Leeds Group Plc v Leeds City Council

JurisdictionEngland & Wales
JudgeLord Justice Sullivan,Lord Justice Tomlinson,Lady Justice Arden
Judgment Date20 December 2010
Neutral Citation[2010] EWCA Civ 1438
Docket NumberCase No: A3/2010/1194
CourtCourt of Appeal (Civil Division)
Date20 December 2010

[2010] EWCA Civ 1438

[2010] EWHC 810 (Ch)

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

His Honour Judge Behrens

Before : Lady Justice Arden

Lord Justice Sullivan

and

Lord Justice Tomlinson

Case No: A3/2010/1194

Between
Leeds Group Plc
Appellant
and
Leeds City Council
Respondent

Mr George Laurence QC & Ms Jane Evans-Gordon (instructed by DLA Piper Uk LLP) for the Appellant

Morag Ellis QC (instructed by Leeds City Council) for the Respondent

Hearing dates : Wednesday/Thursday, 24th/25th November 2010

Lord Justice Sullivan

Lord Justice Sullivan :

Introduction

1

This is an appeal against the Order dated 7 th May 2010 of His Honour Judge Behrens sitting as a Judge of the High Court dismissing two claims by the Appellant, one under section 14 of the Commons Registration Act 1965(“the 1965 Act”), the other for judicial review. In both of those claims the Appellant challenged the registration by the Respondent of land known as Yeadon Banks on the outskirts of Leeds as a town or village green (“TVG”) under the 1965 Act, as amended by the Countryside and Rights of Way Act 2000 (“the 2000 Act”). Part of Yeadon Banks, some 5 1/2 acres, is owned by the Appellant (“the Leeds Land”), the remainder is owned by the Respondent (“the Council Land”).

The definition of a TVG

2

Section 22(1) of the 1965 Act as enacted defined “town or village green” for the purposes of the Act, as follows ([a][b] and [c] added):

“?town or village green’ means [a] land 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.”

The three categories of TVG are usually referred to as Class A, Class B or Class C TVGs. We are concerned with a Class C TVG.

3

The definition in section 22(1) was amended with effect from 30 th January 2001 by section 98 of the 2000 Act to substitute for the words after “lawful sports and pastimes”, the words “or which falls within subsection (1A) of this section”.

So far as material, subsection (1A) provides ([i] and [ii] added):

“(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)….”

4

Thus, there are two limbs to Class C village greens under subsection (1A). Under the first limb reliance may be placed on user by a significant number of the inhabitants of any locality. Under the second limb reliance may be placed upon user by a significant number of the inhabitants of any neighbourhood within a locality. In the present case we are concerned with the second limb. Section 22 has been repealed by the Commons Act 2006, but it is common ground that the 2006 Act is irrelevant for the purposes of this case. The critical enactment is subsection 22(1A) of the 1965 Act as amended by the 2000 Act. It should be noted that all of the definitions in section 22(1) are to be applied “unless the context otherwise requires”.

Factual Background

5

The factual background is set out in some detail in the judgment of HH Judge Behrens [2010] EWHC 810 (Ch). For present purposes the following summary will suffice. A resident in Yeadon, Mr Jones, the Chairman of a group known as “KEYBAG”, Keep Yeadon Banks Green, applied on 16 th July 2004 to register Yeadon Banks as a Class C TVG. The Appellant objected to the application. The Respondent appointed Mr Alun Alesbury, a barrister with considerable expertise in the law relating to Commons Registration (“the Inspector”), to hold a non-statutory public inquiry into the issues raised by the contested application. The inquiry was held on 7 th and 8 th November 2006, and was followed by a formal inspection of Yeadon Banks on the 9 th November.

6

In his Report dated 20 th December 2006 the Inspector recommended that the Respondent should amend the Register of Town and Village Greens by the addition of Yeadon Banks. As the judge said, the Report is a detailed and lengthy document. In paragraphs 30 – 44 of the judgment the Judge referred to those passages in the Report in which the Inspector dealt with the issues of “neighbourhood” and “locality”. It is unnecessary to repeat all of those passages.

7

It is sufficient to note that in respect of the “neighbourhood” issue the Inspector concluded that:

(1) Two areas, described in the evidence before him and known as “The Haws” and “Banksfield”, each qualified as a neighbourhood for the purposes of subsection 22(1A) (para.13.35).

(2) Alternatively, The Haws and Banksfield taken together qualified as a neighbourhood for that purpose (para.13.42).

“Thus my conclusion on the matter of ‘neighbourhood’ is that Banksfield and The Haws may quite reasonably, and correctly, be regarded either as two adjacent neighbourhoods, or as one overall neighbourhood. On either basis I conclude that they meet the test of ‘neighbourhood within a locality’ contained in Section 22(1A).”

8

So far as “locality” is concerned, the Inspector concluded that the neighbourhood/s were within a locality for the purposes of section 22(1A) because either:

(1) Yeadon, which was a unified civil parish from the early 18 th century until 1937, and had its own Urban District Council from 1895 to 1937, after which as a result of successive local government reorganisations it was for the most part absorbed into an enlarged City of Leeds (para.13.19); or

(2) the City of Leeds (para.13.21); or

(3) the ecclesiastical parish of St. Andrew, Yeadon (para.13.22);

was such a locality.

9

On the question of user, the Inspector's conclusion was:

“13.66 …. that the Objectors’ argument that there was insufficient use made of the land to have put a reasonably observant landowner on notice of the use rights being asserted is simply untenable. The evidence strongly suggests ample and open recreational use being made of the land during the whole of the 20 year period I am concerned with, and indeed for considerably longer than that.”

Having said that the authorities made it clear that the issue was very much a matter of impression, the Inspector said that in his view:

“13.68 …. the evidence in this case abundantly supports the conclusion that a significant number of the local inhabitants have used the land for lawful sports and pastimes.”

10

The Inspector's Conclusion and Recommendation were as follows:

“14.1 I conclude that the Applicant has proved his case that the whole of the land of Yeadon Banks (i.e. the parts owned both by the City Council and Leeds Group PLC) has been used for not less than 20 years prior to the date of his application in July 2004, by a significant number of the inhabitants of the Banksfield/The Haws neighbourhood of Yeadon, as of right, for lawful sports and pastimes; and that this use continued through and beyond July 2004.14.2 This is not a conclusion reached on a narrow balance of conflicting evidence. My advice would be that the Applicant has in this instance clearly established his case on the evidence beyond any reasonable doubt.

14.3 Accordingly I recommend that the Register of Town and Village Greens maintained by the City Council should be amended by the addition to it of the land at Yeadon Banks shown on the map accompanying the Applicant's application.”

11

The members of the Respondent's Plans Panel (West) were advised “to receive and consider the Inspector's Report” and to decide whether Yeadon Banks satisfied the definition set out in section 22(1A), the relevant part of which was set out in the report of the Respondent's Director of Legal and Democratic Services. Having done so, the members resolved that the report be noted, that Yeadon Banks did satisfy the definition set out in section 22(1A), and that the Officers be authorised to amend the register accordingly.

The Judgment

12

Before the Judge there was no challenge by the Appellant to the Inspector's conclusion that a significant number of local inhabitants had used the land for lawful sports and pastimes (para.21). It was submitted on behalf of the Appellant that the Inspector had erred in concluding that for the purposes of subsection 22(1A):—

(a) “Neighbourhood” included “neighbourhoods”.

(b) The Haws and Banksfield together formed one neighbourhood.

(c) If they did not comprise one neighbourhood, The Haws and Banksfield were two separate neighbourhoods.

(d) Yeadon, and if not Yeadon;

(e) Leeds, and if not Leeds;

(f) The ecclesiastical parish of St Andrew, Yeadon, was a locality.

13

It was also submitted that no reasonable owner could reasonably have been expected, before the coming into force of the new definition of a class C TVG on 30 th January 2001, to resist the recreational use of Yeadon Banks by those living nearby in The Haws and Banksfield because such a use was incapable, as a matter of law, of giving rise to a claim to register the land as a TVG (because the users originated not from a locality, but from a neighbourhood/s). This submission was referred to in the judgment as the “As of Right Claim”.

14

The Judge concluded that:—

(a) There was no logical reason why there could not be two or more neighbourhoods for the purposes of subsection 22(1A) (paras.92–97).

(b) The Haws and Banksfield did not form one composite neighbourhood (para.106).

(c) Each...

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