Betterment Properties (Weymouth) Ltd v Dorset County Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LIGHTMAN,Mr Justice Lightman |
| Judgment Date | 02 March 2007 |
| Neutral Citation | [2007] EWHC 365 (Ch) |
| Docket Number | Case No: HC05C03912 |
| Court | Chancery Division |
| Date | 02 March 2007 |
[2007] EWHC 365 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lightman
Case No: HC05C03912
Mr George Laurence QC and Mr William Webster (instructed by Pengillys, Post Office Chambers, 67 St Thomas Street, Weymouth, Dorset DT4 8HB) for the Claimant
Mr John Hobson QC and Mr Philip Coppel (instructed by Mr Jonathan Mair, Head of Legal and Democratic Services, Dorset county Council, County Hall, Colliton Park, Dorchester DT1 1XJ) for the Defendant
Hearing dates: 23 rd– 24 th January 2007
Approved Judgment
I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
FACTS
The application now before me is for the determination of two preliminary issues of law. The issues are as to the construction of provisions of the Commons Registration Act 1965 (“the 1965 Act”) and of the Countryside and Rights of Way Act 2000 (“the 2000 Act”). These issues arise in the context of the claim in this action by Betterment Properties (Weymouth) Limited (“the Claimant”) against Dorset County Council (“the Defendant”) as registration authority for the purposes of the 1965 Act for an order under section 14 of the 1965 Act for the rectification of the Register of Town and Village Greens by removing therefrom an area in the region of 46.2 acres of undeveloped land at Markham and Little Francis, Wyke Regis, Weymouth Dorset (“the Land”) owned by the Claimant. It is appropriate on this application to determine the preliminary issues to refer in this judgment only to the few agreed facts relevant to their determination.
The Land belonged until 2004 to members of the Curtis family. I shall refer to them as “the Curtis Family”. On either the 17 th March 1997 or the 30 th September 1997 (it matters not which of the two dates) Mrs J Horne on behalf of “The Society for the Preservation of Markham and Little Francis” duly applied to the Defendant to register the Land as a town or village green. The application (“the 1997 Application”) was made under section 13 of the 1965 Act which provides as follows:
“13. Regulations under this Act shall provide for the amendment of registers maintained under this Act where ….
(b) any land becomes common land or a town or village green ….”
Two observations should be made in respect of this section. The first is that the word “becomes” in section 13(b) means “becomes on registration”: see Oxfordshire County Council v. Oxford City Council [2006] 2 AC 674 (“Oxford”). The second is that the required regulations were made in the form of the Commons Registration (New Land) Regulations 1969 which (amongst other things) prescribed the form of the application for registration.
The definition of “town and village green” contained in the 1965 Act (“the Unamended Definition”) was amended by the provisions of section 98 of the 2000 Act which substituted a new definition (“the Amended Definition”). The 2000 Act became law on the 30 th November 2000. Section 103 of the 2000 Act enacted that the provisions of section 98 should come into force on the 30 th January 2001.
There were a number of objectors to the 1997 Application which included the Curtis Family. The Defendant for the purpose of determining the 1997 Application formed a panel (“the Panel”) to hold a non-statutory inquiry. The Panel sat on the 7 th, 8 th and 11 th December 2000 during which period it heard oral evidence and submissions. The objectors were legally represented and the Panel was legally advised throughout. The hearing proceeded on the basis that the Amended Definition was applicable.
The Panel reached the unanimous decision (“the Decision”) that (applying the Amended Definition) the 1997 Application should be accepted. Their detailed reasons were set out in a 16 page letter from the Defendant to the parties. Accordingly the registration was then made pursuant to section 13 of the 1965 Act.
On the 29 th August 2001 Mr B.G. Curtis sought permission to bring judicial review proceedings challenging the Decision. The Defendant opposed the application on the ground that any challenge to the registration should have been brought by way of a Part 8 claim form in the Chancery Division seeking relief under section 14(b) of the 1965 Act (“Section 14”). On the 16 th October 2001 Stanley Burnton J refused permission. He held:
“The substance of the application is a disagreement with the weight attributed by the panel to the evidence before it and the findings of fact made by the Defendant's panel. That does not justify judicial review. There was no relevant error of law: the claimant accepts that the panel correctly set out the requirements of user as of right…. The applicability of section 14 of the Commons Registration is arguable.”
Mr Curtis renewed his application for permission and this was listed for hearing on the 3 rd December 2001. Mr Curtis however discontinued and by letter dated the 28 th November 2001 reserved the right to bring proceedings by way of Part 8 claim form claiming relief under Section 14.
During 2004 the Claimant, a property developer, acquired the Land from the Curtis Family and on the 18 th December 2005 commenced these proceedings. On the 18 th July 2006 Master Teverson made an order for the trial of the two preliminary issues.
Both the Claimant and the Defendant are and have at all times been most anxious that all and any interested parties should be encouraged (if they so wished) to participate in these proceedings, but so far to no effect. The rectification of the register sought and the subsequent development of the Land would or could seriously effect those who acquired the right to enjoy the Land for recreational purposes by reason of its registration as a town green in 2001. Mrs J Horne for personal reasons is unable to participate in the proceedings and the society which she represented has dissolved. In the circumstances at the suggestion of the parties I have directed that an advertisement be placed in a local newspaper informing readers of the proceedings and of the application and inviting them to make any representations to me in writing or orally in relation to the two preliminary issues without any risk of incurring any liability for costs, and I have stated that I will postpone giving judgment for 4 weeks to provide an opportunity for such representations to be made.
A considerable number of persons (including Mrs Horne) have responded by letter and by petitions to the invitation. The thrust of their representations has been directed to the extent and character of the past user of the Land and the unfairness of the challenge to the decision to register after the lapse of time since registration. They do not address the two legal issues which I am concerned with at this stage of the proceedings. The representations will be relevant and require detailed examination at a later stage of these proceedings when and if it is necessary to examine the extent and character of past user and the question whether it would be just to rectify the register, but cannot assist on the trial of the preliminary issues of law.
PRELIMINARY ISSUE I
The first preliminary issue is as follows:
“Whether the jurisdiction conferred by section 14(b) of the Commons Registration Act 1965 is by way of rehearing or appellate or on some other basis?”
Section 14(b) of the 1965 Act reads as follows:
“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 regulations made under this Act and … the court deems it just to rectify the register.”
It is common ground that any error established cannot be corrected in pursuance of regulations made under the 1965 Act, for no such regulations have been made.
The rival contentions of the parties as to the true construction of Section 14 focus on the evidential basis on which the court can decide that no amendment or a different amendment to the register ought to have been made. The Defendant contends that the court is required to decide this question in the same way as it would be required to decide an appeal by way of rehearing from the decision of the registration authority, that is to say on the evidence before the Panel but subject to the qualification that further evidence may be admitted if the “ Ladd v. Marshall test” is satisfied and in particular if the evidence in question could not reasonably have been adduced before the Panel. The Claimant contends that the hearing before the court is not an appeal and that the procedure to be adopted on appeals is accordingly inapplicable, and that the parties are subject to no constraint as to the issues of law and fact which they raise subject only to the exercise by the court as master of its own procedure of its case management powers and in particular its powers regarding the admission of evidence.
The issue raised is a matter of practical as well as legal importance. Section 14 will in due course be replaced by section 19 of the Commons Act 2006 (“the 2006 Act”). It may well be that a like issue will arise under the replacement section, although in that case the decision whether to rectify will have to be made by the registration authority itself rather than the court. In the circumstances I shall first consider the issue as a matter of principle and then see what guidance is afforded by the authorities. The issue is one of the construction...
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