The company sought an order removing some 46 acres of land from designation as a village green. The claimant sought the amendment of the register. The parties disputed what evidence beyond that available to the committee making the decision should be admissible.
Held: The jurisdiction of the court was not an appellate one, and therefore the court was not restricted by appellate rules. The court was free to use the procedure best calculated to enable a just and fully informed decision to be reached. It would be a matter for the judge exercising his case management powers to specify those acts.
Lightman J considered the section 14 procedure: ‘In my judgment on the face of the statute the court is free to adopt the procedure best calculated to enable a just and fully informed decision to be reached whether ‘no amendment or a different amendment ought to have been made’, whether it is just to rectify the register, what should stand as evidence and what evidence should be admitted. The court in exercise of its case management powers will have regard to the process adopted by the registration authority or any panel when the amendment of the register under s 13 of the 1965 Act was made and the evidence adduced before it. It will no doubt have in mind that with the passage of time recollections will have dimmed and potential witnesses may have died or ceased to be available. It may (for example) direct that evidence (in particular if unchallenged) adduced before the registration authority or any panel shall stand as evidence and any finding by it shall stand: (a) as a finding of fact at the hearing before the court; (b) as evidence; or (c) as a finding of fact in the absence of evidence to the contrary; and in deciding on the admissibility of evidence the court will no doubt bear in mind that no amendment shall be rectified unless it is just to do so and that it may be unjust to order rectification on the basis of new evidence eg which cannot now be challenged but could have been when registration took place.
This approach accords with what Parliament must have had in mind in conferring the jurisdiction to rectify. First it is no trivial matter for a public or private landowner to have land registered as a town or village green. If the entry in the register cannot be corrected under s 14, registration can effect (potentially catastrophic) blight on user and development. Section 16 of the 2006 Act when it comes into force will authorise the Secretary of State in the circumstances and on the conditions there set out to direct deregistration and accordingly where the provisions of that section can be invoked the blight may no longer be permanent, but the consequences of registration remain serious. Second the procedure on the application for registration is intended to be relatively simple and informal. There is no provision for the service of subpoenas or for orders for disclosure. Relevant evidence may only emerge later. It may be difficult (if not impossible) at a later date to identify the exact nature and limits (let alone the credibility) of the evidence adduced in support of (or against) the application or of the registration authority’s conclusions as to the credibility or relevance of any particular evidence. Because of the absence (for any of a number of reasons) of objection to the application, it may have been appropriate for the Applicant for registration to limit the evidence he adduced or the relevant evidence may have been unavailable. The problem is complicated when (as in this case) there is a change in ownership of the servient land. The new owner is likely to be at a disadvantage knowing the earlier course of events. To limit the evidence available in the High Court to the evidence adduced before the registration authority is calculated to raise serious practical problems, give rise to unfairness and to emasculate the jurisdiction. Parliament must surely have preferred to vest in the court the power to decide whether the admission of any particular evidence was calculated to promote the achievement of justice’.
Judges:
Lightman J
Citations:
[2007] EWHC 365 (Ch), Times 02-Mar-2007, [2007] NPC 26, [2007] 2 All ER 1000
Links:
Statutes:
Commons Registration Act 1965, Countryside and Rights of Way Act 2000
Jurisdiction:
England and Wales
Citing:
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Jones v Attorney General CA 1974
The court was concerned with an appeal against an order made following an inquiry made under statutory powers by the Charity Commission, which had resulted in a written report. The court held that the issues were at large, but that the contents of . .
Cited – Lloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
Cited – Regina v Suffolk County Council Ex Parte Steed and Steed Admn 1995
Judicial review was sought of the Council’s decision to refuse to register a park as a Town or Village Green.
Held: Carnwath J looked at the procedure to be followed by a council receiving an application for registration of commons right: ‘it . .
Cited by:
Appeal from – Betterment Properties (Weymouth) Ltd v Dorset County Council CA 6-Feb-2008
A large area of land had been registered as a town or village green. The company, owner of the land, had succeeded in having the registration removed. The Council appealed, question whether the procedure undertaken by the High Court on such an . .
See Also – Betterment Properties (Weymouth) Ltd v Dorset County Council and Another ChD 23-Nov-2010
A claim was made for the rectification of the register of Town or Village Greens to remove the registration for their land.
Held: The register should be rectified. The user relied on had been neither peaceable nor ‘as of right’ as required. As . .
See Also – Betterment Properties (Weymouth) Ltd v James Carthy and Company Ltd CA 15-Dec-2010
Dispute as to presence of public right of way. . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Appeal from – Taylor v Betterment Properties (Weymouth) Ltd and Another CA 7-Mar-2012
The respondent owned farmland over which public rights of way were claimed. . .
Lists of cited by and citing cases may be incomplete.
Land, Litigation Practice
Updated: 10 July 2022; Ref: scu.249387
