conclusive, an applicant cannot assert that relevant land is already a town or village green at the date of application, in the way that a party might assert, in judicial proceedings, the acquisition of an individual profit à prendre by prescriptive use over 20 years. However, it seems to me, as it did to the judge, that the position of an applicant under section 13, who asserts that the relevant land has been the subject of use by a relevant section of the public for sports and pastimes over a relevant 20 year period, is closely analogous to that of such a litigant. Just as the presumption against retrospectivity would apply in relation to a claim made in such proceedings, so, as it seems to me, despite the important difference arising from the requirement of registration and its conclusive effect, the same presumption applies to an applicant under section 13 whose application had already been made before the definition of town or village green was changed by Parliament. I accept that this produces a contrast with the case where the application had not yet been made, and that, subject possibly to issues of res judicata, an applicant with an application pending on 30 January 2001 might be able to make a fresh application thereafter to take advantage of the amended definition. It is easy to postulate what might appear to be anomalies resulting from the distinction as to the date of the application. Nevertheless, it seems to me that the presumption against retrospectivity does apply where the application was pending on 30 January 2001.

I therefore agree with the judge that, Mrs Horne having made her application under the 1965 Act as it stood before amendment, she was entitled to have it determined, as was the owner of the land, on the basis of the law as it then stood. If Parliament had provided for the amended definition to apply to applications already pending, that would have been a different matter, but it did not and accordingly, in my view, the presumption applies and there is nothing to displace it.

The judge referred to a number of prior decisions, most of which he found consistent with his own view, on each of the two issues in the case. I agree with his assessment of these cases, and I do not find it necessary to refer to them, other than to say that I share the judge’s doubts about the analogy drawn by Waller LJ in R (Whitmey) v Commons Commissioners [2004] EWCA Civ 951 at paragraph 59 between a decision whether or not to register land as a town or village green under section 13 and a decision on a planning application.

For those reasons I would dismiss this appeal on both issues.

I agree.

I also agree.