Betterment Properties (Weymouth) Ltd v Dorset County Council

JurisdictionEngland & Wales
CourtChancery Division
JudgeMr Justice Morgan
Judgment Date23 Nov 2010
Neutral Citation[2010] EWHC 3045 (Ch)
Docket NumberCase No: HC05C03912

[2010] EWHC 3045 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Morgan

Case No: HC05C03912

Between:
Betterment Properties (Weymouth) Limited
Claimant
and
(1) Dorset County Council
(2) Mrs G Taylor (On Behalf of the Society for the Protection of Markham and Little Francis)
Defendants

Mr George Laurence QC & Mr William Webster (instructed by Pengillys) for the Claimant

The First Defendant did not appear and was not represented

Mr Philip Petchey (instructed by Public Law Solicitors) for the Second Defendant

Hearing dates: 9 th, 10 th, 11 th, 14 th, 15 th, 16 th, 24 th, 25 th and 28 th June 2010

Mr Justice Morgan

The case in outline

1

This case concerns an area of open land in Weymouth, Dorset, known as Markham and Little Francis. The land is surrounded by built up areas, mostly residential areas, in Weymouth. The land is crossed by two footpaths. Until around 1980, the land was used for grazing. Since 1980, the landowners have not made any profitable use of the land. For many years, even before 1980 and continuing after 1980, local residents have walked on the land. They have not kept to the footpaths but have wandered more freely over the land. The reaction of the landowners to this activity will be described in detail later in this judgment. The landowners say that for a long period they tried to stop trespass on the land (away from the footpaths) but in the end they seemed to have given up because they simply could not stop it. The residents say that there was never any real attempt to prevent them walking freely on the land. Eventually, in 1997, an application was made to register the land as a town or village green. That led to a non-statutory public inquiry in December 2000. In June 2001, the registration authority determined that the land should be registered as a town or village green. An application by the landowners for judicial review of this decision was made and then discontinued. The landowners reserved their right to apply under section 14 of the Commons Registration Act 1965 to rectify the register and to cancel the registration of the land. Eventually, in December 2005, these proceedings were brought under section 14 to rectify the register in that way. These proceedings have already gone to the Court of Appeal which decided two preliminary points. I now give this judgment on the question whether the 2001 registration ought to have been made and whether it is just to rectify the register.

2

Mr Laurence QC and Mr Webster appeared on behalf of the Claimant, Betterment Properties (Weymouth) Limited. The First Defendant, Dorset County Council did not appear and was not represented. The Second Defendant, Mrs Taylor was represented by Mr Petchey. The case has been very thoroughly prepared and skilfully argued. These counsel are acknowledged experts in this area of law. I am fortunate to have had the considerable assistance which they gave me.

The land

3

The land which has been registered as a town or village green (hereafter "the registered land") extends to some 46 acres. At all material times, the registered land has been in the same ownership as a parcel of land to the west of the registered land. The registered land and the land to the west together comprise some 94 acres. These 94 acres are essentially open land and are not built on, although there were in the past some basic farm buildings on the land. The 94 acres in question are situate in Weymouth between Wyke Road to the south and Chickerell Road to the North. When referring to "the registered land", I am throughout referring to the land which was formerly owned by members of the Curtis family and is now owned by Betterment Properties (Weymouth) Limited (hereafter "Betterment") and which was in due course registered as a town or village green. I do not include in that description an area of land which has been shown as cross-hatched on the various plans which have been produced. I will refer to this area as "the cross-hatched land". It seems clear that it was never really intended that the cross-hatched land should be registered as part of a town or village green although, as it happens, it has ended up being included in the land so registered.

4

The registered land was, certainly in earlier times, separated from the land to the west of it by field boundaries and, as regards the northern block of the 94 acres, the two parcels are separated by a lane known as Cockles Lane.

5

There are two footpaths which cross the registered land. One footpath runs from the public highway at Markham Avenue (to the east of the registered land) across the registered land and leaves it in the south west corner of that land. The second footpath branches off from this first footpath at about its mid-point and runs in a westerly direction and joins Cockles Lane, which then runs across the land to the west of the registered land. Because of the presence of the footpaths, it is legally permissible for the public to cross the registered land by means of the footpaths. The first footpath to which I have referred was the subject of a temporary diversion for about three years from the end of November 1979. I will refer to that matter again when I deal with the position in relation to certain drainage works which began in around December 1979.

6

Many of the residents of Weymouth in the vicinity of the registered land obviously place a high value on their ability, as they see it, to use that land for walking and recreation. It is not relevant to the decision which I have to make to assess the amenity value of that land. It is clear from the authorities on the operation of the 1965 Act, that land can be a town or village green in law even if the land is unattractive with little amenity value. The local residents plainly regard the amenity value of the registered land as considerable. They would be very disappointed if it were no longer to be available to them as a town or village green. They would also be most concerned if the cancellation of the registration as a town or village green meant that the land could be brought forward for development. That last matter would of course be for the local planning authority and not for the court to decide in these proceedings. In these circumstances, it would be inappropriate, and might even be unhelpful, for me to add any subjective views of my own as to the amenity value of the registered land and I do not do so.

7

At all material times until January 2004, the registered land was owned by members of the Curtis family. It is not necessary to describe which member of that family owned which part of the land at which time. I will therefore refer simply to the land as being owned by the Curtis family. The Curtis family sold the land to Betterment in January 2004 and Betterment has since remained the owner of it.

The statutory provisions

8

The statutory provisions which are of principal relevance are contained in the Commons Registration Act 1965 (hereafter "the 1965 Act"). Although the 1965 Act was relevantly amended by the Countryside and Rights of Way Act 2000, in particular by section 98, and was then repealed by the Commons Act 2006, this case is governed principally by the 1965 Act before the 2000 amendment and before its repeal.

9

Section 1(1) of the 1965 Act provided for the registration of, amongst other things, a town or village green. Section 22(1), as originally enacted, defined "town or village green" so as to mean:

"Land [a] which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or [b] on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or [c] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years."

10

In the above definition, I have added the references to [a], [b] and [c], as is commonly done in setting out this definition. The present case is concerned with the third part of this definition. Greens in this class are commonly referred to as "class c greens".

11

By section 1(2) of the 1965 Act, after the end of a period, to be determined by an order made by the relevant minister, no land which is capable of being registered under the 1965 Act is deemed to be a town or village green unless it is so registered. Orders were made under section 1(2) determining that the relevant period ended on 31 st July 1970.

12

By section 2 of the 1965 Act, the registration authority for the purposes of the 1965 Act is the relevant county council, in this case, Dorset County Council.

13

Section 13 of the 1965 Act provided for regulations to be made under the 1965 Act to allow the amendment of the registers maintained under the Act where "any land becomes… a town or village green". The Commons Registration (New Land) Regulations 1969 have been made pursuant to section 13 of the 1965 Act.

14

The effect of the above provisions is that it is open to a person to apply for registration of land as a town or village green by relying upon user which falls within class c of the definition of "town or village green" where the user was for twenty years or more ending after 31 st July 1970. [I was not addressed on whether it is possible to include in the period of 20 years ending after 31 st July 1970, a period before that date and whether the answer depends on whether there was, or was not, more than 20 years user before that date and I will not discuss that point.]

15

Section 14 of the 1965 Act provides:

"The High Court may order a register maintained under this Act to be amended if –

(a) the registration under this Act of any land or rights of common has become final and the court is satisfied that any person was induced by fraud to withdraw an objection to the registration or to refrain from...

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