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.


Responses

  1. If i had some land and it has been made into a village green (thus rendering it completely uselss to me) can I claim compensation? Perhaps from the council whom have made the decision? I would like to know where I stand legally.
    I bought a plot of land with the promise of development and the local residents applied to make it a village green and it looks like it will be successful

    • No – you cannot claim compensation from the Council. You may look to the person that sold you the land if they have failed to disclose something of significance to you about the use that was being made of the land during the process of purchasing it. Or you might look to whoever represented you during the purchasing process to see if there was some failing on their part. Finally, if there is any error in the decision of the council assuming that the land is registered as you suspect it will be, you could consider judicially reviewing the decision to register (time limit for making an application is 3 months from date of decision). You probably ought to go and take some independent legal advice.


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