Betterment Properties (Weymouth) Ltd v Dorset County Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lloyd,Lord Justice Rix,Lord Justice Laws,Lord Justice Patten,Lord Justice Sullivan,Lord Justice Carnwath,Justice
Judgment Date07 Mar 2012
Neutral Citation[2012] EWCA Civ 250,[2008] EWCA Civ 22
Docket NumberCase No: A3/2010/2971,Case No: 2007/0876

[2008] EWCA Civ 22






Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Laws

Lord Justice Rix and

Lord Justice Lloyd

Case No: 2007/0876

[2007] EWHC 365 (Ch)

Betterment Properties (weymouth) Ltd
Claimant Respondent
Dorset County Council
Defendant Appellant

John Hobson Q.C. and Philip Coppel (instructed by Sharpe Pritchard) for the Appellant

George Laurence Q.C. and William Webster (instructed by Pengillys) for the Respondent

Hearing date: 18 December 2007

Lord Justice Lloyd

This appeal is about town and village greens: specifically, about the process by which land which has been registered as a town or village green under the Commons Registration Act 1965 may be removed from the register. The land in question extends to some 46.2 acres in Weymouth. It was registered as a town or village green in 2001, following an inquiry presided over by three members of Dorset County Council, which is the registration authority under the 1965 Act. Betterment Properties (Weymouth) Ltd, the claimant, which acquired the land in 2004, seeks to have it removed from the register, and applied to the court under section 14 of the 1965 Act for that purpose. Two preliminary issues were identified, the answers to which affect the nature of the process and the question to be resolved at the eventual hearing. These were determined in favour of the claimant by Lightman J in a judgment given on 2 March 2007. With permission granted by the judge, Dorset County Council appeals against both rulings.


The two points can be summarised thus.

i) Where (as in the present case) land has been added to the register of town and village greens under section 13 of the 1965 Act, section 14 provides that the High Court may order the register to be amended if, relevantly, it appears to the court that no amendment or a different amendment ought to have been made, and the court deems it just to rectify the register. Here the land was added to the register in 2001; the application under section 14 was made in 2005. The question is as to the nature of the hearing before the High Court under this section: is the jurisdiction of the court by way of a rehearing, or appellate, or is it on some other basis and if so what? Plainly, if that can be settled before the hearing is undertaken, a good deal of potential for confusion and waste of time and energy will be avoided.

ii) The second point is this. The 1965 Act contained a definition of town or village green, on the basis of which the original application under section 13 was made in 1997. Relevantly it required 20 years' use of the land by a section of the public defined in a particular way, but the 20 years need not have been continuous until the application for registration. By section 98 of the Countryside and Rights of Way Act 2000 that definition was amended, so as to change the definition of the section of the public whose use was necessary, but to require the use to continue up to the date of the application. The amended section came into force on 30 January 2001, two months after the passing of the Act itself, after the hearing of the inquiry under section 13 but before the decision had been made. Should the amended or the original definition have applied for the purposes of the application under section 13? In practice the amended definition was applied. If the original definition should have been applied, the evidence placed before the inquiry will need to be reconsidered in a different light.


The judge held that the hearing was not akin to judicial review, and was not really like an appeal either, that the evidence before the original inquiry should be considered, but that parties could adduce further relevant evidence if they wished. He also held that the original definition of town or village green should have been applied.


The original applicant under section 13 was not able, for personal reasons, to take part in these proceedings, nor has any other person who is interested as a local owner or occupier sought to resist the Claimant's proceedings. Accordingly it is left to Dorset County Council, as registration authority, to oppose the application, and it is the appellant in this court.

The facts


Until 2004 the land in question belonged to members of the Curtis family. In 1994 Mrs Joan Horne made a first application under section 13 to register the land as a town or village green, but that did not proceed. In 1997 she applied again, on behalf of the “Society for the Preservation of Little Francis and Markham”. The application was held in abeyance for some time, pending the resolution of other proceedings, ultimately decided by the House of Lords in June 1999: R (Sunningwell Parish Council) v Oxfordshire County Council [2000] 1 AC 335, which I will call Sunningwell. This case decided a number of important issues about town and village greens.


After that decision, Mrs Horne's application was taken forward. Dorset County Council decided to hold a non-statutory inquiry, presided over by a panel of three councillors, and a hearing took place on 7, 8 and 11 December 2000. Many witnesses were called, and statements were read from some who were unable to attend. Mrs Horne's application was put forward on the basis that relevant use of the land had taken place for 20 years from 1 August 1970, by local inhabitants. Under the amended definition, it would be necessary for that use to have continued at least until the date of the application in 1997. It seems that, for the most part, use had in fact continued until the time of the hearing, though there was an issue as to whether that use had been as of right since 1995 or thereabouts.


The decision of the panel was announced in a letter from the Council dated 5 June 2001, which recorded that the panel accepted the evidence of use over 31 years from 1970 to 2001, on the part of a significant number of inhabitants of Wyke Regis, said to be a neighbourhood forming part of the locality of the borough of Weymouth and Portland.


Later in 2001 a member of the Curtis family sought to challenge the decision by judicial review. Permission to apply was refused, and this was not pursued, reserving the right to apply under section 14. In due course the Claimant acquired the land in 2004, and started these proceedings in December 2005.

The 1965 Act


I must set out certain provisions of the 1965 Act, starting with section 13.

“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 ….”


The regulations are the Commons Registration (New Land) Regulations 1969. It was held in Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 (which I will call Oxfordshire v Oxford) that land “becomes” a town or village green on registration as such, not on the completion of the necessary period of use.


Section 14 of the Act, directly in issue on the first of the questions before us, is 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.”


No regulations were ever made under which an error could be corrected, so that part of the section is irrelevant. Given that the register has been amended to show a town or village green under section 13, what is required for an application under section 14 is

i) that it should appear that no amendment or a different amendment ought to have been made, and

ii) that it be just to rectify the register so as to cancel the amendment.


The definition of town or village green in section 22 was originally as follows:

“(1) In this Act, unless the context otherwise requires


'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.”


Only the third element of the definition is relevant to the present case. It was held in Sunningwell that “sports and pastimes” are not two distinct activities, both of which must have been pursued, but a composite phrase, so that it is sufficient if an activity which can be characterised as a sport or a pastime has been indulged in on the land for the necessary period.


The amended definition, taking effect from 30 January 2001, is as follows:

“(1) In this Act, unless the context otherwise requires


'town or village green' means land which has been allotted by or under any Act for 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 which falls within subsection (1A) of this section.

(1A) Land falls within this subsection if it is land on which for not less than 20 years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either –

(a) continue to do so, or

(b) have ceased...

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