Supreme Court to rule on deregistration of town and village greens

The Supreme Court is set to rule this week on two conjoined cases concerning whether it is just to de-register land registered as a town or village green when there was a legal error that led to the registration.

The question of delay is central to both Taylor v Betterment Properties (Weymouth) Limited [2012] EWCA Civ 250 and Adamson v Paddico (267) Limited [2012] EWCA Civ 262.

The Betterment case dates back to 1994, when local residents sought to register some land as a town or village green pursuant to s.13 of the Commons Registration Act 1965. The then owners objected and the application for registration was refused.

A second application was made and inquiry held. The council acceded to the second application.

The land was then sold to the respondent company, which applied under s. 14 of the 1965 Act to rectify the register to remove the registration of the land as a TVG on the basis that the user of the land by the residents had been contentious (not nec vi).

A High Court judge ordered rectification on that ground, held that user of a part of the land on which works had taken place for a period had been interrupted so as not to have amounted to the required 20 years’ continuous user and that it was just in the circumstances to rectify the register.

The Court of Appeal agreed. The residents sought permission to appeal to the Supreme Court.

The key issues in Betterment are:

• Whether user of the land was as of right or contentious;
• Whether part of the land on which works took place interrupted user by those seeking registration of a TVG;
• Whether it would be ‘just’ to rectify the register.

In contrast to Betterment, the Paddico case saw the Court of Appeal rule against rectification.

In this case an application was made on 9 December 1996 to register Clayton Fields as a TVG under s.13 of the 1965 Act. The local authority acceded to the application on 14 April 1997.

In May 1997, Geo.H.Haigh & Co, the then owners of much of the land, commenced proceedings under s.14 of the 1965 Act for rectification of the register.

In April 2000 those proceedings were automatically stayed under CPR 51 PD 19(1) for want of prosecution.

In October 2004, Haigh transferred those parts of the land which it owned to the appellant who was registered as freehold owner on 15 March 2005.

The new owner applied on 19 December 2008 to lift the stay. This application was dismissed by the Deputy Master and permission to appeal was dismissed by a High Court judge (Sales J) on 24 March 2010.

The latter application was granted by Vos J, but the Court of Appeal overturned that decision on the principal basis that the delay was such as to render it not just to rectify the register.

The issue in Paddico is “whether the passage of time can, without more, be the decisive reason that it is not just within the meaning of s.14 of the Commons Registration Act 1965 to rectify the register in relation to a town or village green”.

Lord Justice Sullivan, in the Paddico case, had said: “While it must be desirable, in principle, that errors in a public register should be rectified, the delay of over 12 years in seeking rectification of the register in this case was, by the standards of any reasonable legal process, so excessive as to make it not just to rectify the register.”