Posted by: RM | October 19, 2012

A New Threat to TVG Registration

Yesterday the Government published its Growth & Infrastructure Bill which includes, amongst other things, provisions that curtail the circumstances in which applications can be made to register new town and village greens under section 15 of the Commons Act 2006 by reference to “trigger” or “terminating events” that will be set out in a schedule to the 2006 Act. Further, landowners would be able to register a statement in the prescribed form with the commons registration authority that would bring to an end any period of qualifying use upon which an application for registration might be based. Sections 12 and 13 of the Bill (together with Schedule 4) are the key provisions.

It seems that cases on the registration of new town and village greens (“TVG’s”) are never far from the news these days. The High Court recently considered the lawfulness of a registration authority’s decision to register land belonging to a port authority in the case of Newhaven Port & Properties Limited v East Sussex County Council & Others [2012] EWHC 647 (Admin). This case concerned a claim by a landowner (Newhaven Port & Properties Limited) challenging East Sussex County Council’s (the registration authority) decision to register land (West Beach) as a new town or village green (“TVG”) pursuant to section 15 of the Commons Act 2006. That section permits the registration of land as a TVG in certain prescribed circumstances where the land has been used by a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, as of right for lawful sports and pastimes on the land for a period of at least 20 years. In this case there had been, as is typical in contested applications, a non-statutory public inquiry, presided over by an Inspector, as a result of which a report had been produced recommending registration. The relevant commons registration authority had resolved to register the land as a TVG in accordance with the Inspector’s recommendations. The landowner challenged that decision on a number of bases.

The issues included whether a tidal beach can be a village green at all given that it had no physical characteristics of a TVG (i.e. it is not ‘green and grassy’). The court was satisfied that such land could be registered on the strength of Lord Hoffmann’s speech in the House of Lords in Oxfordshire County Council -v– Oxford City Council and Robinson [2006] AC 674 (the Trap Grounds Case). The second line of attack concerned the fact that due to the ebb and flow of the tide there was no fixed boundary and that feature of the application land would preclude registration as a TVG. Again, this argument was rejected on the basis that even if the low water mark were to recede through accretion any further land exposed would simply not form part of the registered TVG. Conversely, if the beach were to be eroded the lawful recreational use of what has hitherto been so used will just become impossible (para 49). The third contention against registration was that because the application land was subject to certain byelaws which made some of the activities indulged in unlawful (and therefore not to be treated as qualifying use) and even those activities which were lawful could only be indulged in for some of the time, because the application land was completely covered in water for 42% of the time and partially covered to varying degrees for the rest of the time, such use did not justify registration as a TVG. The court rejected this argument too on the basis that it is not necessary for all of the land to be used all of the time. What is necessary, it was recognised, is that the use relied upon in the application is of a level and nature which, judged objectively, would make a landowner aware that the public is asserting a right (as confirmed by the Supreme Court in R (Lewis) -v- Redcar & Cleveland Borough Council [2010] UKSC 11). The fourth argument by the Claimant was that the fact that the application land was liable to be regulated by byelaws meant that any use would be permissive (precario in orthodox terminology). Reliance was placed on Lord Scott’s dicta in R (Beresford) -v- Sunderland City Council [2004] 1 AC 889. However, this argument was also rejected on the basis that the mere existence of the power to make byelaws does not, without more, render user precarious by virtue of any implied licence. The fifth argument, the successful one, I will return to in a moment. The sixth, and final, submission made by the Claimant was that the retrospectivity of section 15(4) of the Commons Act 2006 (the provision under which the application had been made) was incompatible with Article 1 of Protocol 1 of the European Convention of Human Rights. As has been consistently the case when human rights arguments have been aired in the matter of the TVG registration legislation, the court gave the argument short shrift and rejected any suggestion of incompatibility.

The fifth argument dealt with in Ouseley J’s judgment is the one on which the Claimant succeeded. Put very simply, the Claimant said that registration of the application land would not be compatible with its being operational port land. Reliance was placed on the decision of the House of Lords in British Transport Commission -v– Westmoreland County Council [1958] AC 126 in which it was held that a private right of way over land held for a special statutory purpose under a private Act of Parliament could be presumed to have become dedicated as a public right of way as a result of long use. The special status of the land did not of itself prevent dedication so long as dedication was not incompatible with the statutory purpose. Whether or not such an incompatibility exists or can arise will depend, according to the judgment of Ouseley J, upon whether it is reasonably foreseeable that a conflict might come about between the recreational use pursuant to TVG rights and the statutory purpose for which the land is held. On the strength of the evidence here that future alterations or improvements to the port, carried out pursuant to the statutory objects for which the land is held, might well conflict with recreational use it was decided that the land could not, therefore, be registered as a TVG because of the conflicting statutory regimes. The particular point, upon which the Claimant succeeded, adds a new obstacle to the new green registration battleground upon which the war between applicants and landowners is fought. Furthermore, this new line of attack is likely to produce fertile ground, in relevant circumstances, for generating further litigation and introducing even more complexity to the law in this area. Notwithstanding the foregoing observation, however, I have some doubt as to the legitimacy of the basis upon which the claim succeeded in this case. I certainly have some reservations about a refusal to register a new green (where the statutory test has been satisfied) on the strength of what the landowner may or may not want to do in pursuit of its statutory powers at some point in the future but has failed to safeguard throughout the preceding 20 years.

UPDATE: It is understood that permission to appeal has been granted.

Posted by: RM | November 9, 2011

Leases: Certainty of Term

It’s been quite a day for property lawyers – as well as the judgment in Kernott -v- Jones today saw judgment in the case of Berrisford -v- Mexfield Housing Co-operative [2011] UKSC 52. As decisions go it was perhaps not quite as “exciting” as Kernott -v- Jones but, nevertheless, the fact that a judicial committee of seven was convened to hear the case should give some indication of its importance, albeit on a topic which attracts rather less attention that the proper apportionment of interests in the family home in circumstances where the couple is not married.

The crucial issue in Berrisford -v- Mexfield, at least as far as I am concerned, was the relatively short point (which I am going to keep very short for now!) that it is well established that there can be no lease where there is no certainty of term (Lace -v- Chantler [1944] KB 368 (CA), Prudential Assurance Co Ltd -v- London Residuary Body [1992] 2 AC 386). Lord Neuberger, giving the leading judgment, said this (beginning at paragraph [33] – sorry, paragraph numbers left out of quote itself for technical reasons!):

Following the decision of the House of Lords in Prudential [1992] 2 AC 386, the law appeared clear in its effect, intellectually coherent in its analysis, and, in part, unsatisfactory in its practical consequences. The position appears to have been as follows. (i) An agreement for a term, whose maximum duration can be identified from the inception can give rise to a valid tenancy; (ii) an agreement which gives rise to a periodic arrangement determinable by either party can also give rise to a valid tenancy; (iii) an agreement could not give rise to a tenancy as a matter of law if it was for a term whose maximum duration was uncertain at the inception; (iv) (a) a fetter on a right to serve notice to determine a periodic tenancy was ineffective if the fetter is to endure for an uncertain period, but (b) a fetter for a specified period could be valid.

If we accept that that is indeed the law, then, subject to the point to which I next turn, the Agreement cannot take effect as a tenancy according to its terms. As the judgment of Lady Hale demonstrates (and as indeed the disquiet expressed by Lord Browne-Wilkinson and others in Prudential [1992] 2 AC 386 itself shows), the law is not in a satisfactory state. There is no apparent practical justification for holding that an agreement for a term of uncertain duration cannot give rise to a tenancy, or that a fetter of uncertain duration on the right to serve a notice to quit is invalid. There is therefore much to be said for changing the law, and overruling what may be called the certainty requirement, which was affirmed in Prudential [1992] 2 AC 386, on the ground that, in so far as it had any practical justification, that justification has long since gone, and, in so far as it is based on principle, the principle is not fundamental enough for the Supreme Court to be bound by it. It may be added that Lady Hale’s Carrollian characterisation of the law on this topic is reinforced by the fact that the common law accepted perpetually renewable leases as valid: they have been converted into 2000-year terms by section 145 of the Law of Property Act 1922.

However, I would not support jettisoning the certainty requirement, at any rate in this case. First, as the discussion earlier in this judgment shows, it does appear that for many centuries it has been regarded as fundamental to the concept of a term of years that it had a certain duration when it was created. It seems logical that the subsequent development of a term from year to year (ie a periodic tenancy) should carry with it a similar requirement, and the case law also seems to support this.

Secondly, the 1925 Act appears to support this conclusion. Having stated in section 1(1) that only two estates can exist in land, a fee simple and a term of years, it then defines a term of years in section 205(1)(xxvii) as meaning “a term of years … either certain or liable to determination by notice [or] re-entry”; as Lord Templeman said in Prudential [1992] 2 AC 386, 391B, this seems to underwrite the established common law position. The notion that the 1925 Act assumed that the certainty requirement existed appears to be supported by the terms of section 149(6). As explained more fully below, this provision effectively converts a life tenancy into a determinable term of 90 years. A tenancy for life is a term of uncertain duration, and it was a species of freehold estate prior to 1926, but, in the light of section 1 of the 1925 Act, if it was to retain its status as a legal estate, it could only be a term of years after that date. Presumably it was converted into a 90-year term because those responsible for drafting the 1925 Act thought it could not be a term of years otherwise.

Thirdly, the certainty requirement was confirmed only some 20 years ago by the House of Lords. Fourthly, while not a very attractive point, there is the concern expressed by Lord Browne-Wilkinson, namely that to change the law in this field “might upset long established titles” – [1992] 2 AC 386, 397A. Fifthly, at least where the purported grant is to an individual, as opposed to a company or corporation, the arrangement does in fact give rise to a valid tenancy, as explained below. Finally, it has been no part of either party’s case that the Agreement gave rise to a valid tenancy according to its terms (if, as I have concluded, it has the meaning for which Mr Wonnacott contends).

So, there we have it. Notwithstanding the criticism that has been leveled at the requirement for there to be certainty of term in order for a lease to be valid, the Supreme Court has refused to depart from that position on this occasion. My own view is that this was the right decision so today’s results produce a 50% rate of satisfaction from my perspective!

Posted by: RM | November 9, 2011

Jones -v- Kernott (Round 4)

It would have been impossible to have allowed today to pass without a short post about the Supreme Court’s judgment in Jones -v- Kernott [2011] UKSC 53 (it is quite possible that I will come back later with a more detailed post once I have had the opportunity to digest the whole decision more comprehensively!). I have previously written about the first appeal (from the decision of the trial judge) here and the appeal to the Court of Appeal here. My views since those posts were written are unchanged and it will come as no surprise to learn that I read the Supreme Court’s judgment with a sense of disappointment. The facts (shamelessly and idly copied and pasted from my original post) are, briefly, as follows:

Ms Jones and Mr Kernott bought a property, 39 Badger Hall Avenue, in 1985 and the property was conveyed into their joint names. The purchase price was £30,000 of which £6,000 was contributed by Ms Jones. The remainder was financed by an interest only mortgage, supported by an endowment policy. The mortgage and endowment policy payments were shared between the couple. The following year a further loan of £2,000 was taken out against the property for the purpose of building an extension and this was built and paid for largely by Mr Kernott. This is estimated to have enhanced the value of the property by almost 50%, from £30,000 to £44,000. Ms Jones and Mr Kernott shared the household expenditure (including bills and mortgage repayments) until the couple split up and Mr Kernott moved out of the property in 1993 (some 8 years later). Thereafter, Ms Jones made all of the interest only mortgage payments together with the payments against the endowment policy and met all expenditure in relation to the upkeep of the property. There were two children of the relationship who remained with Ms Jones. Mr Kernott made little or no contribution to their maintenance and none had been sought by Ms Jones.

Some time after the relationship had ended a life insurance policy was cashed and the proceeds split between the parties. In part this was to enable Mr Kernott to purchase a property for himself which he did in 1996, acquiring 114 Stanley Road, which he then financed alone. It is undisputed that Ms Jones never acquired any interest in the Stanley Road property. It is also undisputed that until the couple split up and Mr Kernott moved out of the property in 1993, the beneficial shares in the property were owned equally. The question for the court was whether, following the couple’s separation in 1993, the beneficial shares in the property were altered. At first instance the judge held that they had altered and concluded that Ms Jones was entitled to a 90% beneficial interest in the property on the basis that it was “fair and just”.

The leading judgment in the Supreme Court was, unusually, a joint judgment by Lord Walker and Lady Hale. Inevitably there was much reference to the applicability of the principles set out in Stack -v- Dowden [2007] UKHL 17. The crucial question at the heart of this particular case was whether, following Mr Kernott’s departure from 39 Badger Hall Avenue, an intention between the parties could be found which would rebut the presumption of joint beneficial ownership (which presumption generally arises where there is joint legal ownership and no express declaration of trust that the co-owners should own in anything other than equal shares). Reversing the decision of the Court of Appeal and restoring the determination of the trial judge (upheld in the High Court on appeal) the Supreme Court concluded that the facts in the present case did give rise to an inference that the intentions of the parties (to own the property in equal beneficial shares, consistent with their legal ownership) did change when Mr Kernott acquired his own property independently of Ms Jones. That finding, said Lord Walker and Lady Hale, was a finding made by the trial judge and there was, therefore, no need to impute any intention. This seems to me to fail to recognise that there was no evidence of such an intention referred to by the trial judge in his judgment (as was, in my view, implicitly recognised in Lord Walker and Baroness Hale’s judgment where, at para [48], it is said that “[the parties] intentions did change significantly. [The judge] did not go into detail”) and that this was the intention which he imputed to the parties. At para [47] it is explicitly recognised that the court cannot impose on the parties a solution which is contrary to the evidence of what the parties actually intended.

However, where the court cannot deduce from the evidence what the intentions of the parties were as to shares it was said that the court would have to ask what the parties intentions would have been as reasonable and just people had they thought about it at the time. At para [48] the abortive attempts to sell the jointly owned property, the cashing of the life insurance policy to, amongst other things, help fund Mr Kernott’s acquisition of a new property in his own name and the fact that he would not have been able to afford to do this had he still had to contribute to the property at 39 Badger Hall Avenue all gave rise to the “logical inference” that Mr Kernott and Ms Jones intended Mr Kernott’s interest in the Badger Hall Avenue property to crystallise then. Still looks like “imputed” intention to me, whatever the label given to the exercise…

Postscript: Inevitably, there has been a significant level of interest in this decision and there are lots of other interesting posts (adopting various views) which can be viewed at the following links (my apologies if I have left any out – if you would like links to your posts included please contact me):

http://www.marilynstowe.co.uk/2011/11/10/kernott-v-jones-on-bbc-breakfast/

http://nearlylegal.co.uk/blog/2011/11/jones-v-kernott-ending-the-big-debate/

http://obiterj.blogspot.com/2011/11/cohabitation-what-about-house-part-2.html

http://www.familylaw.co.uk/articles/HayleyTrim10112011-632

http://www.familylore.co.uk/

http://hklandlaw.wordpress.com/2011/11/11/jones-v-kernott-in-the-supreme-court/

For what it’s worth, I agree with those who denounce the lack of enthusiasm for introducing legislation to deal with the distribution / allocation / re-allocation of property rights upon the breakdown of relationships between co-habiting (non-married) couples – my objection is concerned with the use of property law principles for dealing with the same which, in my view, distorts and makes inappropriate use of well established principles (even if the outcome reached might, on the face of it, seem “fair”).

Posted by: RM | October 25, 2011

The Turning of the Tide in Village Green Law?

Following something of an extended hiatus in blogging activity it is intended (certainly hoped) that normal service – or perhaps even “improved” service – will hereafter be resumed. Perhaps a little predictably it is a village green case which features in this post (although a number of other posts will soon follow on a much broader range of property law issues). In the summer the High Court delivered its judgment in the case of Paddico (267) Limited -v- (1) Kirklees Metropolitan Council (2) William John Magee (3) Thomas Michael Courtney (the second and third defendants being sued for and on behalf of Clayton Fields Action Group) [2011] EWHC 1606 (Ch) which concerned an application by the Claimant for the rectification of the register of town and village greens maintained by Kirklees Metropolitan Council (“KMC”) by the removal from it of the entry relating to land known as Clayton Fields. The application was made pursuant to the provisions of the Commons Registration Act 1965 (“the 1965 Act”), the relevant parts of which provide:

Section 13

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

(a) any land registered under this Act ceases to be common land or a town or village green; or

(b) any land becomes common land or town or village green; or

(c) any rights registered under this Act are apportioned, extinguished or released, or are varied or transferred in such circumstances as are prescribed; …

Section 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 regualtions made under this Act;

and … the court deems it just to rectify the register

Clayton Fields had been registered as a new town or village green (“TVG”) on 14 April 1997 following an application to register it in 1996 pursuant to section 22 of the 1965 Act which, at that time, read as follows:

“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 application by the Claimant was based upon the proposition that KMC was wrong to register Clayton Fields as a TVG because the application did not satisfy the “inhabitants of any locality” requirement. The term “locality” has been given a very technical meaning and it was contended that it was necessary for the locality relied upon by the applicant to have been a legally recognised administrative district. The 1996 application to register Clayton Fields as a TVG had identified “Edgerton / Birkby” as the locality upon which it relied and this, it was submitted by the Claimant, was not a legally recognised administrative district. Hence, the statutory test was not met.

The first defendant, KMC, took no part in the proceedings, saying that it adopted a neutral stance and would abide by any order of the court. The second and third defendants on behalf of the Clayton Fields Action Group (“CFAG”) responded to the Claimant’s application on the basis that, firstly, the user demonstrated in 1997 was user by inhabitants of a qualifying locality and, second, in the event that the court did not accept that argument, that the necessary statutory criteria could be met now because of the more relaxed locality requirements introduced by section 98 of the Countryside and Rights of Way Act 2000 (“CROW”), amending section 22 of the 1965 Act, which provided that user could be either “by a significant number of the inhabitants of any locality or of any neighbourhood within a locality”. It was contended on behalf of CFAG that a new application made now would be able to show user by the inhabitants of the neighbourhoods of Edgerton and Birkby.

Vos J examined the relevant law at length. Those familiar with TVG law will be very aware of the highly technical nature of the law in this context which has generated a very substantial body of case law on the topic. Having done so the Judge considered the material that was available to the Committee which took the decision in 1997 to register Clayton Fields as a TVG and he concluded that the Committee had not been justified in making the registration because the locality requirement, when given its proper legal meaning, was not satisfied. Therefore, the court had to consider whether an application made at a later stage could have been successful. Two arguments were advanced by the Claimant to support its contention that such an application could not have succeeded. Only one of them played any significant role in the Judge’s reasoning. It was submitted that user after the date of registration did not constitute user “as of right” because the user thereafter was indulged in lawfully (ie it was not nec precario – without consent). This point was correct as a matter of law, said the Judge, but had to be considered again when one looked to the justice of the case. It could not be conclusive, he said, because that would automatically prevent opposition to an application for rectification by removal of a registration and would nullify the effect of section 14.

The Claimant’s case was bolstered, according to the Judge, on the basis that at the time of the original application the then landowner was about to appeal a refusal of planning permission – Clayton Fields was earmarked for development. Had the application for registration been unsuccessful, given the intended purpose for the land, the landowner would either have obtained permission to develop through the process of an appeal or, in the hope that development might later be permitted, the landowner would have taken steps to bring any qualifying use to an end. As a result of the registration of Clayton Fields as a TVG those options were not available to the landowner.

Vos J had, ultimately, to consider whether it was just to order rectification of the register within the requirement of section 14 of the 1965 Act. He concluded that, on balance, whilst the local inhabitants would lose the use of a recreational space there would be no other prejudice to them. The prejudice, however, to the landowner if rectification was not ordered would be to deprive the landowner of its lawful right to develop its land without compensation on the strength of its unjustified registration as a TVG.

On the facts this decision is unsurprising. However, it does perhaps signify the beginning of a trend for landowners to seek to undo the earlier registration of a TVG thereby restoring land to its full potential value for development. It is foreseeable in an era where government policy is moving in the direction of presumptions in favour of sustainable development and a recognition that there is an urgent need for new housing stock that there may be a new wave of TVG litigation, shifting away from issues concerning the appropriateness of new registrations to issues surrounding the inappropriateness of old registrations.

Posted by: RM | February 10, 2011

New Greens: Neighbourhood or Neighbourhoods?

Towards the end of last year I wrote about the decision of the High Court in the case of Leeds Group Plc v Leeds City Council [2010] EWHC 810 (Ch) in which the court determined that, in an application for the registration of a new green under section 22(1A) of the Commons Registration Act 1965, as amended by section 98 of the Countryside and Rights of Way Act 2000 (“CROW”) (now replaced by section 15 of the Commons Act 2006), there was no bar to there being users from more than one neighbourhood upon whose use the application for registration was reliant. Section 22(1A) provided that “land falls within this subsection if it is land on which for not less than twenty 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…” (my emphasis). To read my earlier post for the background, click here.

An appeal was heard in November 2010 and the decision of the Court of Appeal, dismissing the appeal, was handed down towards the end of December 2010 (Tomlinson LJ dissenting on the first ground of appeal); Leeds Group plc v Leeds City Council [2010] EWCA Civ 1438. Whilst the grounds of appeal were initially more broadly drafted, following the withdrawal of two of the grounds of appeal (grounds 2 and 3), all that remained to be determined by the Court of Appeal (other than the issue of costs) was (1) whether the word “neighbourhood” in subsection 22(1A) of the Commons Registration Act 1965 (as amended) could be read in the plural, and (2) whether the Appellant’s “as of right” submission should be rejected (the substance of this ground will be elaborated upon below).

Ground 1: Giving the leading judgment Sullivan LJ (who, as Sullivan J, had been responsible for the earlier introduction of “deference” in Laing Homes, which had the effect of dramatically limiting the prospect of succeeding in an application for the registration of a new green where there was concurrent use of the land by the recreational users and the landowner, until it was rejected by the Supreme Court in Redcar) held that he could see no logical reason why “any neighbourhood” in subsection 22(1A) should not include two or more neighbourhoods. The starting point, he said, was section 6(c) of the Interpretation Act 1978. Applying normal rules of statutory construction reference to the singular includes the plural unless the contrary intention appears. He concluded that there was nothing in the language of subsection 22(1A) which suggested that “any neighbourhood” must mean only one neighbourhood. He rejected the Appellant’s submissions which relied upon common law authorities on the meaning of “locality” (ie single or plural) in which the courts had adopted a narrow and restrictive approach. Arden LJ considered it relevant that the amendment to section 22 of the Commons Registration Act (by section 98 of CROW, introducing subsection 22(1A)) put what have become known as “class c” greens into a separate subsection, away from historic forms of greens based upon (“class a”) allotment and (“class b”) custom which depended upon a single locality defined by legally significant boundaries. She too was satisfied that the statutory presumption in section 6 of the Interpretation Act 1978, that the singular includes the plural, applied to the words in section 22(1A).

Ground 2: This ground was referred to as the “as of right” point by the Judge at first instance but was re-labeled the “user of inadequate quality before 30 January 2001″ point by the Appellant in the Court of Appeal. Put simply the argument went like this. Prior to the amendment introduced by subsection 22(1A) there was no reference to any neighbourhood in the statute. It was necessary for the inhabitants upon whose use registration was dependent to come from a locality. It was argued that until the amendment which took effect from 30 January 2001, thereby introducing the concept of neighbourhood within a locality, a landowner would not have known that it was necessary to prevent local people from using his land if they came from a neighbourhood rather than an identifiable locality because up to that point their use of the land would not have supported an application for registration of the land as a green. Referring to the words of Lord Hope in Redcar it was submitted that user by such a limited class of the public was not “of such amount and in such manner as would reasonably be regarded as the assertion of a public right”. However, Sullivan LJ concluded that without carrying out a detailed investigation the landowner will not know whether those using his land for recreation are coming from a particular locality or neighbourhood or neighbourhoods, but the fact that their recreational user of his land is more than trivial or sporadic will be sufficient to put him on notice that a right may well be being asserted and that it is the landowner’s choice whether to warn those users off or ultimately find that the apparently asserted right has, in law, been established. Both Tomlinson LJ and Arden LJ agreed with Sullivan LJ’s conclusion and reasons on this point.

Posted by: RM | October 5, 2010

Village Green Law: The “Neighbourhood(s) Issue”

The law on the registration of new town and village greens continues to generate litigation in the quest to determine the proper interpretation of the statutory test under section 15 of the Commons Act 2006 (previously the Commons Registration Act 1965, as amended by section 98 of the Countryside and Rights of Way Act 2000 (“CROW”)). One of the most recent cases to be decided by the High Court is Leeds Group Plc v Leeds City Council [2010] EWHC 810 (Ch), shortly to be the subject of an appeal. The main issue for the court to determine in this case was what constitutes a neighbourhood. Section 15 of the Commons Act provides that “any person may apply to the Commons Registration Authority to register land as a town or village green where a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years…”. The reference to “any neighbourhood within a locality” was first introduced by the amendment under s98 of CROW, the earlier statutory provision referring only to a locality. It is generally accepted that the purpose for this amendment was to make it easier for applicants to meet the statutory test. This amendment was regarded as particularly helpful to those seeking registration of land in an urban (rather than rural) context where the identification of a “locality” could sometimes be difficult, if not impossible.

In the Leeds case the court was referred to previous authority on the proper interpretation of what constitutes a “neighbourhood”. In R (on the application of Cheltenham Builders) v South Gloucestershire District Council [2003] EWHC 2803 (Admin) Sullivan J (as he then was) said that a neighbourhood had to have a “sufficient degree of cohesiveness” (para [85] of the judgment), although this comment was obiter. In the later case of Oxfordshire County Council v Oxford City Council [2006] UKHL 25 Lord Hoffmann said that the “any neighbourhood within a locality” requirement (added by the CROW amendment) was “obviously drafted with deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries” (para [27]).

In the Leeds case the Inspector, who chaired a public inquiry into the application and who made the recommendation to the Commons Registration Authority that the land should be registered as a green, had determined that the geographical area relied upon by the applicant was a neighbourhood for the purposes of the Act. The Judge in the High court disagreed but concluded that there were, in fact, two neighbourhoods, each of which independently satisfied the “cohesiveness” requirement referred to in Cheltenham Builders. On that basis, whilst the Judge concluded that the Inspector had erred in his finding that there was a single neighbourhood, the Judge held that the land could, nevertheless, be registered on the basis that the users came from two identifiable neighbourhoods. This inevitably gave rise to a discussion of whether the statutory test could be met where more than one neighbourhood is relied upon in such an application. The Judge said “the Act now only requires a ‘significant number’ of the inhabitants of ‘any neighbourhood within a locality’ to have indulged in the activities. There is nothing in the wording limiting the neighbourhood to ‘one neighbourhood’ and there is no logical reason why there cannot be two or more neighbourhoods” (para [96] of the Leeds judgment).

An appeal against this decision is to be heard by the Court of Appeal next month. Notwithstanding the already weighty body of case law on the law relating to the registration of new town and village greens, the proper interpretation of the statutory test is still causing much difficulty which can only be resolved by judicial determination. It is understood that in the Leeds appeal the correctness of the decision in R (on the application of the Oxfordshire & Buckinghamshire NHS Mental Health Trust and Oxford Radcliffe Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin), discussed in an earlier post, will also be challenged.

The Court of Appeal has delivered its eagerly awaited judgment in the case of Kernott v Jones [2010] EWCA Civ 578. I wrote about the decision of the lower courts here, having been left with a distinctly uneasy feeling about the way in which the authorities were being applied. Put simply, this case concerned the proper division of shares in a house which was jointly owned by the parties. The parties had separated some years before this case came before the court and each of the parties accepted that, at the time of their separation, they owned the property in equal shares.

The first issue which arises for determination in a case such as this is clearly articulated in Stack v Dowden [2007] UKHL 17 – where property is jointly owned at law, from which it follows that there is a presumption that the beneficial interests in that property are equal, can that presumption of equal beneficial ownership be rebutted? It is, quite logically, only necessary to address the question of the amount of the parties’ shares if this presumption is first rebutted. However, this is a high threshold to meet as was made clear in Stack – only exceptionally will it be possible to establish that the property is intended to be owned in anything but equal shares. In the present case the Court of Appeal, reversing the decision of the lower courts, concluded that there was no evidence from which it could be determined that the parties had, at some time after their separation, intended that their beneficial shares should be held other than equally. Lord Wall said this:

55. …This is not a case under the Matrimonial Causes Act 1973, and the government has not implemented the Law Commission’s proposals relating to unmarried couples. This court must resolve this appeal under the law relation to trusts as explained in Oxley v Hiscock and Stack v Dowden.

57. The critical question is whether or not I can properly infer from the parties’ conduct since separation a joint intention that, over time, the 50-50 split would be varied so that the property is currently held 90% by the respondent and 10% by the appellant…

58. …I simply cannot infer such an intention from the parties’ conduct. In my judgment, the conveyance into joint names, following Stack v Dowden created joint beneficial interests, and the parties agreed that when they separated they had equal interests. There has to be something to displace those interests, and I have come to the conclusion that the passage of time is insufficient to do so, even if, in the meantime, the appellant has acquired alternative accommodation, and the respondent has paid all the outgoings. In my judgment, the appellant has a 50% interest in the property, and both the judge and the deputy judge were wrong to conclude otherwise.

Not surprisingly the relevant authorities were examined at length. This was, it should be noted, a majority decision, Lord Justice Jacob dissenting. The judgments highlight, once again, the folly of unmarried couples purchasing property jointly and failing to contemplate the possibility of their later separation and the proper division of their property interests should such an event occur. In close personal relationships such discussions seem particularly unpalatable. However, they would probably have been more palatable than the three hearings to which Mr Kernott and Ms Jones have subjected themselves, together with all of the associated costs. From the perspective of the lawyer who has to advise parties who now find themselves in this position, it should make the likely outcome a little more predictable, thankfully…

For a more extensive discussion of this decision see Nearly Legal’s post here.

Section 15 of the Commons Act 2006 provides that:

Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where …

… a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years …

The proper interpretation of the component parts of this provision (and, more particularly, its predecessor provision in the Commons Registration Act 1965) has consumed what might be regarded by some as a disproportionate amount of judicial time over the last decade or so. Many issues of interpretation have now been resolved at the highest judicial level. However, one aspect of the statutory test which has undergone less close scrutiny has recently been considered by the High Court in the case of R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust) v Oxfordshire County Council & Others [2010] EWHC 530 (Admin): that is how one determines whether the user requirement is met? In this case the applicant was relying upon a “neighbourhood within a locality”. It should be noted that the application for registration in this case was actually made under the predecessor provision to section 15 of the Commons Act 2006; that is section 22(1A) of the Commons Registration Act 1965. However, the following discussion will be relevant to the proper interpretation of the current provision given that the statutory wording is reproduced therein.

The application in this case concerned a meadow, known locally as Warneford Meadow, of approximately 20 acres. The meadow is owned by an NHS Trust and is situated in a central location within the City of Oxford, surrounded by hospital sites and residential areas. The difficulty which faced the applicant in this case is one which many applicants may face when seeking to have land registered as a new green which is situated within a large urban area as distinct from an easily definable parish (say, a village), for example. How does one define a “neighbourhood within a locality” and what use is required in order to satisfy the “significant number of the inhabitants of … any neighbourhood within a locality” requirement?

At the public inquiry stage the meaning of  “neighbourhood within a locality” was a point of real contention. The applicant did not rely upon any recognised administrative ward or ecclesiastical parish or the like. The applicant had constructed its own neighbourhood for the purposes of making this application. The neighbourhood was given a name by the applicant (the Divinity Road Neighbourhood) but was made up of a number of predominantly residential roads. The Inspector who chaired the public inquiry rejected the Divinity Road Neighbourhood as being a neighbourhood for the purposes of the Act as it was an “artificial construct”. He did, however, find that Hill Top Road (which was one of the roads included in the “artificial” Divinity Road Neighbourhood) was a neighbourhood for the purposes of the Act and, therefore, the application could succeed on the basis that a significant number of its residents had made qualifying use of the meadow. Hill Top Road was substituted for the Divinity Road Neighbourhood and the application succeeded on that basis.

The Claimant in this case argued that the applicant could not succeed on the basis of this (smaller) neighbourhood because only about a third of the users actually came from Hill Top Road. Therefore, they said, the application must fail because the users did not come predominantly from the neighbourhood identified.

In order to understand the basis for this argument it is necessary to briefly look back at the original statutory provision which facilitated the registration of new greens, section 22 of the Commons Registration Act 1965, and the court’s interpretation of its proper application. This provision only referred to the need for “the inhabitants of any locality” to have indulged in lawful sports and pastimes (note that there was no reference to a “neighbourhood within a locality” – this was introduced by a subsequent amendment, discussed below). In R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335 Lord Hoffmann considered the effect of people from outside the locality also using the land with which the application was concerned. He said that whilst the statutory wording “merely requires proof of user by the inhabitants of any locality it does not say user only by the inhabitants of the locality”. Having then gone on to consider the evidence which had been put before the public inquiry Lord Hoffmann concluded that “it is sufficient that the land is used predominantly by inhabitants of the village [ie the locality in the Sunningwell case]”. The judge in the present case, HHJ Waksman QC, sitting as a judge of the High Court, noted that it was not clear whether the “Predominant User” test was part of the ratio of Sunningwell or not. However, on the assumption that it was at that time, he then went on to consider the amendment which replaced the old section 22 of the 1965 Act withe the new section 22(1A) (this amendment was introduced by section 98 of the Countryside and Rights of Way Act 2000). The material alterations to the original section 22 were to include a “neighbourhood” as an alternative to a “locality” and to alter the user requirement from “the inhabitants of any locality” to one requiring “a significant number of the inhabitants of any locality”. This, it was noted by Carnwath LJ in Oxfordshire County Council v Oxford City Council [2006] Ch 43, introduced “the new concept of ‘neighbourhood within a locality’, and required no more than a ‘significant’ number of local users”. The effect of that, said HHJ Waksman QC in the present case, is that the Predominant User test (arguably introduced by Lord Hoffmann in Sunningwell) was not carried forward into the new section 22(1A) of the 1965 Act. So as to leave no room for doubt he also reviewed the Parliamentary materials which were relevant to that statutory amendment which he concluded could not have been clearer; predominant user was not a requirement. This had also been expressly recognised by Lord Hoffmann in Oxfordshire County Council v Oxford City Council [2006] UKHL 25.

What impact does this decision have? Applicants seeking to have land registered as a new green can rely upon very limited areas (a single residential road, it seems) as a neighbourhood within a locality for the purposes of meeting the statutory test; what they cannot do is artificially construct a neighbourhood for the purposes of making an application. If a neighbourhood can be identified then it is enough that a significant number of inhabitants of that neighbourhood have made qualifying use of the application land. The fact that other people from outside the neighbourhood may also have used the land in a qualifying manner will not cause the application to fail because it is not necessary for the qualifying users to come predominantly from within the neighbourhood.

Posted by: RM | March 20, 2010

A Triumph for Village Green Enthusiasts

On 3 March 2010 the UK Supreme Court handed down its decision in R (on the application of Kevin Lewis) v Redcar & Cleveland Borough Council & Anor [2010] UKSC 11. This decision represents a (welcome) U turn in the law on the question whether deference by the recreational users of a claimed green to the use being made of the land by its owner has any relevance to whether or not the user “as of right” test is met. The Court of Appeal, whose decision in this case was reversed by the Supreme Court, had previously upheld the “judge-made law” (as acknowledged by Sullivan J who granted leave to appeal from his own decision in this case) which determined that where recreational users had deferred to use made by the landowner of his own land, that deference was sufficient to render the user relied upon not as of right (which is a prerequisite for a prescriptive claim).

The Supreme Court was having none of it, and rightly so. The introduction of this qualification had overcomplicated the as of right test which is at the heart of any claim based upon the doctrine of prescription. Not only was it creating a chasm between the user as of right test in the context of new green registration applications and the other contexts in which the as of right test is applicable (ie the prescriptive acquisition of easements, public rights of way and profits a prendre), it was also defeating the purpose of the Commons Act 2006 which exists to facilitate the registration of new greens when the particular statutory requirements are met.

It is no doubt as a result of the increased number of new green registration applications that the Inspectors (who chair public inquiries into the registration of new greens) and the courts have become a little sceptical about the validity and purpose of such applications. However, on this subject Lord Walker had this to say at paragraph [48] of his speech:

Disparaging references are sometimes made to the “village green industry” and to applications for registration being used as a weapon of guerrilla warfare against development of open land. The House of Lords has (both in Beresford and Oxfordshire) expressed some doubt about the extension of town or village green protection to land very different (both in size and appearance) from a traditional village green. However, in the Commons Act 2006 Parliament has made it easier, rather than more difficult, to register a green…

It is the suspicious approach to the proliferation (and likely continued proliferation) of new green registration applications that had no doubt given rise to the court’s acceptance that the user as of right test could and should be qualified by the concept of deference, not least because it would be a way of curtailing the number of applications which might otherwise succeed. However, qualifications to well established legal tests should only be acknowledged when they have some genuine legal basis, which deference did not.

The decision of the Supreme Court is to be welcomed. It was acknowledged that where two uses (the use of the landowner and the use of the recreational users) coincide there may be occasions when the two rights of user cannot be enjoyed simultaneously; the deference of one party to the other’s use simply being a matter of courtesy. Nothing more than that. Even more pleasing is the fact that Lord Hope, at paragraph [76] of his speech, referred to my article in which I had criticised the Court of Appeal’s decision in this case!

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