Supreme Court in key ruling on village greens and rectification

The Supreme Court has handed down a major ruling on applications to rectify the register of town and village greens, lapses of time and the question of whether there would be a serious detriment or prejudice should an application be granted.

The ruling in the conjoined cases of Adamson and others (Respondents) v Paddico (267) Limited (Appellant) and Mrs Gill Taylor (on behalf of the Society for the Protection of Markham and Little Francis) (Appellant) v Betterment Properties (Weymouth) Limited (Respondent) [2014] UKSC 7 concerned the effect of a lapse of time on an application for rectification made under s. 14(b) of the Commons Registration Act 1965.

The Paddico case involved land known as Clayton Fields in Huddersfield. Planning permissions dating back to the 1960s had been granted for housing development on the land, and it remained designated for such development in local plans. However, no building had occurred.

In 1996 the Clayton Fields Action Group successfully applied to register the land as a village green. The landowners subsequently sold the land to Paddico in 2005. Five years later the company applied for rectification of the register.

In the High Court Mr Justice Vos granted the application. The judge said the land had been wrongly registered (as it had not been used by inhabitants from a single locality). It was just to rectify the register, despite the delay, because little prejudice had been demonstrated by the residents.

The Court of Appeal agreed that the land had been wrongly registered but by a majority allowed the appeal on the basis that the lapse of time made it unjust to rectify the register.

The second appeal related to the Society for the Protection of Markham and Little Francis’ successful application to register 46 acres of open land in Weymouth as a village green in June 2001.

Betterment bought the land in May 2005 and later that year applied to rectify the register.

Mr Justice Morgan ruled that the registration should not have been made (as the land had not been used ‘as of right’). He concluded that it was just to rectify the register as the inhabitants had been enjoying rights which they should never have had. The Court of Appeal upheld the ruling.

The Supreme Court unanimously allowed Paddico’s appeal but dismissed that made by the Society. It held that a lapse of time was not immaterial to the justice of applications for rectification but in both these cases there was no evidence before the court to show that significant detriment to others had occurred as a result.

Giving the only judgment, Lady Hale said that where there had a lapse of time before making the application the court must adopt a principled approach to its relevance.

She said there were three possible analogies at least: with the principles applicable to public law claims (which are subject to short time limits); with the principles applicable to private law claims where Parliament has provided a limitation period; or with the principles applicable to private property claims where Parliament has not provided a limitation period, as embodied in the equitable doctrine of laches (unconscionable delay).

Lady Hale said that when the applicant for rectification was the owner of the land, the starting point was the 1965 Act. This laid down no limitation period for applications made under s. 14. Also, there was not bias in the section either for or against rectification – the section only required for rectification to be ‘just’.

The principles of good administration, the judge said, required not only a conclusive register but that the register was accurate and had been lawfully compiled.

“To my mind…. although the interests of the wider public are not irrelevant, the section is principally focusing on justice as between the applicant for rectification of a registration and the local inhabitants who are the beneficiaries of that registration,” Lady Hale concluded.

She continued: “Where the applicant is the owner of the land, the starting point, as it seems to me, is that the landowner’s rights have been severely curtailed when they should not have been, and the inhabitants have acquired rights which they should not have had.”

However, the judge said it did not follow that the lapse of time was immaterial. “None of the appellate judges thought that it was. Parliament has seen fit to deprive people of their right to bring proceedings to vindicate their rights after a certain period of time no matter how unjust this might seem to be.”

In this case Parliament had not seen fit to set a deadline for these applications, nor was there an obvious analogy within the Limitation Acts, she found. “The better analogy would therefore appear to be with the equitable doctrine of laches, which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice.”

Lady Hale suggested that knowledge of the facts was unlikely to be a problem in most of these cases as landowners will have been notified of and had an opportunity to object to the registration before it was made. A subsequent purchaser was able to consult the register before deciding to buy.

The judge said that if a landowner did know about the registration, it did not appear to her that the fact a purchaser bought with knowledge of the registration and at a discounted price was likely to make much difference.

“His rights as landowner have still been severely curtailed and he sustains harm as a result,” Lady Hale said. So too did the original landowner in the position of the company in the Paddico case because of the overage provisions in the contract of sale to Paddico.

The judge said the issue of acquiescence might meanwhile be especially relevant where an application for rectification was made by someone other than the landowner.

“Then the applicant probably has no private interest to vindicate and the fact that the landowner has chosen to take no action may be highly relevant to the justice of the case. Even here, however, the considerations might be different if the applicant were a public authority – perhaps another local authority – seeking to vindicate some public interest.”

She said it was a “curiosity” of the Paddico case that the land was registered as a green even though it had long been allocated for housing by the local planning authorities.

Lady Hale concluded that the crux of the matter was usually the question of detriment or prejudice. There were at least four relevant kinds:

1. Prejudice to the local inhabitants: “Given that this is a right which they should never have had, this element of prejudice may not be very weighty. Nevertheless, practices may have developed over the years which it would be detrimental to the inhabitants to lose….”;
2. Prejudice to other individuals: There may be people who have made decisions which they would not otherwise have made on the basis that the land is a registered town or village green. People may have bought houses because of it or they may have refrained from selling houses because of it;
3. Prejudice to public authorities and the public they serve: The authorities may have made decisions in reliance on the registration which they would not have made without it. “For example, the local planning authority may have granted planning permission for residential development on other land because the green is not available for development. On the other hand, maintaining the registration of a village green which ought not to have been registered may be damaging to such interests, as where the land is allocated for much needed local housing”;
4. Prejudice to the fair hearing of the case: The longer the lapse of time since the original registration, the more difficult it may be to have a fair trial of the issues relating to the registration, “perhaps in particular as to the length and nature of the use to which the land was put in the twenty years previously and to whether it was contentious or as of right”.

Lady Hale said there must be “some solid material” from which inferences of prejudice could be drawn, and speculations or assumptions were not enough. (The Court of Appeal majority had suggested that after a certain lapse of time prejudice could be inferred without evidence).

Applying these principles, the judge said the courts below had reached the right decision in the Betterment application, where there was no evidence of prejudice and no material from which the likelihood of prejudice could be inferred.

Lady Hale said that in the Paddico case the relevant lapse of time was – at more than 12 years – much longer than in the Betterment case. However, “there was no evidence at all of any specific prejudice to the local inhabitants, other than the loss of the right to use the land for recreation”.

Mr Justice Vos had been entitled to reach the conclusion that the register should be rectified, she found, and so his decision should be restored.