Jonathan Adamson v Paddico (267) Ltd (1) and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Patten,Lord Justice Carnwath,Justice |
| Judgment Date | 07 March 2012 |
| Neutral Citation | [2012] EWCA Civ 262 |
| Date | 07 March 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2011/1893 |
[2012] EWCA Civ 262
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT CHANCERY DIVISION
MR JUSTICE VOS
HC10C00295
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lord Justice Sullivan
and
Lord Justice Patten
Case No: A3/2011/1893
Mr. Charles George QC, Mr. Philip Petchey and Mr. Ned Westaway (instructed by Public Law Solicitors) for the Appellant
Mr. George Laurence QC and Miss Ross Crail (instructed by DLA Piper UK LLP) for the First Respondent
Hearing dates: 6 th– 9 th February 2012
Introduction
This is an appeal from the Order dated 23 rd June 2011 of Vos J that the register of town and village greens maintained by the Second Respondent, Kirklees Metropolitan Borough Council ("the Council"), be amended by the deletion of the entry relating to Clayton Fields.
Clayton Fields is an area of grassland, approximately 6 1/2 acres in extent, located mainly in a part of north-west Huddersfield that is known as Edgerton. A small strip of land to the north of Clayton Brook is located in another part of Huddersfield that is known as Birkby.
The relevant provisions of the Commons Registration Act 1965 ("the 1965 Act") are as follows:
"1- (1) There shall be registered, in accordance with the provisions of this Act ….
(a) Land in England or Wales which is common land or a town or village green; …
(2) After the end of such period, not being less than three years from the commencement of this Act, as the Minister may by order determine —
(a) No land capable of being registered under this Act shall be deemed to be common land or a town or village green unless it is so registered; ….."
13. Regulations under this Act shall provide for the amendment of the registers maintained under this Act where –
(a) Any land registered under this Act ceases to be common land or a town or village green; or
(b) any land becomes common land or a town or village green;
14. 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 making such an objection; or
(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 in either case, the court deems it just to rectify the register.
22. (1) In this Act, unless the context otherwise requires,—"town or village green" means 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."
I have added [a] –[c] for ease of reference. The three types of green are commonly referred to as Class a, b and c greens.
Whether the Council's decision to amend the register by the inclusion of Clayton Fields was correct must be tested by reference to the provisions of the 1965 Act as enacted (paragraph 3 above). With effect from the 30 th January 2001 section 22 was amended by section 98 of the Countryside and Rights of Way Act 2000, as follows, [i] and [ii] are added:
"(2) In subsection (1), in the definition of "town or village green" for the words after "lawful sports and pastimes" there is substituted or which falls within subsection (1A) of this section."
(3) After that subsection there is inserted –
"(1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of [i] any locality, or of [ii] 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 to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions."
Thus, there are now two limbs to class c village greens under subsection (1A).
Factual Background
The factual background is set out in great detail in the judgment of Vos J [2011] EWHC 1606 (Ch). For present purposes, a brief summary will suffice, although it will be necessary to examine the chronology in a little more detail when considering the Appellant's challenge to the judge's conclusion that it was just to rectify the register.
The application to register Clayton Fields as a class c town or village green under section 13 of the 1965 Act was made on 9 th December 1996. On 14 th April 1997 the Council held an oral hearing before its Policy (General Purposes) (Executive) Sub-Committee ("the Committee") which had delegated authority to determine the application.
The applicants for registration had relied upon user by the inhabitants of Edgerton and Birkby. At the hearing, Counsel representing the principal landowner, Geo. H. Haigh & Co Ltd. ("Haigh"), submitted that the application should be rejected because those using the land for lawful sports and pastimes had to come from a single locality which was an administrative area recognised by law, and Edgerton and Birkby were not such a locality.
Mr Hardy, the Secretary of the Clayton Fields Action Group ("CFAG"), who was one of the applicants for registration, represented CFAG before the Committee. He contended that "Birkby and Edgerton are well defined localities which have existed in Huddersfield for a very long time…. we are residents from there; it is a community." After a short adjournment the Chairman of the Committee said:
"The decision of this committee is that the application for the registration of land at Clayton Fields, Edgerton under the Commons Registration Act 1965 section 13 is granted. That is the decision of this committee. Thank you."
On the 14 th April 1997 Clayton Fields was added to the Register under register unit number KMC/VG2. The entry in the register said "Registration confirmed and finalised. Decision of Reg. Authority 14.4.97."
In May 1997 Haigh commenced proceedings under section 14 for the rectification of the register. In April 2000 those proceedings were automatically stayed for want of prosecution under CPR 51 PD 19(1). In October 2004 Haigh transferred those parts (the majority) of Clayton Fields which it owned to Paddico (267) Ltd. ("Paddico"), the First Respondent. Paddico was registered as freehold owner on 15 th March 2005, and applied on 19 th December 2008 to lift the stay. Its application was refused by a Deputy Master, and an application for permission to appeal against the Deputy Master's decision was refused by Sales J on 24 th March 2010. On 28 th January 2010 Paddico issued a new claim to rectify the register under section 14. This was the claim considered by Vos J. On 21 st June 2010 notice of discontinuance was filed in respect of the 1997 claim.
The judgment of Vos J
Before Vos J, Mr. Laurence QC submitted on behalf of Paddico that the register should not have been amended so as to add Clayton Fields as a town or village green because Edgerton and Birkby were not a "locality" for the purpose of Class (c) in section 22(1). CFAG did not have legal representation before Vos J. It was represented by its Chairman and Secretary, Mr. Magee and Mr. Hardy. They contended that there had been no error in the amendment to the register, that even if there had been an error, there were other areas which were a locality upon which registration could have been based (the Edgerton Conservation Area and the Parishes of Holy Trinity and St John were suggested), and that in any event, primarily because of delay, it would not be just to rectify the register.
Vos J said in paragraph 5 of his judgment that there were three basic questions he had to decide:
"(i) Whether the Land ought or ought not to have been registered as a TVG by the Council for the reasons it relied upon on 14 th April 1997?
(ii) If the Land ought not to have been registered, whether its registration can be supported on any of the alternative bases for which the Defendants contend?
(iii) Whether the court deems it just to rectify the register within the requirement of section 14 of the 1965 Act?"
In answer to question (i) Vos J concluded in paragraph 101 that:
"In my judgment, on the materials available to the Committee in 1997, it was not justified in making the registration for one simple reason, namely the proper legal meaning of the words "any locality" in the class c definition in section 22(1). Despite the views that I expressed earlier as to the meaning of the term "locality" viewed in 1997, it has, I think, now been accepted at too high a level for me to gainsay that the term "any locality" is singular in the class c definition: "on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years". I am bound to say that I would have construed the words "any locality" in the class c definition, in the original section 22(1) and in both limbs of section 22(1A), had I been starting with a clean sheet of paper, as meaning "locality or localities" in the...
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