Betterment Properties (Weymouth) Ltd v Dorset County Council

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Hodge,Lord Toulson,Lady Hale,Lord Sumption,Lord Neuberger
Judgment Date05 Feb 2014
Neutral Citation[2014] UKSC 7

[2014] UKSC 7


Hilary Term

On appeal from: [2012] EWCA Civ 262; [2012] EWCA Civ 250


Lord Neuberger, President

Lady Hale, Deputy President

Lord Sumption

Lord Toulson

Lord Hodge

Adamson and others
Paddico (267) Limited
Mrs Gill Taylor (on behalf of the Society for the Protection of Markham and Little Francis)
Betterment Properties (Weymouth) Limited

Appellant (Paddico)

George Laurence QC Ross Crail

(Instructed by DLA Piper UK LLP)


Charles George QC Philip Petchey Ned Westaway

(Instructed by Public Law Solicitors)

Appellant (Taylor)

Charles George QC Philip Petchey Ned Westaway

(Instructed by Public Law Solicitors)


George Laurence QC William Webster

(Instructed by Pengillys Solicitors)

Intervener (Geo H Haigh & Co Limited)

Martin Carter

(Instructed by Baxter Caulfield)

Heard on 15 January 2014

Lady Hale, (with whom Lord Neuberger, Lord Sumption, Lord Toulson and Lord Hodge agree)


What happens if land is registered as a town or village green when it should not have been? There is power to rectify the register, but what is the effect of the lapse of time (a less pejorative term than "delay") between the registration and the application to rectify? There are many private and public interests in play – those of the landowners who have wrongly been severely restricted in the use to which they can put their land, those of the local inhabitants who have rightly been enjoying the amenity of the green since its registration, and those of the wider public which are many and varied – such as protecting the accuracy of public registers, preserving public open spaces, or securing that land earmarked or suitable for development can be used for that purpose.

The statutory background

The principal purpose of the Commons Registration Act 1965 was, as its long title says, to provide for the registration of common land and of town and village greens. Section 1(1)(a) requires that "land … which is … a town or village green" be registered in accordance with the Act. Section 1(2)(a) provides that "no land capable of being registered under this Act shall be deemed to be … a town or village green unless it is so registered" by the deadline prescribed by the Minister, which was 31 July 1970. This meant that the rights of local inhabitants over such ancient but unregistered greens were extinguished. However, the Act contemplated the possibility of land becoming a town or village green in the future. Regulations under section 13(b) could and did provide for registers to be amended where "any land becomes… a town or village green" (emphasis supplied) (see the Commons Registration (New Land) Regulations, SI 1969 No 1843).


Three separate categories of "town or village green" are defined in section 22 of the Act (since amended by section 98 of the Countryside and Rights of Way Act 2000, but not so as to affect these cases):

"'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 first and the third might arise after the statutory deadline, whereas the second could not. In reality, however, provided that the local inhabitants continued to exercise their customary rights "as of right" for 20 years, they would be able to register the land as a "new" or "modern" green. But it was also possible for many other pieces of land on which the inhabitants of any locality had indulged in lawful sports and pastimes as of right for at least twenty years to be registered. This gave rise to several important cases deciding upon the requirements for registration as a new or modern green and on the consequences of such registration, many of them relevant to the issues in the two cases with which we are concerned: see, for example, R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, R (Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889, Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674, and R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11, [2010] 2 AC 70.


No procedure was laid down, either in the Act or in the Regulations, for the registration authority, normally a County Council, to decide such matters. Practice varies, with some holding elaborate public inquiries and others deciding matters more informally, as illustrated in the two cases before us. By section 10 of the Act, registration of any land as a town or village green is conclusive evidence of the matters registered, as at the date of registration.


Section 14 of the Act gives the High Court power to order the amendment of the register in two circumstances, only one of which is relevant here:

"… 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 Regulations made under this Act; and … the court deems it just to rectify the register."

Anyone may apply for rectification, although the owners of the land registered as a green are most likely to want to do so. There is no statutory deadline for making such an application. The question, therefore, once it has been decided that the entry on the register ought not to have been made, is the relevance of the lapse of time since the registration in deciding whether it is "just" to order rectification.

Betterment: the facts

In 1994, a Mrs Horne applied to Dorset County Council, on behalf of the Society for the Protection of Markham and Little Francis, for the registration of some 46 acres of open land in Weymouth. These were part of a larger area of land owned by the Curtis family which had been let for grazing but had ceased to be so used in around 1980. Two public footpaths crossed the land but local residents and their dogs had wandered more freely over the area. Mrs Horne relied upon 20 years' use by local inhabitants for lawful sports and pastimes after 31 July 1970. The Curtis family objected. Her first application was declined but she made a second one in 1997 which the County Council's Rights of Way Sub-committee decided should be referred to a non-statutory public inquiry before a panel of three county councillors. They held an oral hearing in December 2000 and received a great deal of written material, oral evidence and both oral and written submissions. In June 2001, the Council notified the parties, in a detailed reasoned decision letter, that it had decided to register the land as a new town or village green. In December 2001, a Mr and Mrs Thompson bought a house at the south west corner of the registered land, having been told of the registration by the vendors and having researched the matter on the website of the Open Spaces Society (which is supporting this appeal). They also discovered that none of the Curtis family's land was designated for development in the draft local plan although the Curtis family were objecting to aspects of this.


In August 2001, Mr Barry Curtis applied on behalf of the landowners for judicial review of the Council's decision. The Council objected that this was inappropriate as Parliament had provided the remedy of rectification in section 14 of the 1965 Act. Acting on legal advice, therefore, Mr Curtis discontinued the judicial review proceedings in December 2001, without prejudice to his right to apply under section 14. The Curtis family subsequently sold the land to Betterment Properties (Weymouth) Ltd for a price which was much less than the land would have been worth had it not been registered as a green but rather more than it was worth as a registered green. Agreement was reached with the various members of the Curtis family in stages over 2003 and 2004 and Betterment finally acquired title to the whole of the Curtis family's land in May 2005.


In December 2005, Betterment began the present proceedings under section 14 for rectification of the register. Two preliminary issues were raised, one being the scope of the jurisdiction: was it a full rehearing or a review to be conducted on either appellate or judicial review principles? Lightman J determined that it was a full rehearing and this was confirmed by the Court of Appeal: [2008] EWCA Civ 22. The case therefore returned to the Chancery Division for a hearing, which was conducted by Morgan J over nine days in June 2010, partly in Weymouth and partly in London. By that time, Betterment accepted that most of the land had been used for lawful sports and pastimes for twenty years before the application made in 1997. The principal issues were whether the whole of the land had been used for that purpose for that period and whether the use had been "as of right".


Morgan J gave judgment allowing the application to rectify in November 2010: [2010] EWHC 3045 (Ch). The greater part of his judgment is devoted to the two substantive issues bearing on the first requirement of section 14(b): whether the entry on the register ought to have been made. He decided that it ought not: he found that the use of the land had been contentious and thus not as of right until some time in the 1980s, which he put at 1984. He went on to consider whether it would be "just" to rectify the register. In relation to Mr and Mrs Thompson he found that they bought the house on the basis that development to the north was unlikely, but without distinguishing between the registered green and the rest of the open land. If they had investigated the position...

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