Adamson v Paddico (267) Ltd

The factual background is set out in great detail in the judgment of Vos J [2011] EWHC 1606 (Ch). For present purposes, a brief summary will suffice, although it will be necessary to examine the chronology in a little more detail when considering the Appellant’s challenge to the judge’s conclusion that it was just to rectify the register.

The application to register Clayton Fields as a class c town or village green under section 13 of the 1965 Act was made on 9^th December 1996. On 14^th April 1997 the Council held an oral hearing before its Policy (General Purposes) (Executive) Sub-Committee (“the Committee”) which had delegated authority to determine the application.

The applicants for registration had relied upon user by the inhabitants of Edgerton and Birkby. At the hearing, Counsel representing the principal landowner, Geo. H. Haigh & Co Ltd. (“Haigh”), submitted that the application should be rejected because those using the land for lawful sports and pastimes had to come from a single locality which was an administrative area recognised by law, and Edgerton and Birkby were not such a locality.

Mr Hardy, the Secretary of the Clayton Fields Action Group (“CFAG”), who was one of the applicants for registration, represented CFAG before the Committee. He contended that “Birkby and Edgerton are well defined localities which have existed in Huddersfield for a very long time…. we are residents from there; it is a community.” After a short adjournment the Chairman of the Committee said:

“The decision of this committee is that the application for the registration of land at Clayton Fields, Edgerton under the Commons Registration Act 1965 section 13 is granted. That is the decision of this committee. Thank you.”

On the 14^th April 1997 Clayton Fields was added to the Register under register unit number KMC/VG2. The entry in the register said “Registration confirmed and finalised. Decision of Reg. Authority 14.4.97.”

In May 1997 Haigh commenced proceedings under section 14 for the rectification of the register. In April 2000 those proceedings were automatically stayed for want of prosecution under CPR 51 PD 19(1). In October 2004 Haigh transferred those parts (the majority) of Clayton Fields which it owned to Paddico (267) Ltd. (“Paddico”), the First Respondent. Paddico was registered as freehold owner on 15^th March 2005, and applied on 19^th December 2008 to lift the stay. Its application was refused by a Deputy Master, and an application for permission to appeal against the Deputy Master’s decision was refused by Sales J on 24^th March 2010. On 28^th January 2010 Paddico issued a new claim to rectify the register under section 14. This was the claim considered by Vos J. On 21^st June 2010 notice of discontinuance was filed in respect of the 1997 claim.

Before Vos J, Mr. Laurence QC submitted on behalf of Paddico that the register should not have been amended so as to add Clayton Fields as a town or village green because Edgerton and Birkby were not a “locality” for the purpose of Class (c) in section 22(1). CFAG did not have legal representation before Vos J. It was represented by its Chairman and Secretary, Mr. Magee and Mr. Hardy. They contended that there had been no error in the amendment to the register, that even if there had been an error, there were other areas which were a locality upon which registration could have been based (the Edgerton Conservation Area and the Parishes of Holy Trinity and St John were suggested), and that in any event, primarily because of delay, it would not be just to rectify the register.

Vos J said in paragraph 5 of his judgment that there were three basic questions he had to decide:

“(i)

Whether the Land ought or ought not to have been registered as a TVG by the Council for the reasons it relied upon on 14^th April 1997?

(ii)

If the Land ought not to have been registered, whether its registration can be supported on any of the alternative bases for which the Defendants contend?

(iii)

Whether the court deems it just to rectify the register within the requirement of section 14 of the 1965 Act?”

In answer to question (i) Vos J concluded in paragraph 101 that:

“In my judgment, on the materials available to the Committee in 1997, it was not justified in making the registration for one simple reason, namely the proper legal meaning of the words “any locality” in the class c definition in section 22(1). Despite the views that I expressed earlier as to the meaning of the term “locality” viewed in 1997, it has, I think, now been accepted at too high a level for me to gainsay that the term “any locality” is singular in the class c definition: “on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years”. I am bound to say that I would have construed the words “any locality” in the class c definition, in the original section 22(1) and in both limbs of section 22(1A), had I been starting with a clean sheet of paper, as meaning “locality or localities” in the way that Lord Denning MR and Brightman J suggested in the New Windsor case. I would also observe once again that the law was far less clear when, in 1997, the Committee made its determination. But since the matter has now been clarified, albeit obiter, at the highest level, I do not regard it as open to me to hold that “any locality” can be plural in section 22(1) or in the first limb of section 22(1A).”

He continued in paragraph 102:

“[T]he Committee must have thought that the user established was by inhabitants of the two suburban areas that they knew familiarly as Edgerton and Birkby… [Before us there was no dispute that this was the basis of the Council’s decision]…..but if that is what they did think, it was not good enough to satisfy the legal requirements.”

It was not good enough to satisfy the legal requirements because Edgerton and Birkby, however ancient and well understood they were as areas of Huddersfield, were neither “administrative districts” nor “areas within legally significant boundaries”. The Council had said that the two areas were of no legal significance. Therefore, the two areas were not localities for the purpose of section 22(1) (paragraph 106(i)); and even if they were localities, because the evidence showed “that there was a reasonably even spread of users over the two localities”, the user was not by the inhabitants of a single locality, as required by section 22(1) (paragraph 102).

In answer to question (ii) Vos J concluded that the registration of Clayton Fields could not have been supported on the basis of any other locality. Although the Edgerton Conservation Area could be regarded as a locality, it had not been in existence for the whole for the 20 year period relied upon in the 1996 application for registration, and the users were evenly split between those who lived in the Conservation Area and those who lived in Birkby, outside the Conservation Area. The parishes were localities but the users were evenly split between the two parishes, so that the application for registration could not have passed the predominance test in respect of any one parish.

When answering question (iii) Vos J carried out a balancing exercise (paragraph 119). The fact that the registration was not justified in 1997, and if not allowed in 1997 was very unlikely to have ever been obtained, was a very strong, but not conclusive, factor in favour of rectification, supported by the fact that the effect of not rectifying the register would be to deprive the landowner of the right to develop its land without compensation. The delay in bringing the application to a hearing (altogether some 14 years) was a significant factor against rectification, but little other prejudice had been demonstrated by the residents. Planning permission for housing development on the land had been obtained, which required that part of the site be made available for public recreational space. Balancing all those factors, Vos J concluded that it was just to rectify the register.

In paragraph 121 of his judgment Vos J said:

“I should not leave this case without expressing my disquiet at the outcome. It is caused almost entirely by the fortuity of Clayton Fields lying geographically between districts, neighbourhoods, parishes and localities, and by the unsatisfactory state of the law prior to the 2000 Act. I am by no means sure that the strict interpretation of the word locality in section 22(1) of the 1965 Act was mandated by the older cases, but that construction has now been reiterated too often and at too high a level for it easily to be changed. It may be hoped that the hangover of cases governed by the old law will be few and far between, and that the more liberal and intelligible rules contained in the 2000 Act and ultimately in the 2006 Act will hold sway for the future.”

The parties were agreed that there were two questions, whether Vos J erred in concluding that:

Mr. George QC submitted that the Council had been entitled to add Clayton Fields to the register upon the basis that the users came from two areas, Edgerton and Birkby, which would have been well-known by the members of the Committee. “Any locality” in class c in section 22(1) was not confined to a single locality, and the locality or localities did not have to be “administrative districts” or “areas within legally significant boundaries”; it was sufficient if they were a place or places with a clear identity, whose extent could be established by those (such as the members of the Committee) with local knowledge.

In support of this submission Mr. George contended that:

These are powerful submissions, and if we had been starting with a clean slate I might well have been minded to accept them. However, we are not starting with a clean slate. The introduction of class c village greens in the 1965 Act has led to a great deal of litigation. In R v Oxfordshire County Council Ex p. Sunningwell Parish Council [2000] 1 AC 335 (“Sunningwell”), Lord Hoffmann assumed, without deciding, that user by the inhabitants of any locality in respect of a class c green should be similar to that which would have established a custom (page 357 G).

The 2000 Act was passed on 30^th November 2000, dividing class c in section 22 into two limbs, the original “locality” limb, and the new “neighbourhood” limb. In R (Cheltenham Builders)Ltd. v South Gloucestershire District Council [2004] JPL 975 I said that the neighbourhood in the second limb had to be within a single locality (paragraph 88). I was wrong. In Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 (“Oxfordshire”) Lord Hoffmann (with whose speech Lord Rodger and Lord Walker agreed) considered the amendment of section 22 by the 2000 Act:

“25.

In R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, however, your Lordships’ House rejected requirement of a subjective state of mind by people using the land and thereafter, as Carnwath LJ observed in this case [2006] Ch 43, 61 registration of new village greens became “an area of unusually vigorous legal activity”. Once 20 years’ user had been established, the only substantial hurdle which the applicant for registration had to overcome was, as it had been in the Victorian cases on customary greens, proof that the user had been by the inhabitants of the defined locality. This requirement was relaxed by the House in the Sunningwell case [2000] 1 AC 335, 357-358 only to the extent of saying that not all the users needed to be inhabitants of the locality in question. It was sufficient that the land was used “predominantly” by such inhabitants.

The amendment of section 22

26.

Soon after the decision in the Sunningwell case, the question of town and village greens was raised in Parliament. This was in the debates of the bill which became the Countryside and Rights of Way Act 2000. No one voiced any concern about the construction which the House in its judicial capacity had given to the 1965 Act. On the contrary, the only question raised in debate was whether the locality rule did not make it too difficult to register new village greens. In your Lordships’ House, Baroness Miller of Chilthorne Domer described the need for the users to be predominantly from the local community, defined by reference to a recognised ecclesiastical parish or local government area, as a “loophole” in the 1965 Act which “allows greens to be destroyed” (Hansard (HL Debates) 16 October 2000, col 865). The Government was sympathetic and introduced a suitable amendment which was adopted at the report stage (Hansard 9HL Debates) 16 November 2000, col 513). This became section 98 of the 2000 Act, which amended section 22 by substituting a new third limb of the definition (class c):

“(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 period has yet been prescribed under paragraph (b).

27.

“Any neighbourhood within a locality” is obviously drafted with a deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries. I should say at this point that I cannot agree with Sullivan J in R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] JPL 975 that the neighbourhood must be wholly within a single locality. That would introduce the kind of technicality which the amendment was clearly intended to abolish. The fact that the word “locality” when it first appears in subsection (1A) must mean a single locality is no reason why the context of “neighbourhood within a locality” should not lead to the conclusion that it means “within a locality or localities”.

Mr. George rightly submitted that these observations of Lord Hoffmann were obiter, the “locality” point now raised in this appeal was not in issue in Oxfordshire, and the House of Lords did not have the advantage of any argument on the point. However, as would be expected Lord Hoffmann’s dicta were carefully considered. In his review of the earlier cases Lord Hoffmann had noted in paragraph 11 that:

“The strictest application of the locality rule was in Edwards v Jenkins [1896] 1 Ch 308, in which Kekewich J held that the inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land in Beddington. One parish, one custom. In New Windsor Corpn v Mellor [1975] Ch 380, 387 Lord Denning MR thought that Kekewich J had gone too far. “So long as the locality is certain, that is enough.” But there is no doubt that the locality rule was the pinch-point through which many claims to customary rights of recreation failed to pass.”

In Leeds Group plc v Leeds City Council [2011] Ch 363 this Court had to consider the meaning of the term “any neighbourhood” in the second limb of class c in section 22(1A) of the 1965 Act (as amended). While the meaning of “any locality” in the first limb of class c was not the issue before the Court, it was necessary for the Court to form a view as to what was meant by the term “any locality”, in the first limb in order to be able to reach a conclusion as to what was meant by “any neighbourhood” in the second limb.

The Court was divided as to the meaning of “any neighbourhood”. Arden LJ and I concluded that “any neighbourhood” could include more than one neighbourhood. Tomlinson LJ disagreed and concluded that “any neighbourhood” meant a single neighbourhood. What is significant for present purposes is that, rightly or wrongly, we reached our different conclusions as to the meaning of “any neighbourhood” from a common starting point: that Lord Hoffmann’s observations in Oxfordshire as to the meaning of the term “any locality” in limb (i) (see paragraph 23 above) were correct: see paragraphs 21 and 26 of my judgment, paragraphs 53-55 and 58 of the judgment of Arden LJ, and paragraphs 39 and 45 of the judgment of Tomlinson LJ.

If Mr. George’s submissions were correct, and the words “any locality” (whether in class c as enacted, or in limb (i) of the amended class c mean any sufficiently identifiable area or areas, Parliament would have legislated in vain when introducing the second limb of class c: “locality” and “neighbourhood” would be synonymous. In Oxfordshire, Lord Hoffmann clearly considered that the new “neighbourhood” limb had materially relaxed the previous restrictions relating to “locality”, and Parliament subsequently retained the distinction between locality and neighbourhood when enacting section 15 of the Commons Act 2006, which will in due course replace the 1965 Act. Even if it was open to us to do so, I do not think that it would be appropriate for this Court now to conclude that both Parliament and the House of Lords have hitherto proceeded upon a false premise as to the meaning of locality in section 22(1).

I therefore conclude that Vos J’s decision that Clayton Fields ought not to have been added to the register upon the basis of user by the inhabitants of the two areas known as Edgerton and Birkby was correct.

Was there a plausible alternative locality? I would respectfully disagree with the judge’s view that the Edgerton Conservation Area could be regarded as a locality for the purpose of section 22(1) of the 1965 Act. It is true that its boundaries are legally significant, but they are legally significant for a particular statutory purpose, and those boundaries would have been defined by reference to its characteristics as an area “of special architectural or historic interest, the character or appearance of which it is desirable to preserve or enhance” (see section 69(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990) – rather than by reference to any community of interest on the part of its inhabitants.

In any event, the Conservation Area was not in existence for the full 20 year period relied upon by CFAG. On the evidence before the Committee less than half of those persons making declarations were resident within the Conservation Area (paragraph 64 judgment), while the evidence before Vos J confirmed CFAG’s claim that the users came from both Edgerton, part of which was within the Conservation Area, and Birkby, which was outside the Conservation Area, in roughly equal measure: see paragraph 65(ii) of the judgment.

Both of the parishes are localities for the purpose of section 22(1), but as the judge said in paragraph 106(iii) of the judgment: “Clayton Fields lies between two parishes, and the residents are evenly split.” On the evidence before the Committee 36 out of the 68 persons making declarations resided in Holy Trinity Parish (which includes most of Edgerton), and 27 in St John Parish (which included most of Birkby): see paragraph 64(iii) of the judgment. On 25^th November 1986 St. John Parish ceased to exist, and North Huddersfield Parish was created. At the hearing before Vos J further sworn declarations concerning the usage of Clayton Fields were produced. These showed that 55 out of the 114 persons who had made declarations resided in Holy Trinity Parish, 33 in St John Parish and 35 in North Huddersfield Parish: see paragraph 65(iii) of the judgment.

On the evidence before him, Vos J’s conclusion in paragraph 106(iii) of his judgment that “it would not have been possible for the Defendants to have passed the predominance test in respect of any one parish” was plainly correct. Mr. George submitted that the earlier cases did not establish the existence of a “predominance” test, and that all that had to be demonstrated in order to establish a village green by custom was user by a significant number of the inhabitants of a locality. The difficulty with this submission is that if there was no requirement that the land in question was used “predominantly” by the inhabitants of a defined locality (see per Lord Hoffmann in Oxfordshire, cited at paragraph 23 above), and user by a “significant” number of the inhabitants of a locality had sufficed under section 22(1) as enacted, the users could have come from more than one locality, provided only that they constituted a “significant” number of the inhabitants of the localities in question. Parliament responded to the perceived problems of “the locality rule” by introducing the concepts of “a significant number of the inhabitants” and “neighbourhood within a locality” in the 2000 Act. This submission is, in reality, another attempt to persuade us that Parliament and the House of Lords have proceeded upon a false premise.

Having concluded that registration was not justified in 1997 and there was no alternative basis upon which registration could have been supported, Vos J said that this was “a very strong but not conclusive, factor in favour of the justice of rectification.” Mr. George’s challenge to the manner in which Vos J carried out the balancing exercise boiled down, in effect, to a submission that although the judge said that the delay in bringing the section 14 application by Haigh and Paddico was a “significant factor against rectification”, he erred in principle in not according sufficient weight to the delay factor.

Mr George submitted that the delay in making the application in January 2010, nearly 13 years after registration in April 1997, had been extreme, and Haigh and Paddico had “blown hot and cold” by allowing the claim for rectification to lapse upon the stay of the 1997 application, and by then reviving the claim in the 2010 application. Mr. George accepted that he could not mount an abuse of process challenge, although he did submit that the delay was so extreme as to verge upon an abuse of process. He also submitted that when considering whether not rectifying the register would cause injustice to the landowner the change of ownership in 2005 was relevant: Paddico had purchased Clayton Fields with knowledge of the registration, and had taken a commercial risk that rectification might not be ordered.

Mr. Laurence submitted that there was no error of principle in the weight given by the judge to the delay factor. There is no time limit for making applications under section 14 of the 1965 Act, and the Court should not impose some arbitrary time limit. Delay does not, of itself, amount to a “trump card” in the absence of any resulting prejudice, and the judge was entitled to conclude on the evidence before him (we refused an application by the Appellant to produce further evidence) that “little other prejudice” had been demonstrated by CFAG. Mr. Laurence submitted that the evidence before the judge was the other way: the land was allocated for housing in the statutory Development Plan and it was in the public interest that it should be developed for that purpose.

We were referred to a number of authorities in which the Courts have had to consider whether delay should be a bar to relief. Those cases in which the delay resulted in specific prejudice, such as The King v Stafford Justices [1940] 2 KB 33, where houses had been built across the site of a footpath which had not been properly diverted, are of no assistance in the context of the present case, where apart from the delay itself, there is “little other prejudice.” Other decisions, such as Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738 and R v Newbury District Council and Newbury and District Agricultural Society exp Chieveley Parish Council (“Chieveley”) [1999] PLCR 51, are of some, but limited, assistance because they were taken in a different statutory context, that of judicial review, in which section 31(6) of the Senior Courts Act 1981 gives the Court power to refuse to grant relief if it considers that undue delay would be prejudicial to good administration. In a very different context, one of the grounds on which Aldous J refused an application to amend three patents was a delay of eight years – there was a public interest in ensuring that patents were amended promptly: Smith Kline & French Laboratories Limited v Evans Medical Limited [1989] 1 F.S.R. 561.

Although the statutory context is different, there is an analogy with the planning register which was considered in Chieveley. The register maintained by the Council under the 1965 Act is a public document, “open to inspection by the public at all reasonable times” (section 3(2)), and the entry on the register is conclusive evidence of the matters registered as at the date of registration (section 10). In these circumstances, if it is contended that a register has been amended under section 13 in error, there is a strong public interest in that issue being resolved at the earliest opportunity. While Parliament did not prescribe a time limit for making applications under section 14, it must have envisaged that persons adversely affected by an erroneous amendment of the register would take reasonably prompt action to secure rectification, and would not sleep on their rights. All other things being equal, the longer the delay in seeking rectification the less likely it is that it will be just to order rectification.

On the facts of the present case, all other things were equal. Putting the issue of delay to one side, there was no other factor which pointed either in favour of, or against, rectification, apart from the fact that the register had been amended in error, which did not of itself mean that rectification would be just. CFAG had produced little evidence of prejudice, but equally the landowner, Paddico, could not realistically contend that it would suffer any injustice if rectification was refused. It had purchased the land with knowledge of the entry on the register, and had, quite properly, taken a calculated commercial risk on its chances of securing rectification.

While it must be desirable, in principle, that errors in a public register should be rectified, the delay of over 12 years in seeking rectification of the register in this case was, by the standards of any reasonable legal process, so excessive as to make it not just to rectify the register.

I would allow the appeal.

I entirely agree with the judgment of Sullivan LJ on the locality issue and have nothing to add on that point. But I take a different view on the issue of justice.

The delay in this case between the s.13 registration and the issue of the new s.14 claim in January 2010 was almost 13 years. It includes a period of four years between Paddico’s registration as freehold owner of the land and its unsuccessful application to lift the stay imposed on the original s.14 claim. Vos J described the delay as a significant factor against rectification but not one which was conclusive. I agree with that analysis.

I have already set out in my judgment in Betterment Properties (Weymouth) Limited v Taylor what I consider are likely to be the relevant factors in most cases and what should be the court’s approach to the question of delay. Mr George’s basic submission in this case was that Vos J gave insufficient weight to the delay as a factor in the balancing exercise. In my view, he did not. Although one can criticise Paddico and the previous owners for their indecision about whether to proceed with the s.14 application, Mr George does not (and cannot) submit that it amounts to an abuse of process. It is therefore necessary to identify some significant or material prejudice attributable to the delay which makes it just to refuse to restore to Paddico its full legal rights as the owner of this land. Mr George was unable to identify any such prejudice and, in my view, everything points the other way.

The first and perhaps most powerful factor in Paddico’s favour is that the land should never have been registered as a town or village green as a result of the s.13 application. Although this turns on the issue of locality, that does not detract from the fact that the registration was unlawful. I can see no injustice in the Appellant being deprived of rights to which he was never entitled.

There is no other demonstrable prejudice relied upon but, insofar as matters of public interest are concerned, it is relevant to take into account that the land has been allocated for housing in successive local plans and that those planning policies have been frustrated by the s.13 registration. There is therefore a public dimension to this which militates strongly in favour of ordering rectification of the register.

Sullivan LJ in paragraph 38 of his judgment says that any lack of prejudice on CFAG’s side was matched by Paddico not suffering any injustice if rectification is refused. With respect, I disagree. As explained in my judgment in Betterment, a person who buys the land at a discounted price because of the s.13 registration is nonetheless deprived of his proper legal rights so long as the registration remains intact. The purchase price is not an answer to this. Moreover, even if the position of the present owner as a successor in title cancels out the lack of prejudice on CFAG’s side, it cannot nullify the effect of the finding that the registration should never have been made which, as mentioned earlier, is a strong factor in itself in favour of rectification. Nor does it meet the other policy considerations I have referred to.

I would therefore dismiss this appeal.

One of the more surprising additions to the legal landscape in recent years has been the modern village green. It is hard to think of a concept more redolent of the traditions of Old England than the village green as generally understood. The Commons Registration Act 1965, on its face, was about recording established commons and greens, not about creating new rights or legal entities. The preceding Jennings report similarly had been concerned with the need to record what existed. There is nothing in the report to suggest a need to develop new recreational areas, outside the now well established statutory provisions for public open spaces and the like (see my discussion of the background in Oxfordshire CC v Oxford City Council [2006] Ch 43).

However, from 1990 it became apparent that the category c of the definition enabled the argument to be put forward that twenty years of user since the coming into effect of the Act in 1970 could establish a village green. The first cases came before the Courts in early 1995; in R v Suffolk CC ex p Steed and Ministry of Defence v Wilts CC [[1995] 4 All ER 931) no one took the point that the Act was directed only to the past and not to the future. However, the early decisions of the Court severely limited the potential impact of this new development by requiring it to be shown that the use was “as of right”, in the sense of the assertion of a right on behalf of the members of a particular village or locality to use the land for recreation.

That limitation was removed by the House of Lords in Sunningwell. The legislature endorsed that approach, implicitly in 2000, and unequivocally in 2006. However, this creates problems for legal interpretation. Normally one is seeking to ascertain the intention of Parliament at the time of the passing of the relevant legislation. In this case there is no reason to think that in 1965 Parliament had any intention in respect of future modern greens. If anything is relevant it is the intention or understanding of Parliament when it confirmed the new status in 2000.

This is of particular relevance to the term “locality” which has been the subject of argument in this case. In the 1965 Act definition, the role of the word is not difficult to understand. As Mr George fairly points out, it may have a different effect in each part of the definition. Recreational allotments (category a) might be allocated by statute to a “neighbourhood” which might or might not be an administrative area. Customary greens might be attached to a varying range of places. According to Halsbury’s Laws 4^th Ed Vol 12(1) “Custom and Usage” (edited by Professor Baker):

“A custom must be certain in respect of the locality where it is alleged to exist… This area must be defined by reference to the limits of some legally recognised administrative division, as for instance a county, a hundred, a forest, a region of marshland, a city, a town or borough, a parish, a township within a parish, a villa, a hamlet, a liberty, a barony, an honour, or a manor.” (para 616: the footnotes give appropriate references)

It is understandable that a general word like “locality” was used to encompass those different descriptions. Further the purpose of the link to a locality was clear. A custom is a “local law”, for which it is necessary to identify the locality in which it applies. The term did not need further definition, because precision would be provided by the legal source relevant to the particular piece of land. Furthermore, it was unnecessary to define the rights which were attached to it since again they would be expected to be defined by the historic use.

The issue of definition, however, becomes much more problematic when one is talking about a modern green. There is no historic source or use to define the relevant area, or the uses attached to it. Nor is there anything in the statute to indicate the legislative purpose for requiring a link to a locality. If the intention was simply to give legal status to de facto public use of open spaces, it is not obvious why it mattered whether the use could be linked to inhabitants of a particular place. Had Parliament been intending to create a new form of open space depending on a relationship with a locality, one might have expected it to define with some precision what it meant by “locality”, what the relationship was to be with the use, and what rights would in due course attach to that locality.

On the view taken in the earlier cases from 1995, the link was provided by the need for an assertion of a right by reference to a particular locality. Once that concept had gone as a result of Sunningwell, there was nothing left to explain the link, or to identify the resulting rights. (see my judgment in Oxfordshire, above, at para 79). Category c village greens had become “free-standing… to be interpreted in a modern context, unhampered by the technicalities of customary law applicable to class b” (ibid para 60, 64). Nor was this deficiency made good by the 2000 amendment. “Locality” has given way to the apparently more flexible concept of “neighbourhood within a locality”. But what is still missing is any legislative indication of the purpose of the link, or of the rights so created.

In this case we are concerned with the law as it was before the 2000 amendment. Mr George is technically correct to say that there is no binding authority on the central issue raised by his appeal. However, as Sullivan LJ has explained, there is clear guidance from the House of Lords in Oxfordshire, adopted by the majority of this court in Leeds. That is also consistent with Parliament’s understanding of the law, on the basis of which the 2000 amendments were made.

In this Court, Mr George and Mr Petchey have urged us to go behind those statements, on the basis that they were made on a misconception as to what was the old law before the 1965 Act. Even if they are right on the latter point, this assumes that the old law is to be used to determine the scope of the provision for modern greens. That is itself a doubtful assumption for the reasons I have given. In any event what is needed more than anything else in this area of the law is a degree of certainty and stability. Where the highest courts have adopted a particular definition and Parliament has legislated on that basis, then I think this Court would be quite wrong to turn back.

The same thinking feeds into the discussion of the next issue, that of possible alternatives, as part of the consideration of the justice of granting a remedy. It was common ground that it was appropriate for the judge, particularly dealing with two litigants in person, to consider whether there was some other basis on which the registration could realistically have been upheld. However, this should not have been seen as an invitation for a free-for-all of localities. Once it is accepted that there can only be one relevant “locality”, the case is undermined, rather than strengthened, by advancing a wide range of competing localities, as the Appellant sought to do in this case, even including the whole of the Metropolitan Borough of Kirklees.

Accepting as one must (under the pre-2000 Act) that the use has to be linked to a single locality, there must be some realistic basis for distinguishing between one competing place and another. It is here that the logic of the “predominance test” has a part to play. If one can point to a credible administrative locality (credible, in the sense that it is one from which people might be expected to come to enjoy the particular land), and one can show that the predominant use comes from that locality, then that is at least a plausible basis for selecting that for the purpose of registration.

Mr. George referred us to some of the old cases to suggest that there was no such “predominance” test as a matter of law. That to my mind is not a useful exercise. It would have depended on the circumstances. Where one had several centuries of user by people asserting a right as members of a particular community, it might not matter whether in practice other people had used it from time to time, perhaps even sometimes a majority of other people. On the other hand where such historic use was not established, and the more recent use turned out to be indiscriminate use by people from a wide community, one can understand the conclusion that there was not enough to show a connection with a particular locality.

None of that is relevant to the position after 1965 where the only link is through the actual use. It is true that in Sunningwell the question of predominance only came in as a comment on the particular evidence in that case, but by the Oxfordshire case it has hardened into something which appears to be expressed as a rule. The logic of that is that without some such rule the matter is wholly at large. However, once the law is changed, as it now has been, and it is accepted that there can be a number of qualifying “neighbourhoods”, then it ceases to matter which is predominant, and one can understand why “significant” use from any of them is thought sufficient.

I accept that this leaves wholly unanswered the question of what rights are attached to areas described in such general terms. However, that is not an issue which we need to consider. A single defined locality defined by reference to an administrative area can provide at least some of the certainty which was a feature of the pre-1965 law, and it can therefore be as a desirable feature of the post 1965 law prior to the 2000 amendment.

On that basis the judge’s decision that there was no specific alternative is difficult to fault. The most plausible suggestion was the Holy Trinity Parish, which was at least an identifiable community with a credible relationship with the green. However, this did not satisfy the predominance test, at least on the most recent evidence before the judge. The alternative suggestion of the Conservation Area seems wholly implausible, since it is not a description of a community, and in any event it was not in being for the whole of the relevant period. I accept that, where one has a historic district to which rights have long become attached, it may not matter if subsequently the boundaries are affected by local government reorganisation, so long as it remains an identifiable community. However where the relevant locality does not come into existence in any legal form until after the beginning of the relevant twenty year period, it seems to me impossible to show the necessary link.

The possible alternatives may have some relevance to the question of justice. As Mr George pointed out there was no requirement at the time of these applications to specify a particular locality. It can be assumed that what was intended was a relatively non-technical approach, and that provided a plausible case was put forward, then there would be room to modify the basis of the claim in the light of legal advice. Here the reason for the choice of the two named locations was explained as a common-sense approach by someone who was not aware of the technicalities of the law. The evidence relating to the predominance of use was understandably directed to the claim as it was at that time.

Accepting that it is open to a land owner to apply to the court for rectification on the basis there was an error of approach, and assuming that as part of that process the court may wish to consider what alternatives there are by way of locality, it is important that it should be done at a time when memories are fresh as to the actual use during the relevant qualifying period. The court will want to know, not just what the legally defensible alternative is, but also what evidence there is as to the balance of use of that area during the relevant period.

In this case the evidence at the time seems to have been that the predominant use was from people within the Parish. By the time of the hearing before the judge some twelve years later, for whatever reasons, the position had changed. We simply do not know what might have been the position if an application had been made promptly, and the claimants with legal advice had sought relevant evidence as to the balance of use as recalled at that time.

On the other main aspect of the justice issue, I agree generally with the reasoning and conclusions of Sullivan LJ. The judge was clearly sympathetic to the position of the claimants, and hampered by the fact that they did not have legal representation, although I have no doubt that Mr Laurence sought to provide such assistance as he could consistently with his duty to his own clients.

I accept that, as the judge held, following Morgan J in Betterment and Harman J fifteen years earlier in Ministry of Defence v Wiltshire CC, that the owner’s rights are an important consideration. This is reinforced by human rights considerations. As I understand Lord Hoffmann’s reference to the European Convention in Oxfordshire (para 59), he accepted that article 1 of the 1^st Protocol was engaged, by “control”, if not by “deprivation”, but he held that the control was justified by the public interest considerations underlying the 1965 Act. The administrative process of amendment of the register does not meet the requirements for independent determination under article 6. The rectification procedure fills the gap. I agree that for that reason a precise analogy with judicial review time-limits is not appropriate.

However, article 6 does not require the right to be kept open indefinitely. I agree with Sullivan LJ that the public nature of the register requires the balance to include considerations of public administration, similar to those considered in the Newbury case. Although that is provided for expressly in the judicial review legislation, I see no reason why the concept of “justice” under the 1965 Act should not be wide enough to include similar considerations. Justice in this context need not turn on proof of individual prejudice, but is wide enough to cover general prejudice to the public (including planning authorities) who are entitled to rely on the register to order their affairs, public and private. This understandably was not an aspect considered by the judge, but in my view it should have been. It is probably not appropriate for the court to lay down a specific time-limit, where Parliament has declined to do so. But for my part, I would be regarding a delay beyond the normal limitation period of six years as requiring very clear justification. On the facts of this case, I agree with Sullivan LJ that on any view the delay was too long.

In conclusion, I agree with Sullivan LJ that the appeal should be dismissed on ground 1 (Locality) but allowed on ground 2 (Justice).