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!

The Court of Appeal has delivered its eagerly awaited judgment in The Port of London Authority v Ashmore [2010] EWCA Civ 30.  The facts are, briefly, as follows:

Mr Ashmore owns a boat, “Atrato”, which he has moored at Albion Wharf, Battersea, for twenty five years or more. The Port of London Authority (“the Authority”) sought to register title to the bed and foreshore of the river, to include that part of the river on which the Atrato was moored. Mr Ashmore objected to the Authority’s application for first registration on the ground that he had acquired title to, at least, that part of the bed and foreshore of the river on which the Atrato rests at low tide by virtue of his adverse possession of the same. Following his objection to registration the Authority commenced proceedings against Mr Ashmore seeking, amongst other things, an order requiring the removal of the Atrato and an injunction preventing its return without the Authority’s licence. Mr Ashmore responded to the issue of proceedings by saying that, in his view, the outcome of the case would depend upon the answer to the following question: whether it is possible to acquire land by adverse possession of the foreshore and / or the sea or river bed by reason of mooring. The Authority seemed to have agreed that this issue was central to the eventual determination of the dispute and so it was ordered, by consent, that the following should be tried as a preliminary issue:

Whether it is possible for the owner of a vessel that is moored in a particular place on a tidal river or other area of tidal water to acquire title by adverse possession to the sea or river bed or the foreshore for the footprint of that vessel where:

(a) the title to the sea or river bed or the foreshore has not been registered; and

(b) the vessel rests on the bed or the foreshore at low tide.

For the purposes of determining the preliminary issue the Authority was required to prepare and serve on Mr Ashmore a statement of assumed facts. It was on the basis of those assumed facts that the Deputy Judge of the High Court in the Chancery Division, Mr Stephen Smith QC, was to make his determination on the preliminary issue of law. During the course of the proceedings counsel for the Authority made what the Deputy Judge described as “two important concessions of law”: (i) that, in principle, title to the bed of a tidal river can be acquired by adverse possession; and (ii) that the fact that the River Thames where Atrato is moored is subject to the public right of navigation would not, of itself, prevent title to the bed or foreshore being acquired by adverse possession. This point will be returned to later.

Stephen Smith QC, in his judgment, reviewed some of the well known authorities such as Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch), J A Pye (Oxford) Ltd and another v Graham and another [2003] UKHL 30, Powell v McFarlane and another (1977) 38 P & CR 452, Buckinghamshire County Council v Moran [1990] Ch 623 and Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125, all of which dealt with the acquisition of title to unregistered land by adverse possession.  It was acknowledged that in order to succeed in a claim of adverse possession it is necessary to establish both factual possession and the intention to possess (the animus possidendi). At the risk of oversimplifying the decision of the lower court (by my omitting to set out in any detail the analysis which was undertaken by the judge), Stephen Smith QC determined that:

… it is possible for the owner of a vessel that is moored in a particular place on a tidal river to acquire title by adverse possession to a part of the river bed where the title to the river bed has not yet been registered and the vessel rests on the bed at low tide. Indeed, since I have heard full argument on the point, I would go further and find that in this case Mr Ashmore has established the necessary fact of possession and the intention to possess, to have acquired title to the relevant part of the bed of the Thames adjacent to Albion Riverside.

The problem in this case is that what was to be determined in the original proceedings was based upon the assumed facts which had been prepared purely for the purpose of adjudicating upon the preliminary issue. Sir John Chadwick, giving the judgment of the Court of Appeal, stated:

The task of the courts, as it seems to me, is to decide cases on their facts in accordance with principle. The principles applicable to the acquisition of title to unregistered land by adverse possession are well established. The proper course, in the present case, is to determine what the facts are – a task which should not be unduly difficult – and then to apply those principles to the facts as determined (para [21]).

The statement of assumed facts does not have the status of a pleaded case … it was produced only for the purposes of the trial of the preliminary issue “and without prejudice to the parties’ respective pleaded cases”. It cannot be treated as a definitive or exhaustive statement of facts which either party would wish to advance at a trial … A decision on assumed facts which are neither definitive or exhaustive could not be determinative of the outcome at a trial (para [24]).

The upshot being that the parties have now found themselves, to all intents and purposes, back at square one in respect of this issue. Stephen Smith QC’s declaration in response to the question whether it is possible to acquire title by adverse possession to the sea or river bed in the circumstances posed by the parties was set aside by the Court of Appeal. This was because he had made a declaration in response to the hypothetical question  (hypothetical because it was predicated upon assumed facts) but had, in his judgment, said that he found that Mr Ashmore had, in fact, established the necessary fact of possession and intention to possess to have acquired title to the relevant part of the bed of the Thames. Therefore, the Court of Appeal concluded that “the declaration … is in terms which do not properly reflect the judge’s conclusion”.

Given that the judge recorded in his judgment  that counsel for the Authority had made two important concessions of law, the first being that, in principle, title to the bed of a tidal river can be acquired by adverse possession, it is highly questionable whether it was ever actually necessary to then adjudicate upon the preliminary question. The Court of Appeal’s judgment concluded:

…The issue raised in general terms [by Mr Ashmore] … is no longer contentious (if it ever was). It is accepted by the Authority that it is possible, in appropriate circumstances, to acquire title by adverse possession of the foreshore and river bed by reason of mooring. The question in this case has been, and remains, whether – on the facts as established (not on assumed facts) – Mr Ashmore has done so. That question needs to be tried. If I may say so, delay and expense would have been saved if it had been appreciated that (given the Authority’s decision to accept, in principle, that the title to the foreshore and river bed could be acquired by reason of mooring) this was not a suitable case for a preliminary issue.

Back to the High Court for the Authority and Mr Ashmore then. Watch this space…

Posted by: RM | December 30, 2009

2010: The Year of the New Town or Village Green?

It looks as though 2010 could well be another very significant year for the development of the law on the registration of new town and village greens (now governed by the Commons Act 2006, previously the Commons Registration Act 1965). In January the Supreme Court of the United Kingdom will hear the appeal in R (on the application of Kevin Lewis) v Redcar & Cleveland Borough Council & Persimmon Homes (Teeside) Limited [2009] EWCA Civ 3. This will be the fourth appeal in the context of the law on the registration of new town and village greens to come before the UK’s highest court in a little over a decade, the forerunners being Oxfordshire County Council v Oxford City Council [2006] UKHL 25,  R (Beresford) v Sunderland City Council [2003] UKHL 60 and R v Oxfordshire County Council Ex parte Sunningwell Parish Council [1999] UKHL 28. The decision will hopefully provide some welcome clarity on the question of the relevance of deference by the qualifying user to the landowner’s use of his own land and the relationship between such deference and the user as of right test which test is central to any prescriptive claim. Update: the decision in Redcar was handed down on 3 March 2010 – for a post on that decision see here.

The following month the High Court will judicially review the correctness of a registration authority’s decision to register land as a new green. One of the issues likely to be determined in that case is what constitutes a “neighbourhood” for the purposes of the statutory test. Section 15 of the Commons Act 2006 provides that any person may apply to the registration authority to have land registered as a new green where it can be demonstrated that a significant number of the inhabitants of any locality, or a 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 question what constitutes a neighbourhood has caused considerable confusion, particularly in the context of new green registration applications concerning land within a densely populated environment (usually a city or very large town). Unlike in rural settings where one might normally rely upon a parish as being the relevant locality, within large towns and cities, unless one can point to a specific administrative area as being the relevant neighbourhood, it can be quite difficult to coherently define one’s neighbourhood within a locality. There has been a limited amount of judicial guidance on what constitutes a neighbourhood for these purposes. In R (Cheltenham Builders) v South Gloucestershire Council [2003] EWHC 2803 (Admin) Sullivan J said that a neighbourhood cannot be any area drawn on a map, it must have some degree of cohesiveness. In Oxfordshire County Council v Oxford City Council [2006] UKHL 25, however, Lord Hoffmann said the phrase “any neighbourhood within a locality” (the wording of the relevant provision in the Commons Registration Act 1965 which is replicated in the 2006 Act) was obviously drafted with deliberate imprecision.

These cases promise to provide an interesting start to 2010 as far as the development of the law of new town and village greens is concerned.

The Court of Appeal delivered its judgment in Wild v (1) Secretary of State for Environment, Food and Rural Affairs & (2) Dorset County Council [2009] EWCA Civ 1406 just before Christmas. The case concerned a claimed public right of way over land in Dorset. The ownership of the land was never determined in the proceedings although the Appellant, Mr Wild, claimed that he owned the land over which the right was claimed as manorial waste.  There had been previous unsuccessful applications in respect of the claimed way but in 2003 Dorset County Council, the surveying authority, made an order under section 53(2)(b) of the Wildlife and Countryside Act 1981 that the path the subject of this litigation be added to the Definitive Map and Statement. This decision was confirmed by an inspector who held a public inquiry into the same. The decision was the subject of judicial review proceedings in the High Court where Keith J refused to quash the order. However, the Court of Appeal reversed the decision of Keith J.

There are two methods by which a new public right of way can come into existence. First, section 31 of the Highways Act 1980 provides for the presumption of dedication of a highway after 20 years use. That provision was held not to apply in this case. In the alternative the common law rules still apply, the statutory rules having been introduced to supplement rather than replace the common law. The main difference being that at common law it is not necessary to prove 20 years use which is a pre-requisite for the operation of the statute. This case was concerned with the application of the common law rules.

Ultimately the Court of Appeal determined that the order for the modification of the Definitive Map and Statement be quashed, the requisite test having not been met. Crucial to this decision was the fact that at a previous public inquiry in 1978 there had been objections to the registration of a bridleway along the same route as the claimed footpath. It is not clear whether either of the parties who made the objections were the owners of the land over which the way passed. However, Scott Baker LJ, giving the judgment of the Court of Appeal in this case, concluded that it was possible they could have been the landowner. If that was the case then the objections would have been sufficient to demonstrate that the landowner had no intention to dedicate the way as a public right of way. Unlike in other contexts in which the rules of prescription operate, in the context of public rights of way (as distinct from say easements or new town or village greens) if the landowner does something which amounts to evidence that he did not intend to dedicate a right of way, that will prove fatal to the claim, even where use is otherwise use ‘as of right’.

The end result is that whilst the possibility that one of the 1978 objections was made by the landowner remains alive, there can be no prospect of a public right of way being established. Of course, if the ownership of the land is determined and it becomes apparent that none of the objections came from the then landowner, the door will be open for modification of the Definitive Map and Statement at some later date.

One interesting aspect of the judgment concerned Scott Baker LJ’s criticism of the reasoning of Keith J at first instance. Keith J had concluded that whilst there had been objections in 1978, one of which may have been an objection by the landowner, any failure thereafter to continue to object to the public’s use of the way “neutralised” the effect of the objection made at the 1978 inquiry as far as any inference of dedication was concerned. Such failure to take active steps to prevent continuing user might well be insufficient to render user vi and, therefore, no longer use as of right, which would be insufficient to prevent a prescriptive claim succeeding in the context of a private right of way or new green claim. However, it is the need to infer dedication of the public right of way which enables any expression of contrary intention to have such a dramatic effect on the potential success of a prescriptive claim where public rights of way are concerned.

Posted by: RM | November 25, 2009

Mortgage Lenders Still Exercise Insufficient Caution

The recent decision of the High Court in HSBC Bank plc v Dyche & Collelldevall [2009] EWHC 2954 (Ch) illustrates that mortgage lenders are, despite cases such as Williams & Glyn’s Bank Ltd v Boland [1981] AC 487 in which it was established that a failure by lenders to make proper enquiries of those in actual occupation rendered those lenders exposed to interests which might potentially override their own interests, still not always sufficiently careful so as to avoid the ramifications of overriding interests and issues of priority which arise out of such interests being established.

In HSBC v Dyche property was conveyed to Mr and Mrs Dyche in 1994. The property had belonged to Mrs Dyche’s parents, Mr and Mrs Collelldevall, who had lived there since 1976. In 1988 Mr Collelldevall was made bankrupt. At that time he and his wife owned the property as beneficial joint tenants. The bankruptcy had the effect of severing that beneficial joint tenancy. Following Mr Collelldevall’s bankruptcy his Trustee in Bankruptcy obtained, in 1992, an order for sale of the property which order was not enforced. The then mortgagee subsequently obtained a possession order in 1993. That order was also not enforced. Mr Collelldevall was discharged from his bankruptcy at some time in early 1994.

In January 1994 the property was transferred by Mr and Mrs Collelldevall to Mr and Mrs Dyche with the agreement of Mr Collelldevall’s Trustee in Bankruptcy (“the 1994 Transfer”). The mortgage outstanding at the time was discharged upon completion of the transfer. A sum was also paid the Mr Collelldevall’s Trustee in Bankruptcy, thereby increasing the dividend in the bankruptcy. The purchase price was set to meet the Collelldevall’s immediate financial needs and commitments and bore no relation to the actual value of the property which was, at that time, much more than the £25,000 apparently paid by Mr and Mrs Dyche.

At the time of the transaction Mr and Mrs Collelldevall were unable to secure a mortgage against the property in their own names as a result of his bankruptcy. Hence, it was argued, and accepted, that the Dyche’s acquired the property on their behalf. The Dyche’s obtained a mortgage of £17,000 from Lloyds Bank and Mr Dyche was said to have borrowed the balance of £8,000 from a friend. However, the judge accepted Mr Collelldevall’s evidence that it was he who had borrowed the £8,000 from a friend. There was an agreement that Mr and Mrs Collelldevall would pay Mr and Mrs Dyche in monthly installments amounts which corresponded with the amounts due under the Lloyds mortgage. The judge accepted that following the 1994 Transfer the property was held on constructive trust for the Collelldevalls.

Later in 1994 Mrs Collelldeval died and the judge accepted that her interest in the property passed to Mr Collelldeval under the right of survivorship. Whilst the bankruptcy had had the effect of severing the joint tenancy the judge concluded that the effect of the 1994 Transfer was to put the Collelldevalls, as far as possible, back into their pre-bankruptcy position. Thus it was concluded that the Dyches held the property on trust for the Collelldevalls as beneficial joint tenants.

In 1995 Lloyds Bank advanced more monies to the Dyches which sum was repaid with later borrowings from HSBC. Lloyds did not take a further charge against the property in respect of this advance. In 2002 the property was transferred into the sole name of Mrs Dyche by herself and her husband in connection with divorce proceedings (“the 2002 Transfer”). This was said to be pursuant to a court order under which Mrs Dyche had paid to her husband the sum of £5,000 (the only consideration which passed in relation to the 2002 Transfer). On the same date as the 2002 Transfer Mrs Dyche gave HSBC a first legal charge over the property in order to secure an advance against that property. In order to obtain the mortgage Mrs Dyche had provided HSBC with what purported to be an assured shorthold tenancy agreement naming herself as landlord and Mr Collelldevall as tenant. The judge accepted that Mr Collelldevall’s signature was a forgery. Mr Collelldevall knew nothing of this mortgage and had not authorised it. A further advance was acquired by Mrs Dyche under a second mortgage from HSBC in 2003.

Mr Collelldevall gave evidence that he knew the property was going to be transferred into Mrs Dyche’s sole name but that she had promised to transfer the property to him thereafter. The judge found that Mrs Dyche had clearly perpetrated a deception upon her father; she was unable to transfer the property so long as monies remained outstanding in respect of the HSBC mortgages. Mrs Dyche had, it was concluded, acted in breach of trust. Whilst it was not established that Mr Dyche had anything to do with the forgery of Mr Collelldevall’s signature on the tenancy agreement the judge concluded that he must have known that he too was acting in breach of trust in transferring the property to his wife in return for £5,000 given that the property was beneficially owned by Mr Collelldevall, pursuant to the agreement at the time of the 1994 transfer.

The question for the court, therefore, was whether Mr Collelldevall’s beneficial interest in the property was overreached by HSBC’s interest under the terms of the mortgage(s). The judge reviewed the relevant provisions of the Law of Property Act 1925 (section 2(1)(ii) regarding the effect of a conveyance of land by trustees; section 205(1)(xxi) regarding the definition of a purchaser in good faith; and sections 2(1)(ii), 2(2) and 27, which require the conveyance to be made by at least two trustees) and, applying the law to the facts of the case, determined that the doctrine of overreaching did not here apply (for detailed analysis and reasoning see the judgment, paras [37] – [46]). It was held that Mr Collelldevall had a beneficial interest which overrode the registration of the HSBC mortgages pursuant to Paragraph 2, Schedule 3 to the Land Registration Act 2002.

The judge concluded that “HSBC could have avoided the present position by making inquiries of Mr Collelldevall, but, though a Letter of Consent was considered, they chose not to proceed down that route, as the documents appeared to be in order … By not making inquiries of Mr Collelldevall direct, they assumed the risk of the tenancy agreement turning out to be a forgery. The risk may have seemed remote, but has now come to pass, and HSBC misses out because of it”.

Once again, this is a clear reminder of the consequences of mortgage companies not making sufficient inquiries of propsective mortgagors where there is evidence that there is someone else occupying the property concerned. However, there is nothing in the facts to suggest that HSBC was or could have been aware that Mr Collelldevall and Mrs Dyche were related. On the face of it he was no more than a tenant with the benefit of an assured shorthold tenancy. It would have been plain from the nature of the tenancy agreement what rights Mr Collelldevall would or would not have had as a consequence of his shorthold tenancy. Without any reason to suspect that there was a familial relationship between Mrs Dyche and Mr Collelldevall this decision seems to suggest that any potential lender should make inquiries of shorthold tenants in order for their lending to be secure. This does, on the face of it, seem to be a particularly onerous obligation to impose upon all lenders, particularly given the recent increase in the acquisition of  ‘buy to let’ properties together with a tendency for property owners to switch their mortgages much more frequently, reflecting an inclination to always be in pursuit of the best deals on offer.

Postscript: For another view on this decision see here.

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