Registering town and village greens: the biggest cases of 2012

Village green iStock 000009004124XSmall 146x2192012 saw a significant throughput of litigation in relation to town and village greens. Paul Wilmshurst analyses the key rulings and looks ahead to the next 12 months.

In Paddico Ltd v Kirklees Metropolitan Council [2012] EWCA Civ 262 Lord Justice Carnwath (as he then was) said that “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.”

But as Parliament debates the Growth and Infrastructure Bill – legislation that may make it harder for applicants to secure the registration of land as a new town or village green – litigation in this area has continued with unmitigated frequency. This article takes a look at some of the most notable cases of 2012 and looks ahead to the cases that may be the most notable of 2013.

Taylor v Betterment Properties (Weymouth) Limited [2012] EWCA Civ 250 and Adamson v Paddico (267) Limited [2012] EWCA Civ 262

In March the conjoined appeals in Betterment and Paddico dealt with contentious user and the single locality rule respectively. It is unclear to the extent that a forthcoming appeal to the Supreme Court will address these distinct matters. However, definitely before the Supreme Court is the common issue of when it is “just” within the meaning of section 14 of the Commons Registration Act 1965 to de-register land as a green where there was some legal error made that led to its registration.

The Supreme Court is expected to focus on delay. In the Paddico case, despite the registration having been in error the register would not be rectified. Sullivan LJ concluded that “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.” However, the Court of Appeal arrived at the opposite judgement (and the land was de-registered) in Betterment where the landowner had commenced the section 14 proceedings around four years after the initial registration.  

The issue of justice is important because, as the recent case of Piper Land Development (Solihull) Ltd. v Rhondda Cynon Taf County Borough Council & Jones [2011] EWHC 3591 (Ch.) demonstrated, outside of pioneer areas section 14 of the Commons Registration Act 1965 continues to provide a mechanism for a landowner to call fresh evidence and have the registration of its land considered de novo by the High Court. In the pioneer areas section 19 of the Commons Act 2006 provides for the Registration Authority itself to consider rectifying past mistakes.

R (on the application of Newhaven Port and Properties Ltd) v East Sussex CC [2012] EWHC 647 (Admin)

Also in March the Newhaven case held that beach could become a registered green and that there is no common law “character test.” But the main principle of the case is that land shall not be registered as a green where there are reasonably foreseeable circumstances in which a statutory- undertaker-landowner would be hindered in exercising its statutory functions. Any use, even if not in conflict with the statutory-undertaker’s use, during the qualifying period will have been with implied permission. However, it appears that this principle will apply only in a very small number of cases. It is understood that this case is now under appeal and judgment is pending.

Mann, R (on the application of) v Somerset County Council [2012] EWHC B14 (Admin) (11 May 2012)

In the Mann case a landowner had occasionally, throughout the relevant 20-year period, held beer festivals and funfairs on what became the application land. During the beer festivals there was a marquee and it was necessary for members of the public to pay an entrance fee to get into it. However, the public’s use of the rest of the land was unaffected during the festivals.

The Inspector at inquiry recommended and the High Court upheld the rejection of the application on the basis that the landowner’s conduct gave rise to an implied permission that was referable not merely to footprints of the marquee but to the entire land. One of the various requirements for land to registered under section 15 of the Commons Act 2006 is that the local inhabitants have enjoyed the land without permission.

It was held that the twin features of exclusion and charging were fatal to user as of right as the combination of the two had been an assertion of the right of ownership and control over the land. It has been not controversial since R. (on the application of Beresford) v Sunderland City Council [2003] 3 W.L.R. 1306 that a landowner may take overt steps that will give rise to an implied permission.

In the writer’s view it is likely that the following aspects of the judgment will lead to further litigation (if not resolved as part of an appeal). First, that the landowner need only hold one event giving rise to an implied permission in the entire 20 years to defeat user as of right. Second, that the permission necessarily relates to the entire land. Third, as the judge appears to have said that it is a matter of fact in each case, to determine whether the landowner’s conduct gives rise to an implied permission – what factors are relevant and how are they to be weighted?

H.M. The Queen (on the application of Stephen Malpass) v The County Council of Durham [2012] EWHC 1934 (Admin)

The Malpass case was the first time that the courts have considered the vexed question of what can amount to an appropriation of land, by a land-owning local authority, to the purposes of section 10 of the Open Spaces Act or section 164 of the Public Health Act 1875. It is settled that where land is held under these statutes it will be outside the scope of the Commons Act 2006. A common problem for practitioners is that the historical records (e.g. committee minutes) are ambiguous or equivocal about decisions taken in relation to the land.

The Inspector at inquiry had been unable, on the evidence presented, to find, as a fact, that the land was acquired under the terms of a statute that would give rise to a statutory right for members of the public to use the land. He had said that this was “possible” but not “probable.” However, the Council had executed a Deed in 1964 making it clear that it held the land for the purposes of “Open Spaces” and “Public Walks, Parks and Pleasure Grounds.” The Inspector advised that this was enough to defeat the application. Permission was granted to proceed with judicial review on the basis that the Inspector’s Report took “… into account an immaterial consideration/error of law – in that the Deed was treated as an appropriation and/or it was concluded that no appropriation was required to apply the provisions of the Open Spaces Act 1906.”

The Inspector appears to have considered that the Deed had effected an informal appropriation and placed, in the course of so doing, reliance upon what Lord Scott had described in Beresford as an arguable proposition: that it was not necessary to formally appropriate land if the new purpose was not inconsistent with the original purpose. The judge accepted the submissions of Mr. George (which were numerous) on behalf of the applicant. However, of general importance was the judge’s acceptance that to be a valid appropriation a local authority must have concluded that the land subject to the appropriation was “not required” for its existing purposes. Moreover, to take effect as an appropriation the necessary formal requirements of the statutory mechanisms need to be complied with.

In Malpass it was clear that this had not happened at all. It was not accepted that the Deed was a “record of a decision by the local authority to hold land on the statutory trust for public recreation.” The judge was aware that new committee minutes from 1963/64 had emerged since the court proceedings had begun where the land was described as being “held as public walks and pleasure grounds.” The judge thought that this may influence the Inspector, upon a reconsideration, to find that the land was probably (and not just possibly) impressed with a statutory trust upon acquisition. It is understood that that is exactly what the Inspector found when it was remitted to him for a supplementary recommendation. It remains to be seen whether this case now returns to the courts. Practitioners should note however the importance of getting the evidence right at inquiry.

R. (on the application of Barkas) v North Yorkshire County Council [2012] EWCA Civ 1373

The Barkas judgment in July concerned an application to register land as a village green in circumstances where the land had been, in the relevant qualifying period, held for the purposes of successive Housing Acts (1936 – 1985). In the High Court the case had been concerned more particularly with the Housing Acts but in the Court of Appeal the submissions considered matters much more broadly.

Sullivan LJ ruled that there was, in his view, no difference between land held under the Open Spaces Act 1906 and the Public Health Act 1975 compared to recreational space provided under the Housing Acts except that there is no need for a local authority to appropriate such land, as in the instant case, it wishes to build houses on it. On the facts of the case as the decision had been taken to lay out the land as a recreation ground and the local authority had thereafter maintained it as such it would be “wholly unreal to conclude that the Field had not been ‘appropriated for the purpose of public recreation’ in the sense that was mentioned in the Beresford case. The land therefore, it was held, should not be registered as a green. However, the House of Lords in Beresford did not mention the Housing Act land and there is no statutory trust imputed onto such land. In the writer’s view, as a consequence of there being no general exclusion of local authority land from the Commons Act 2006, the law is trying to find over-arching principles to apply in these cases.

It is understood that the Barkas case is subject to an appeal to the Supreme Court. One important additional issue that flows from the Barkas litigation is the question as to whether land held under the section 19 of the Local Government (Miscellaneous Provisions) Act 1976 falls outside the scope of the Commons Act 2006. There is a good argument that user pursuant to this statute is not trespassory. In Barkas Sullivan LJ expressly said that it is unclear whether trespass is an essential characteristic of user as of right. This may well be resolved in 2013.

Post-registration issues

There were two cases in 2012 that touched upon matters arising from the registration of land as a green.

First, R. (on the application of Barnsley MBC) v Secretary of State for Communities and Local Government [2012] EWHC 1366 (Admin) where Barnsley MBC purported to made a compulsory purchase order under powers contained in section 121 of the Local Government Act 1972 and under section 2 of the LGA 2000. The Secretary of State refused to confirm the order on the premise that these statutory provisions were not relevant enabling powers in relation to a registered green. The High Court upheld the Secretary of State’s decision.

Barnsley felt that it was necessary to pursue such a course because the land was in private ownership and the owner was not cooperating with the proper maintenance and control of the land: there being a significant issue with nuisance and travellers. Other options that the Barnsley MBC may have taken include a Scheme under the Commons Act 1899 or byelaws under section 235 of the Local Government Act 1972.

Second, there was the unusual case of BDW Trading Ltd (t/a Barratt Homes) v Spooner [2011] EWHC 1486 (QB). It was successfully argued by Barratt Homes that the effect of the appropriation for planning purposes under Section 241(10) of the Town and Country Planning Act 1990 was sufficient to allow development on the land, notwithstanding the land being a registered green. The applicants argued that the effect registration had already been determined by the Supreme Court in R. (on the application of Lewis) v Redcar and Cleveland BC [2010] UKSC 11. Further, that interference and/or construction works on greens are subject to the criminal sanctions of the Victorian Statutes. It is notable that subsequent litigant landowners (presumably on advice from counsel) have not sought to rely on the Barratt Homes judgement. It appears that the Barratt Homes judgement may not deal with the common law rights of the inhabitants and it is a matter of concern that the land was not actually a registered green at the time of the judgement.

Reform

The Growth & Infrastructure Bill has, at the time of writing, completed committee stage in the House of Lords. There is a further debate scheduled for 12 March 2013. To date the legislation remains unamended from that proposed by the Government. The Bill places numerous obstacles in the way of would be applicants but perhaps of most effect will be the creation of a statutory pause on the right to apply wherever “trigger events” occur. Such triggers may include: (i) full or outline planning permission (ii) statutory pre-application consultation or (iii) planning permission had been granted until after the expiry of the planning permission (where no works had been carried out).

The bringing forward of the Bill may well have the effect of encouraging large numbers of inhabitants to lodge their application before it comes into force: this will create a large backlog of applications to deal with and undoubtedly create delay. Additionally, satellite litigation concerning the “triggers” and the designation of land may be forthcoming. Undoubtedly, getting a green registered will be become an even more fraught affair. There are already a number registration authorities that have had to consider thorny issues of administrative law such as (a) is it permissible to make repeat applications? and (b) when is a application properly or duly made? (an issue that can assume some importance when grace periods are being relied upon)

Conclusion

This article can only offer a snapshot on the cases and issues that were considered by the courts in 2012. It would easy to write in great detail about each one. However, what is clear is that there continues to be a throughput of litigation concerning greens reaching the courts. In 2013 it is to be hoped that the following issues are clarified:

  • The process of making application(s) and additionally in light of any reforms that are introduced.
  • When will publicly owned land not become a green?
  • What does a local authority have to show to prove that land has been “appropriated” and user rendered by right?
  • What are the criteria for implying a landowner permission from his or her overt acts on the land?
  • Is use of land owned by statutory-undertakers really automatically by virtue of an implied permission?
  • How safe are registered greens from development?
  • How are greens to be best managed?

In the writer’s view the interesting legal landscape in this area will continue to develop well into the later half of 2013 and perhaps beyond.

Paul Wilmshurst is a barrister at 9 Stone Buildings, Lincoln’s Inn who specialises in real property disputes. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it.. In the field of town and village greens Paul has represented landowning objectors, applicants and sits as an Inspector at public inquiries. He also contributes to villagegreenlaw.com.