Rowena Meager's Property Law Blog

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.