Leeds Group Plc v Leeds City Council (No 2)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Sullivan,Lord Justice Tomlinson,Lady Justice Arden
Judgment Date02 December 2011
Neutral Citation[2011] EWCA Civ 1447
Date02 December 2011
Docket NumberCase No: A3/2010/1194

[2011] EWCA Civ 1447

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT

CHANCERY DIVISION

HH JUDGE BEHRENS

CO/4193/2007

Royal Courts of Justice

Strand, London, WC2A 2LL

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

and

Secretary of State for Environment,Food and Rural Affairs
First Interested Party

and

Douglas Jones
Second Interested Party

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

Ms Clare Parry (Instructed by Leeds City Council) for the Respondent

Mr David Forsdick (instructed by Treasury Solicitor) for the First Interested Party

Mr Robert Williams (instructed by Zermansky and Partners) for the Second Interested Party

Hearing dates: 25 & 26 October 2011

Approved Judgment

Lord Justice Sullivan

Introduction

1

The background to the resumed hearing of this appeal is set out in our judgments reported at [2011] 2 WLR 1010, [2010] EWCA Civ 1438. After the conclusion in November 2010 of the hearing of the original grounds of appeal we gave Mr. Laurence permission to raise a new ground of appeal: that sections 98 and 103(2) of the Countryside and Rights of Way Act 2000 ("the 2000 Act") should be construed so as to postpone the operation of the amended definition of town or village green (TVG) to 30 November 2020 in any case (such as the present) where an applicant needs to rely, for the purposes of his application to register land as a TVG, on user which up to 29 th January 2001 would have been, as a matter of law, incapable of supporting such an application (Ground 4A, "Retrospectivity").

2

We directed that the appeal on this new ground be heard on a date to be fixed: see paragraphs 61 and 62 of the judgment of Arden LJ. Mr. Laurence subsequently applied for permission to appeal on a second new ground: that an interpretation of section 98 giving it a retrospective effect would breach the Appellant's right to the peaceful enjoyment of its land at Yeadon Banks contrary to Article 1 of The First Protocol ("A1P1") to the European Convention on Human Rights (Ground 4B "Human Rights").

3

There were difficulties in arranging the resumed hearing. Lack of funds had prevented the applicant for registration, Mr Jones, the Chairman of KEYBAG, from playing any part in the hearing in November 2010. The registration authority, Leeds City Council, had responded to the Appellant's original grounds of appeal. However, the City Council was not prepared to respond to the new grounds, for financial reasons. At a hearing on the 10 th March 2011 we indicated that the Court would be much assisted if the Secretary of State for Environment, Food and Rural Affairs was prepared to appear at the resumed hearing: see the judgment of Arden LJ [2011] EWCA Civ 313.

4

The Secretary of State applied for permission to be joined as an Interested Party. We granted the application. At the resumed hearing the Secretary of State was represented by Mr. David Forsdick. His submissions were of great assistance to the Court. Shortly before the resumed hearing Mr. Jones, having secured funding, applied to be joined as an Interested Party. We granted his application. Mr. Jones was represented by Mr. Williams, who largely adopted Mr. Forsdick's submissions, but helpfully amplified them in a number of respects. Ms. Parry appeared on behalf of the City Council, but, consistently with the City Council's position (see para. 3 above), did not make any submissions.

The 2000 Act

5

The relevant parts of the statutory scheme are summarised in paragraphs 2–4 of my earlier judgment. The definition of TVG in section 22(1) of the Commons Registration Act 1965 ("the 1965 Act") as originally enacted is set out in paragraph 2. For convenience I set it out below: ([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"

6

In order to consider grounds 4A and 4B it is necessary to set out the full text of sections 98 and 103 of the 2000 Act:

"98. – (1) Section 22 of the Commons Registration Act 1965 (interpretation) is amended as follows.

(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 fall 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 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 to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.

(1B) If regulations made for the purposes of paragraph (b) of subsection (1A) of this section provide for the period mentioned in that paragraph to come to an end unless prescribed steps are taken, the regulations may also require registration authorities to make available in accordance with the regulations, on payment of any prescribed fee, information relating to the taking of any such steps."

"103. – (1) The following provisions of this Act come into force on the day on which this Act is passed –

Section 81(2) and (3),

this section, and

section 104.

(2) The following provisions of this Act come into force at the end of the period of two months beginning with the day on which this Act is passed –

section 1 and Schedule 1,

sections 3 to 11 and Schedule 3,

sections 15 to 17,

section 19,

Chapters II and III of Part I,

sections 40 to 45

section 52

section 58 and 59,

sections 64 to 67 and Schedule 7 (apart from paragraphs 6 and 7 of that Schedule),

Part III (apart from section 81(2) and (3)), and Schedules 8, 9, 10, 11 and 12 and Parts III and IV of the Schedule 16.

Section 98.

(3) The remaining provisions of this Act come into force on such day as the Secretary of State (as respects England) or the National Assembly for Wales (as respects Wales) may by order made by statutory instrument appoint.

(4) Different days may be appointed under subsection (3) for different purposes or different areas.

(5) An order under subsection (3) may contain such transitional provisions or savings (including provisions modifying the effect of any enactment) as appear to the Secretary of State or the National Assembly for Wales (as the case may be) to be necessary or expedient in connection with any provision brought into force by the order."

7

The 2000 Act was passed on the 30 th November 2000. Section 98 therefore came into force on 30 th January 2001: see sub-section 103(2). The application to register Yeadon Banks as a TVG was made on 16 th July 2004 (para. 5 of my earlier judgment), so a twenty year period prior to, and continuing until, the date of the application would run from 16 th July 1984 – 16 th July 2004.

Ground 4A

8

At the heart of Mr. Laurence's submission was the fact that under section 22(1) of the 1965 Act as enacted, and prior to the coming into force of section 98 of the 2000 Act, an application to register land as a TVG could not be based on user, for however long a period, by the inhabitants of a neighbourhood. The landowner could permit such user, confident in the knowledge that it was incapable of "ripening into a legal right" (to have the land registered as a TVG).

9

In a nutshell, Mr. Laurence submitted that it would have been "grotesquely unfair" for Parliament to have recharacterised previously "harmless" acts of user by the inhabitants of a neighbourhood (harmless to the landowner because, as a matter of law, they were incapable of leading to the registration of his land as a TVG) as "harmful" (because they were deemed, as from 30 th January 2001, to be capable of supporting an application to register the land as a TVG). It was no answer to say that the landowner had acquiesced in the user for the previous 20 years. During the period when the user had no legal potential to harm the landowner he had had no reason to seek to prevent it.

10

The potential unfairness of what Mr. Laurence submitted was a "retrospective" construction of section 98 was illustrated by his "Scenario A". A small estate of 20 houses is built in 1980. By January 1981 all of the houses are occupied. By the end of January 1981 a significant number of the householders begin, and thereafter continue, to use an adjoining piece of land for recreation. The smallest administrative area known to the law in which the land is situated (the "locality" for the purpose of a Class C TVG under the 1965 Act as enacted) is an ecclesiastical parish of 20,000 houses. The estate is situated in one corner of the parish. A claim to register the land as a Class C TVG under the original definition will obviously fail. So advised, the landowner, who may live in the estate and know his neighbours, does not object to their use. On 30 th January 2001 an application is made to register the land as a TVG, and the landowner discovers that the, legally innocuous, user by his neighbours over the previous 20 years has suddenly hardened into a legal right to have the land registered as a TVG.

11

Mr. Laurence submitted that such a result was so unfair that Parliament...

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