Leeds Group Plc v Leeds City Council
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 2010 |
| Neutral Citation | [2010] EWHC 810 (Ch) |
| Docket Number | Case No: 9LS530895 and CO/4193/2007 |
| Court | Chancery Division |
| Date | 21 April 2010 |
[2010] EWHC 810 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
Leeds Combined Court Centre
Oxford Row
Leeds LS1 3BG
Before: His Honour Judge John Behrens sitting as a Judge of the High Court
Case No: 9LS530895 and CO/4193/2007
George Laurence QC and Jane Evans-Gordon (instructed by DLA Piper UK LLP of Princes Exchange, Prices Square Leeds LS1 4BY) for the Claimant
Morag Ellis QC (instructed by Karen Blackmore, Solicitor, Leeds City Council, Civic Hall Leeds LS1 1UR) for the Defendant
Hearing dates: 29 th, 30 th and 31 st March 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 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.
BEFORE HIS HONOUR JUDGE BEHRENS SITTING AS A JUDGE OF THE HIGH COURT
Judge Behrens:
Introduction
This claim is concerned with a piece of land known as Yeadon Banks, Yeadon on the outskirts of Leeds. Part of Yeadon Banks, some 512 acres, (“the Leeds Land”) is owned by the Claimant and is registered at HM Land Registry under Title Number WYK 695688. The remainder of Yeadon Banks (“the Council Land”) is owned by the Defendant.
Mr Douglas Jones (“Mr Jones”), who lives in Haw Lane, Yeadon, is the Chairman of a group known as Keep Yeadon Banks Green (“KEYBAG”). By an application notice dated 16 th July 2004 Mr Jones made an application to register Yeadon Banks as a Class C town or village green (“TVG”) under the relevant statute. In the application Mr Jones described himself as acting on behalf of the residents of the areas known locally as “The Haws” and “Banksfield”. He described the locality as being “Yeadon”. The application was supported by completed evidence questionnaires from 82 individuals. It was made to the Defendant as the relevant registration authority. Thus the Defendant was both the relevant registration authority and also the owner of part of the land (the Council Land) that was subject to the application.
The application was made under section 13(b) of the Commons Registration Act 1965 (“the 1965 Act”) as amended by the Countryside and Rights of Way Act 2000 (“the 2000 Act”) and governed by the Commons Registration (New Land) Regulations 1969 (“the 1969 Regulations”). As will appear later in this judgment there is considerable judicial authority (much at the highest level) on the requirements necessary to establish a TVG under the 1965 Act both before and after the amendments in the 2000 Act.
The Claimant as owner of the Leeds Land objected to the application on a number of grounds. The Defendant, on the other hand, as owner of the Council Land made it clear that it did not object to the registration.
As is common in cases such as this the Defendant decided to hold a non statutory public inquiry into the issues raised in the application. Accordingly it appointed a senior barrister Mr Alun Alesbury (“the Inspector”), for that purpose. The practice of holding such inquiries to resolve cases which are not suitable for determination on the documents has been noted with approval by the Courts: see R v Suffolk County Council ex p Steed (1995) 70 P & C R 487, 500 – 501.
The Inquiry was held on 7 th and 8 th November 2006 and was followed by a formal inspection of Yeadon Banks on 9 th November 2006. At the Inquiry Mr Jones represented himself and called 7 local residents in support of the application. The Claimant was represented by Solicitors and Counsel (Mrs Evans-Gordon) and called no evidence. The Inspector produced a report on 20 th December 2006. In it he recommended the registration of the whole of Yeadon Banks as a TVG. It will be necessary to consider the report and the reasons for the recommendation later in the judgment. On 22 nd February 2007 the Defendant decided to accept the recommendation in the report. Accordingly on that date the register of town and village greens kept by the Defendant was amended by the addition of the whole of Yeadon Banks.
It is common ground between the parties (though the statutory reasoning is tortuous) that where an amendment to the register has been made under section 13(b) of the 1965 Act it can be challenged either by way of an application under section 14 of the 1965 Act in the Chancery Division or by way of an application for judicial review.
The Claimant has adopted both methods of challenge. On 22 nd May 2007 the Judicial Review Claim form was issued. The Defendant's Acknowledgment of Service was dated 15 th June 2007. Permission was granted on 11 th October 2007 and the matter was transferred to the Chancery Division on 15 th January 2009. Meanwhile on 28 th July 2008 the Claimant issued a Part 8 claim seeking relief under section 14 of the 1965 Act. Following a Defence filed on 23 rd October 2008 the claim was transferred first to the Administrative Court then back to the Chancery Division. It is important to note that the Defence and the Acknowledgment of Service were filed by the Defendant in its capacity as the registration authority. In such capacity it has sought to uphold the advice of the Inspector on the material before him. It has taken a neutral stance to additional material and additional evidence contained in the section 14 proceedings. It has taken no part in the proceedings in its capacity as owner of the Council Land.
On 9 th October 2009 Roth J gave directions in both actions. He permitted the filing of further evidence in the section 14 proceedings and permitted the Claimant to rely on a witness statement from an expert – Ms Susan Ansbro – in the section 14 proceedings. He transferred both actions to Leeds and directed trial by a judge authorised to sit in both the Chancery and Administrative Court jurisdictions. He directed that the section 14 proceedings be tried first. It is in fact agreed that if the section 14 proceedings succeed there will be no need to pursue the judicial review proceedings. On the other hand if the section 14 proceedings fail then so will the judicial review proceedings. In effect, save in respect of costs, the outcome of the section 14 proceedings will be determinative of the result of the case.
Mr Jones, the Applicant for the amendment to the register, was made an interested party to the judicial review proceedings and kept fully informed of the section 14 proceedings. It was made clear to him at all times that he could be joined to the section 14 proceedings if he wished. He is a retired widower, 78 years old and without any significant means. He was thus not in a financial position to fund any litigation and furthermore until a late stage of the proceedings made it clear that he did not wish to be a party.
He did, however, have some financial assistance. The Claimant had provided him with £1,000 to enable him to obtain Counsel's opinion. I have not seen that opinion but have been told that he was advised that there was a better than 50% chance of resisting the claims. The Claimant also offered not to seek an order for costs against Mr Jones if it was successful provided he made a reciprocal offer to it.
The Defendant offered limited financial assistance to Mr Jones in order to enable him to make an application to be joined and (more importantly) for a full protective costs order. In February 2010 solicitors on behalf of Mr Jones duly made the application. Unfortunately the application was issued in London whereas the proceedings had been transferred to Leeds. In the result there was an inevitable delay before the application came to the attention of anyone in Leeds. It was not in fact possible to list it until 26 th March 2010 (one working day before the scheduled date of the trial). The matter came before Mr Andrew Sutcliffe QC and was refused on two main grounds. First Mr Sutcliffe QC was not satisfied that the grounds for a protective costs order in accordance with R (Corner House Research) v Secretary of State [2005] 1 WLR 2600 were made out; second if he had acceded to the application an adjournment of the trial would have been inevitable with significant wasted costs. It was not clear what evidence Mr Jones wished to adduce and KEYBAG would have some protection as a result of the submissions of Miss Ellis QC on behalf of the Defendant. In his view justice and fairness demanded that the application be refused.
In the result Mr Jones was not a party to the hearing and not represented before me. He did however attend Court on each day of the hearing and was present at the view on the second day. Indeed he provided valuable assistance by providing me with a pair of wellington boots in order to carry out the view without getting my feet wet. I am most grateful to him.
The issues
Before considering the material in more detail it is worth summarising the issues to be determined.
The definition of a TVG.
The relevant definition of a TVG is contained in section 22(1) of the 1965 Act. That section was amended with effect from 30 th January 2001 by virtue of sections 98 and 103(2) of the 2000 Act. Section 22 has since been repealed by the Commons Act 2006 (which provides for land to be registered as a green under the conditions stated in section 15), but it is common ground that the 2006 Act is irrelevant for the purpose of this case.
In the light of the submissions that have been made it is convenient to set out both the original and the amended version
The original definition was in the following terms:
‘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...
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