Paddico (267) Ltd v (1) Kirklees Metropolitan Council and Others

JurisdictionEngland & Wales
CourtChancery Division
JudgeMr Justice Vos
Judgment Date23 Jun 2011
Neutral Citation[2011] EWHC 1606 (Ch)
Docket NumberCase No: HC10C00295

[2011] EWHC 1606 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Vos

Case No: HC10C00295

Between:
Paddico (267) Limited
Claimant
and
(1) Kirklees Metropolitan Council
(2) William John Magee
(3) Thomas Michael Courtney Hardy (the Second and Third Defendants Being Sued for and on Behalf of Clayton Fields Action Group)
Defendants

Mr George Laurence Q.C. and Ms Ross Crail (instructed by DLA Piper UK LLP) appeared for Paddico (267) Limited

The Kirklees Metropolitan Council did not appear and was not represented

Mr William Magee and Mr Thomas Hardy appeared in person

Hearing dates: 25 th, 26 th, 27 th May, 7 th and 13 th June 2011

Mr Justice Vos

Introduction

1

Paddico (267) Limited ("Paddico" or the "Claimant") seeks an order that the register of town and village greens (the "Register") maintained by Kirklees Metropolitan Council (the "Council") be rectified by the removal from it of the entry relating to an area of grassland amounting to some 6 1/2 acres in the otherwise densely built up Edgerton district of north west Huddersfield known as Clayton Fields (the "Land" or "Clayton Fields"). The application is made pursuant to section 14 of the Commons Registration Act 1965 (the "1965 Act").

2

Mr William John Magee ("Mr Magee") and Mr Thomas Michael Courtney Hardy ("Mr Hardy") (together "Messrs Magee and Hardy" or the "Defendants") have appeared in person to oppose the application in their capacities as respectively Chairman and Secretary of the Clayton Fields Action Group (the "CFAG"). The Council declined to take an active part in the proceedings, and neither attended nor was represented at the hearing. I was told that it was 'neutral' and that it would abide by any order the court might make.

3

In the broadest of outline, Paddico is a development company, which acquired Clayton Fields in October 2004 from George Haigh & Company Limited ("George Haigh Ltd."), some 7 1/2 years after it had been registered as a town or village green ("TVG") under the 1965 Act, as a speculative investment. It hopes, by this application, to remove the registration of the Land and thereby to free it up for development purposes. The CFAG, on the other hand, wishes to preserve the registration so that Clayton Fields can continue to be used by local residents for sports and leisure pastimes, as it has been for many years past.

4

The law of TVG registration is by no means straightforward and has been the subject of numerous recent authoritative decisions. I have been ably assisted in understanding the latest legal position by the submissions of Mr George Laurence Q.C. and Ms Ross Crail. They and their instructing solicitors, DLA Piper UK LLP have, in the best traditions of their professions, attempted also fairly to put forward the opposing position bearing in mind that the Defendants have been unrepresented and the Council has not attended. I want also to thank Mr Hardy and Mr David Bowen for their courteous and helpful submissions on behalf of the Defendants and the CFAG.

5

Mr Laurence has submitted, and I accept, that there are effectively three basic questions that I must answer that arise from section 14 as follows:-

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?

6

Mr Laurence's primary submission is that the Council was wrong to register the Land as a TVG in the first place in 1997 because it had not been shown and could not have been shown that it was land " on which the inhabitants of any locality have indulged in such [lawful] sports and pastimes as of right for not less than twenty years" within what is known as "class c" of the definition of " town or village green" in section 22(1) of the 1965 Act. The reason, says Mr Laurence, why that requirement was not met was that the usage of the Land was not shown to have been by the " inhabitants of any locality", the term " locality" having been given a highly technical and specialised meaning by the authorities over many years. According to Paddico's submissions, " locality" was to be taken as meaning a " legally recognised administrative district", and user had to be predominantly by inhabitants of such a legally recognised administrative district. At the time of the registration, the CFAG identified the relevant " locality" in its application form as " Edgerton/Birkby", and again according to Paddico, there was no such legally recognised administrative district as " Edgerton/Birkby" or indeed either Edgerton or Birkby, so the application should have failed.

7

Before me, the CFAG's representatives have attempted to show two things: first, that the user was demonstrated, in 1997, to have been by the inhabitants of a qualifying " locality", and secondly, that if that was not the case and a mistake was made by the Council in 1997, the necessary criteria can now be met because the requirement for user by the inhabitants of a " locality" has been relaxed by the introduction of section 98 of the Countryside and Rights of Way Act 2000 (the "2000 Act"). As from 30 th January 2001, the user could be either " by a significant number of the inhabitants of any locality or of any neighbourhood within a locality". According to the CFAG, therefore, a new application made now would anyway be able to show user by the inhabitants of the neighbourhoods of Edgerton and Birkby surrounding Clayton Fields. They rely on the Church of England parishes of Holy Trinity Huddersfield ("Holy Trinity Parish") and St John the Evangelist Bay Hall ("St John Parish"), the Edgerton Conservation Area, and the urban settlements of Edgerton and Birkby identified by the Council from the data obtained from the 1991 Census.

8

Before dealing with these arguments in greater detail, I should set out some of the background and history that has given rise to this application.

Clayton Fields

9

Paddico is the current registered proprietor of the vast majority of Clayton Fields, under title numbers WYK 34112 and YWE 6677. A narrow strip on the northern edge of Clayton Fields to the north of the stream known as Clayton Dike is owned by the Council. The remainder of Clayton Fields (which consists of two small plots on the southern edge of the land) is believed to be owned by the West Yorkshire Integrated Transport Authority.

Chronological background

10

The first references in the historical materials to the village of Edgerton were in 1311 (only 122 years after the accession of Richard I) according to the Public Record Office in Kew, and on a map of the Huddersfield area dating from 1370.

11

The first reference to the village of "Bikebye" was in 1586 according to a book entitled Place Names of the West Riding of Yorkshire Part 2, Cambridge, 1961. It appears that Birkby Manor became part of Huddersfield Manor in 1599, when it was purchased by the Ramsden Estate.

12

Clayton Fields was first named on a 1580 plan as part of the Stony Lee Estate (otherwise known as the Lee Head Estate). It was part of the manor of Bay Hall until 1599, when it too was purchased by the Ramsden Estate.

13

In 1868, the parish of Huddersfield (which included Edgerton and Birkby) came to be administered by the Huddersfield County Borough Council. In 1920, the then Huddersfield Corporation bought most of the Huddersfield area from the Ramsden Estate.

14

On 31 st October 1966, planning permission was granted for 2 bungalows on Clayton Fields located off Deveron Grove. A list of sites where development was started before 6 th April 1967 shows work as having commenced in relation to this permission on 6 th December 1966.

15

On 30 th January 1967, planning permission was granted for 20 houses, 23 bungalows and 12 blocks of flats on part of the Land. Mr James Haigh of George Haigh Ltd said in a statutory declaration dated 17 th March 1997 that foundations were excavated and concreted after the permission was obtained, so that the development was to be considered as having been commenced. The list of sites where development was started before 6 th April 1967 shows work as having commenced in relation to this permission on 7 th March 1967.

16

On 31 st July 1970, the extended period allowed for registration of TVGs under section 1 of the 1965 Act expired.

17

In 1972, Clayton Fields was allocated for housing within the Huddersfield Town map. On 1 st April 1974, the Kirklees Metropolitan Council was established. On 5 th January 1977, the Edgerton Conservation Area was designated as such by the Council, and on 9 th January 1981, the designation of the Edgerton Conservation Area appeared in the London Gazette.

18

In August 1986, the Huddersfield Local Plan was adopted showing Clayton Fields allocated for housing development on the Proposals Map.

19

In August 1990, Clayton Fields is alleged by the Defendants to have become a TVG.

20

On 16 th November 1990, the Council wrote to George Haigh Ltd.'s solicitors in relation to an intended tree preservation order on Clayton Fields saying that they had checked the Council's records and that the January 1967 planning permission was still valid as work had commenced.

21

In September 1992, the Land was occupied by caravan dwellers, and George Haigh Ltd. obtained an order for possession of Clayton Fields against them.

22

In 1993, the deposit draft of the Kirklees Unitary Development Plan (the "UDP"), designating Clayton Fields as a site for housing, was advertised in the London Gazette and in local newspapers to invite public consultation.

23

In July 1996,...

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