Betterment Properties (Weymouth) Ltd v Dorset County Council

The application now before me is for the determination of two preliminary issues of law. The issues are as to the construction of provisions of the Commons Registration Act 1965 (“the 1965 Act”) and of the Countryside and Rights of Way Act 2000 (“the 2000 Act”). These issues arise in the context of the claim in this action by Betterment Properties (Weymouth) Limited (“the Claimant”) against Dorset County Council (“the Defendant”) as registration authority for the purposes of the 1965 Act for an order under section 14 of the 1965 Act for the rectification of the Register of Town and Village Greens by removing therefrom an area in the region of 46.2 acres of undeveloped land at Markham and Little Francis, Wyke Regis, Weymouth Dorset (“the Land”) owned by the Claimant. It is appropriate on this application to determine the preliminary issues to refer in this judgment only to the few agreed facts relevant to their determination.

The Land belonged until 2004 to members of the Curtis family. I shall refer to them as “the Curtis Family”. On either the 17^th March 1997 or the 30^th September 1997 (it matters not which of the two dates) Mrs J Horne on behalf of “The Society for the Preservation of Markham and Little Francis” duly applied to the Defendant to register the Land as a town or village green. The application (“the 1997 Application”) was made under section 13 of the 1965 Act which provides as follows:

“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 ….”

Two observations should be made in respect of this section. The first is that the word “becomes” in section 13(b) means “becomes on registration”: see Oxfordshire County Council v. Oxford City Council [2006] 2 AC 674 (“Oxford”). The second is that the required regulations were made in the form of the Commons Registration (New Land) Regulations 1969 which (amongst other things) prescribed the form of the application for registration.

The definition of “town and village green” contained in the 1965 Act (“the Unamended Definition”) was amended by the provisions of section 98 of the 2000 Act which substituted a new definition (“the Amended Definition”). The 2000 Act became law on the 30^th November 2000. Section 103 of the 2000 Act enacted that the provisions of section 98 should come into force on the 30^th January 2001.

There were a number of objectors to the 1997 Application which included the Curtis Family. The Defendant for the purpose of determining the 1997 Application formed a panel (“the Panel”) to hold a non-statutory inquiry. The Panel sat on the 7^th, 8^th and 11^th December 2000 during which period it heard oral evidence and submissions. The objectors were legally represented and the Panel was legally advised throughout. The hearing proceeded on the basis that the Amended Definition was applicable.

The Panel reached the unanimous decision (“the Decision”) that (applying the Amended Definition) the 1997 Application should be accepted. Their detailed reasons were set out in a 16 page letter from the Defendant to the parties. Accordingly the registration was then made pursuant to section 13 of the 1965 Act.

On the 29^th August 2001 Mr B.G. Curtis sought permission to bring judicial review proceedings challenging the Decision. The Defendant opposed the application on the ground that any challenge to the registration should have been brought by way of a Part 8 claim form in the Chancery Division seeking relief under section 14(b) of the 1965 Act (“Section 14”). On the 16^th October 2001 Stanley Burnton J refused permission. He held:

“The substance of the application is a disagreement with the weight attributed by the panel to the evidence before it and the findings of fact made by the Defendant’s panel. That does not justify judicial review. There was no relevant error of law: the claimant accepts that the panel correctly set out the requirements of user as of right…. The applicability of section 14 of the Commons Registration is arguable.”

Mr Curtis renewed his application for permission and this was listed for hearing on the 3^rd December 2001. Mr Curtis however discontinued and by letter dated the 28^th November 2001 reserved the right to bring proceedings by way of Part 8 claim form claiming relief under Section 14.

During 2004 the Claimant, a property developer, acquired the Land from the Curtis Family and on the 18^th December 2005 commenced these proceedings. On the 18^th July 2006 Master Teverson made an order for the trial of the two preliminary issues.

Both the Claimant and the Defendant are and have at all times been most anxious that all and any interested parties should be encouraged (if they so wished) to participate in these proceedings, but so far to no effect. The rectification of the register sought and the subsequent development of the Land would or could seriously effect those who acquired the right to enjoy the Land for recreational purposes by reason of its registration as a town green in 2001. Mrs J Horne for personal reasons is unable to participate in the proceedings and the society which she represented has dissolved. In the circumstances at the suggestion of the parties I have directed that an advertisement be placed in a local newspaper informing readers of the proceedings and of the application and inviting them to make any representations to me in writing or orally in relation to the two preliminary issues without any risk of incurring any liability for costs, and I have stated that I will postpone giving judgment for 4 weeks to provide an opportunity for such representations to be made.

A considerable number of persons (including Mrs Horne) have responded by letter and by petitions to the invitation. The thrust of their representations has been directed to the extent and character of the past user of the Land and the unfairness of the challenge to the decision to register after the lapse of time since registration. They do not address the two legal issues which I am concerned with at this stage of the proceedings. The representations will be relevant and require detailed examination at a later stage of these proceedings when and if it is necessary to examine the extent and character of past user and the question whether it would be just to rectify the register, but cannot assist on the trial of the preliminary issues of law.

The first preliminary issue is as follows:

“Whether the jurisdiction conferred by section 14(b) of the Commons Registration Act 1965 is by way of rehearing or appellate or on some other basis?”

Section 14(b) of the 1965 Act reads 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.”

It is common ground that any error established cannot be corrected in pursuance of regulations made under the 1965 Act, for no such regulations have been made.

The rival contentions of the parties as to the true construction of Section 14 focus on the evidential basis on which the court can decide that no amendment or a different amendment to the register ought to have been made. The Defendant contends that the court is required to decide this question in the same way as it would be required to decide an appeal by way of rehearing from the decision of the registration authority, that is to say on the evidence before the Panel but subject to the qualification that further evidence may be admitted if the “Ladd v. Marshall test” is satisfied and in particular if the evidence in question could not reasonably have been adduced before the Panel. The Claimant contends that the hearing before the court is not an appeal and that the procedure to be adopted on appeals is accordingly inapplicable, and that the parties are subject to no constraint as to the issues of law and fact which they raise subject only to the exercise by the court as master of its own procedure of its case management powers and in particular its powers regarding the admission of evidence.

The issue raised is a matter of practical as well as legal importance. Section 14 will in due course be replaced by section 19 of the Commons Act 2006 (“the 2006 Act”). It may well be that a like issue will arise under the replacement section, although in that case the decision whether to rectify will have to be made by the registration authority itself rather than the court. In the circumstances I shall first consider the issue as a matter of principle and then see what guidance is afforded by the authorities. The issue is one of the construction of Section 14. The language of the section affords no basis for any suggestion that the role of the court is the exercise of an appellate or supervisory jurisdiction or that the jurisdiction should only be exercisable if the registration authority in directing registration made an error on the evidence adduced before it or an error of law: compare the position in respect of decisions of Commons Commissioners under sections 6 and 16 of the 1965 Act. The section requires only that it should appear to the court on the evidence before it that for any reason (factual or legal) no amendment or a different amendment should have been made and that it is just to rectify the error on the register.

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.

This approach accords with what Parliament must have had in mind in conferring the jurisdiction to rectify. First it is no trivial matter for a public or private landowner to have land registered as a town or village green. If the entry in the register cannot be corrected under section 14, registration can effect (potentially catastrophic) blight on user and development. Section 16 of the 2006 Act when it comes into force will authorise the Secretary of State in the circumstances and on the conditions there set out to direct deregistration and accordingly where the provisions of that section can be invoked the blight may no longer be permanent, but the consequences of registration remain serious. Second the procedure on the application for registration is intended to be relatively simple and informal. There is no provision for the service of subpoenas or for orders for disclosure. Relevant evidence may only emerge later. It may be difficult (if not impossible) at a later date to identify the exact nature and limits (let alone the credibility) of the evidence adduced in support of (or against) the application or of the registration authority’s conclusions as to the credibility or relevance of any particular evidence. Because of the absence (for any of a number of reasons) of objection to the application, it may have been appropriate for the applicant for registration to limit the evidence he adduced or the relevant evidence may have been unavailable. The problem is complicated when (as in this case) there is a change in ownership of the servient land. The new owner is likely to be at a disadvantage knowing the earlier course of events. To limit the evidence available in the High Court to the evidence adduced before the registration authority is calculated to raise serious practical problems, give rise to unfairness and to emasculate the jurisdiction. Parliament must surely have preferred to vest in the court the power to decide whether the admission of any particular evidence was calculated to promote the achievement of justice.

I was referred to the decisions of the Court of Appeal in Jones v. Attorney General [1974] 1 Ch 148 (and in particular at p.161) and of the House of Lords in Lloyd v. McMahon [1987] 1 AC 62 (and in particular at p.715-6). Those decisions were concerned with the procedure to be adopted on the statutory appeals in question, in the one case from decisions of the Charity Commissioners and the other from decisions of the District Auditor. As I have said, this is not an appeal, but the thrust of the decisions in those cases, which turned on the particular statutory language and context, supports the approach which I favour.

This approach also accords with the reported authorities on rectification of the register. It is unnecessary to examine how far the observations of the judges to which I refer reflect the basis of their decisions or are obiter dicta. In R v. Suffolk County Council ex p Steed [1993] 70 P&CR 487 at 471, Carnwath J stated that the court in exercise of its jurisdiction under Section 14 is not confined to remedying errors of law, but may consider the overall merits of the amendment. In Secretary of State for Health v. Birmingham City Council (unreported 20 July 1995) Vinelott J held that section 14 of the 1965 Act conferred on the court a wide discretion to rectify the register in the light of the circumstances when the application was made. In R (on the application of Cheltenham Builders Ltd) v. South Gloucestershire District Council [2003] EWHC 2803 Sullivan J stated that the court may under Section 14 order the register to be amended if for any reason, factual or legal, it considers that no amendment or a different amendment ought to have been made. In Humphreys v. Rochdale Metropolitan Council unreported 18 June 2004 HHJ Howarth, sitting as a High Court Judge, held that for the purposes of the exercise of the jurisdiction under Section 14 he was entitled to hear, and did hear, evidence from both sides. In R (on the application of Whitmey) v Commons Commissioners [2005] QB 282 (“Whitmey”) Arden LJ stated that the wide terms of section 14 of the 1965 Act permitted a full review of the facts; and Waller LJ held that the section permitted a review wider than that available on a judicial review: he did not however need to say how much wider: see paragraph 65.

Only one authority has been cited as suggesting a contrary view. That was a passage in the judgment of Harman J in Ministry of Defence v. Wiltshire CC [1995] 4 All ER 931 at 934 where he described the issue before him on an application under Section 14 as a question of law. But the issue in that case was indeed a question of law because, as he states elsewhere in his judgment, there was in that case no issue of fact between the parties.

I accordingly hold in answer to the first question that Section 14 imposes no fetter on the evidence or arguments which may be relied on to establish that no amendment or a different amendment should have been made, even as it imposes no fetter on the evidence or argument which may be relied on to establish that it is or is not just to rectify the register; and that it is a matter for the judge hearing the application under Section 14 in the exercise of his case management powers to decide the procedure to be adopted and what should stand as evidence and what should be admitted as evidence at the trial.

The second preliminary issue is as follows:

“Whether an application to register land as a Town or Village Green (made before 30 January 2001 but not determined before that date) should be determined (1) by reference to the definition of Town or Village Green as it existed before the amendment effected by section 98 and section 103 of the Countryside and Rights of Way Act 2000, or (2) by reference to the amended definition which came into force on that date.”

The Unamended Definition reads as follows (see section 22):

“(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.”

The Amended Definition reads 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.”

There have been as yet no prescribed provisions for the purposes of section 98(1A)(b).

The two critical differences in the definitions are:

The House of Lords in Oxford held that the Amended Definition applies in the case of all applications for registration made after section 98 of the 2000 Act came into effect into effect i.e. the 30^th January 2001. It specifically left open the question raised by the second issue before me, namely whether it also applies to applications made before that date.

In the case of applications for registration made before the 30^th January 2001 the Unamended Definition must on any basis have been applicable to their determination until that date and any such applications determined by reference to the Unamended Definition prior to that date cannot be challenged or in any way questioned by reason of the subsequent change of law. The issue is whether the Unamended Definition continued to be applicable to the determination of those applications if still awaiting determination after that date (as contended for by the Claimant) or whether its application was displaced by section 98 and 103 of the 2000 Act (as was common ground before and held by the Panel and contended for in these proceedings by the Defendant). The issue turns on whether the provisions of the 2000 Act should be given retrospective effect so as to apply to applications predating the legislation.

In resolving this issue Mr Hobson and Mr Coppel for the Defendant submit that I should have in mind the following matters:

“(1)

that the rights encapsulated in a town or village green only arise upon a parcel of land being registered as a town or village green;

(2)

that the making of an application for registration as a town or village green is a simple matter of filling in a short prescribed form;

(3)

that a person can make repeated applications for registration;

(4)

that different people can make application for registration of the same parcel of land;

(5)

that the decision to register is not a bilateral process between an applicant and a registration authority: rather, the registration authority must invite the views of the landowner and adjudicate on the competing evidence that they adduce;

(6)

that a successful applicant does not secure a personal, proprietary benefit for himself;

(7)

that the determination of an application is an administrative procedure carried out by the registration authority.”

I accept the first five of these matters. As regards the sixth, the successful applicant establishes a right as a local inhabitant together with the other local inhabitants (or, as the case may be, as an inhabitant of a neighbourhood together with the other inhabitants of the neighbourhood) to use and enjoy the land registered as a town or village green. I am not sure what counsel intended to convey by the term “a personal proprietary benefit for himself”, but I would incline to think that (so far as relevant) that the applicant’s right answered this description albeit his right was a right shared with others. The seventh affords the basis for the thrust of the Defendant’s case, namely that the determination of the application by the registration authority is an administrative procedure and not a judicial procedure and that, whilst the presumption against retrospectivity applies where the ongoing proceedings are judicial, they do not apply where they are administrative.

Mr Hobson and Mr Coppel helpfully cited a passage in the judgment of Brennan J in Esber v. The Commonwealth of Australia (1992) 174 CLR 430. In that case Brennan J was in the minority dissenting from the decision of the majority on the construction of the legislation in question, but there was no disagreement with his approach to construction which was approved by Kirby J in Attorney General (Queensland) v. Australian Industrial Relations Commission (2002) 192 ALR 129 at paragraphs 110 and 128. Brennan J in the context of statutory retrospectivity drew the distinction between an administrative decision and a judicial decision:

“Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time. By contrast, in a judicial proceeding brought to enforce an alleged right accrued at the time when the proceedings were instituted, the question for decision is determined according to the law existing when the proceedings were instituted unless statute otherwise provides.

Brennan J expressed this distinction as being between:

‘a judicial proceeding to enforce an accrued right and an administrative proceeding to determine whether a right should be granted.’”

This distinction had been laid down by the Privy Council in Director of Public Works v. Ho Po Sang [1961] AC 901 and its decision was followed in a series of other cases.

The critical issue accordingly, as it seems me, is whether the 1997 Application gave rise to administrative or judicial proceedings and in particular whether the process before the Defendant as registration authority and the Panel it appointed involved an administrative determination whether a right should be granted or a judicial determination to enforce an accrued right.

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. So far as he suggests the contrary I must disagree with the view expressed by Waller LJ in Whitmey at paragraph 59.

The registration authority is an administrative body, but that does not mean that its function in determining applications for registration is administrative. The performance by the registration authority of its judicial function may in the mind of the registration authority or the public give rise to legitimate concerns whether it is sufficiently independent and impartial. In those circumstances, the practice has become established of the registration authority appointing panels to discharge this function or of the authority appointing an independent non-statutory inspector to advise the authority, usually after a public inquiry, as to the discharge of the function. But the legal character of the function of determining the application (though the procedure may have differing degrees of formality) is the same whether discharged by the registration authority or a panel or indeed by the court if the court is asked and agrees to resolve the issue: see e.g. Arden LJ in Whitmey at paragraphs 26-28 and Waller LJ at paragraph 63.

I accordingly take the view that the process before the registration authority and any panel appointed is a judicial process and (in the absence of any contrary indication) the presumption is that the outcome of the process is to be determined by reference to the definition in force when the application was made. This conclusion is reinforced (if reinforcement were necessary) by two further considerations.

The first is that the legislature, far from affording any contrary indication and rebutting this presumption, goes some way to reinforcing it. Section 103 postpones for a two month period the date on which the Amended Definition is to come into force. The legislature must accordingly have intended that applications should continue to be made during this two month period and the only applications that could be made during the period would be applications made on the basis that the requirements of the Unamended Definition were satisfied and that those requirements would be the criterion for registration on any subsequent decision on those applications and (by necessary inference) any earlier applications.

The second is that to apply the Amended Definition retrospectively to applications made prior to the 30^th January 2001 would involve a retrospective disturbance of accrued rights and there is an established presumption against any legislative intention to effect such an interference, and in particular if such interference is capricious or unfair: see Wilson v. First County Trust [2004] 1 AC 816 (“Wilson”) at paragraphs 18 and 19 per Lord Nicholls. It would be capricious and unfair that, after “proceedings” have commenced, the outcome of the proceedings should be made dependent on the fortuitous circumstance whether a decision had been reached by the date on which later legislation was passed and brought into effect. Mrs Horne ran the risk that Parliament might intervene to change the law regarding applications to register until she availed herself of the right to apply, but once she applied she secured her right to a determination in accordance with the legal test then in force (i.e. the Unamended Definition): see Wilson at paragraphs 161 and 169 per Lord Rodger and Oxford paragraph 122 per Lord Rodger.

I accordingly hold that the answer to the second issue is that the 1997 Application should be determined by reference to the Unamended Definition.

For the avoidance of doubt I should make it clear that nothing in this judgment is intended to suggest that the 1997 Application in any way precluded further applications for registration before or after the 30^th January 2001. Any such application made after the 30^th January 2001 is of course to be determined by reference to the Amended Definition.