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.

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.

“13.

Regulations under this Act shall provide for the amendment of registers maintained under this Act where ….

(b)

any land becomes common land or a town or village green ….”

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:

“14.

The High Court may order a register maintained under this Act to be amended if

…

(b)

the register has been amended in pursuance of section 13 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of regulations made under this Act and …

the court deems it just to rectify the register.”

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

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

“(1)

In this Act, unless the context otherwise requires

………..

‘town or village green’ means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years.”

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:

“(1)

In this Act, unless the context otherwise requires

……….

‘town or village green’ means land which has been allotted by or under any Act for exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or which falls within subsection (1A) of this section.

(1A) Land falls within this subsection if it is land on which for not less than 20 years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either –

(a)

continue to do so, or

(b)

have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.”

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:

“15.

In my judgment on the face of the statute the court is free to adopt the procedure best calculated to enable a just and fully informed decision to be reached whether “no amendment or a different amendment ought to have been made”, whether it is just to rectify the register, what should stand as evidence and what evidence should be admitted. The court in exercise of its case management powers will have regard to the process adopted by the registration authority or any panel when the amendment of the register under section 13 of the 1965 Act was made and the evidence adduced before it. It will no doubt have in mind that with the passage of time recollections will have dimmed and potential witnesses may have died or ceased to be available. It may (for example) direct that evidence (in particular if unchallenged) adduced before the registration authority or any panel shall stand as evidence and any finding by it shall stand: (a) as a finding of fact at the hearing before the court; (b) as evidence; or (c) as a finding of fact in the absence of evidence to the contrary; and in deciding on the admissibility of evidence the court will no doubt bear in mind that no amendment shall be rectified unless it is just to do so and that it may be unjust to order rectification on the basis of new evidence e.g. which cannot now be challenged but could have been when registration took place.”

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:

“116.

My Lords, for the reasons given by Lord Hoffmann, I am satisfied that an area does not become a village green unless and until it is registered. It follows that I would reject Mr Edwards’ submission that, before section 22 was amended by section 98, an area of ground on which the inhabitants of a locality had indulged in sports and pastimes as of right for 20 years or more had ipso facto become a village green. The position was, rather, that once that period had elapsed it was open to an interested party to apply to have the register of town and village greens amended to include an entry for the area in question. The applicant would not have needed to show that the inhabitants were continuing to indulge in the sports and pastimes when the application was made.

117.

Section 98 came into force on 30 January 2001, two months after the 2000 Act received the royal assent: section 103(2). As the House now holds, under the amended version of section 22, anyone applying to have the register amended had to show either (a) that the inhabitants continued to indulge in the sports and pastimes at the date of his application or (b) that they had ceased to do so for not more than a prescribed period. Since no period has ever been prescribed for the purposes of paragraph (b), the operative paragraph is (a).

118.

Miss Robinson lodged her application after 30 January 2001 but on the basis that the area had become a village green in 1990. Her counsel, Mr Edwards, contended, however, that the amendment to section 22 did not apply “retrospectively” and so, where the period of 20 years had been completed before section 22 was amended, an applicant still did not need to prove that the inhabitants were continuing to indulge in the sports and pastimes at the date of the application. An applicant such as Miss Robinson could rely on section 22 in its unamended form.

119.

Although the issue was presented as one of the retrospective effect of section 98 of the 2000 Act, that is to ignore its true nature. I refer to, without repeating, the lengthy observations on this topic in my speech in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816. Put shortly, there is nothing in the 2000 Act to rebut the powerful presumption that section 98 ought not to be understood as affecting the substantive law in relation to events taking place before it came into force: Wainwright v Home Office [2002] QB 1334, 1345, paragraph 27 per Lord Woolf CJ. In any event, despite the language he used, that was not really the point Mr Edwards was making. The true question raised by his submission is whether section 98 applied generally or applied only to situations which arose after it came into force, with the result that the unamended version of section 22 continued to apply to other cases. If section 98 applied generally, then the amended version of section 22 applied, for the future, to situations which were already underway when it came into force.

120.

In effect, Mr Edwards was arguing that section 98 did not apply generally but applied only to situations where the relevant activities of the inhabitants occurred after 30 January 2001. Accordingly, for an indefinite period of decades or more into the future, in making an application based on activities before that date, an interested party could rely on the unamended version of section 22. Down all those decades, as he accepted, two different systems would operate in parallel, one which required the applicant to prove the continuation of the sports and pastimes and one which did not. I would reject the submission.

121.

First, there is nothing in section 98 or in any other provision of the 2000 Act to limit its application in this way. Moreover, Mr Edwards’ interpretation would mean that Parliament had chosen to postpone the operation of the amendment indefinitely in what might well be a significant number of cases. He did not advance, and I am unable to see, any reason why Parliament would have intended that the new policy which it was enacting should not apply to all applications made after section 98 came into force. Indeed, the administrative and other complications of operating two different systems afford powerful reasons for supposing that Parliament would have intended that there should be only one.

122.

The position might have been different if it could be said that the amendment to section 22 prejudicially affected a vested right of the applicant. But, by the time the amendment to section 22 took effect, the applicant had not applied to have the register amended. Like others in a similar position, she simply had a right to apply which she had not yet exercised. And, since the purpose of legislation is to alter the existing legal situation, there is no presumption that it will not alter rights which individuals have, but have not exercised. Cf Abbott v Minister for Lands [1895] AC 425, 431, per Lord Herschell LC. On the contrary, like everyone else, those interested in having the register of village greens amended ran the risk that sooner or later Parliament might intervene to change the law regarding such applications. That, and nothing more, is what happened when Parliament enacted section 98 and amended section 22: applicants found that they now had to meet an additional requirement before they could have the register amended. No question of vested rights arises.

123.

I am accordingly satisfied that section 98 applied generally and that the amended version of section 22 applied to situations which were already underway when section 98 came into force, including situations where an application was made after that date on the basis of the inhabitants’ activities before that date. Therefore the amended version of section 22 applied to Miss Robinson’s application. It is unnecessary to express any view on the rather different issue of applications which had been made but which had not been determined when section 98 came into force.”

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:

“32.

In my judgment the determination involved a judicial and not an administrative determination. The issue for determination was whether Mrs J Horne, having exercised her statutory right to apply for registration on the evidence adduced or to be adduced by her and other interested parties, had a right to the registration she applied for. Inherent in the right to registration was the right on registration to use and enjoy the Land as a town or village green. In its decision whether she had a right to registration the registration authority (and on its behalf the Panel) were under a duty to hear impartially and with an open mind the evidence and representations addressed to them by all who had an interest in the outcome, to make findings of primary fact, to draw inferences from primary fact and to apply the relevant law. The only question for the registration authority or Panel was whether the statutory conditions for registration (i.e. the criteria laid down in the applicable definition) were satisfied. In its determination there was no scope for application of any administrative discretion or any balancing of competing interests. The clearest contrast is to be drawn between a determination of an application for registration as a town or village green and an application (e.g.) for planning permission. The applicant for planning permission has not (save and unless statute otherwise provides) a right to the grant of planning permission: the right applied for only arises if and when permission is granted and in its decision-making whether to grant planning permission the planning authority has to balance competing interests and has to exercise an administrative discretion. The decision of the registration authority is akin to the decision of a planning authority in the sense that both may be reviewed on an application for judicial review, but it is not akin for present purposes.”

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:

“the registration authority has no investigative duty which requires it to find evidence or reformulate the applicant’s case. It is entitled to deal with the application and the evidence as presented by the parties.”

Lord Scott at paragraph 102:

“The county council as registration authority … have a quasi-judicial role under the 1965 Act and must discharge it to the best of their ability.”

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.