The claimant appealed against refusal of its challenge to an order declaring part its land to be a town or village green.
Held: The term ‘neighbourhood within any locality’ in section 22(1A) can mean a singular neighbourhood or more than one neighbourhood.
Sullivan LJ, dissenting mentioned the absurdity of the situation in a case such as this where a Town or Village Green between two neighbourhoods could not be registered: ‘Like the judge, I can see no logical reason why ‘any neighbourhood’ in sub-s 22(1A) should not include two or more neighbourhoods. There is nothing in the language of the subsection to suggest that ‘any neighbourhood’ must mean only one neighbourhood. The fact that Parliament chose to retain the ‘Common Law baggage’ associated with ‘locality’ in limb (i) of the subsection is not a reason to infer that it intended that all aspects of the common law locality rule were to be grafted onto the new concept of ‘neighbourhood within a locality’ in limb (ii). Lord Hoffmann’s observations in para 27 of the Oxfordshire case were obiter, but they are, at the very least, persuasive. Lord Rodger and Lord Walker agreed with his speech (paras 114 and 124). If the amendment to s 22(1) was intended to abolish technicalities, and was obviously drafted with a deliberate imprecision to that end, it would be contrary to Parliament’s intention to confine ‘any neighbourhood within a locality’ to only one neighbourhood within a locality. By its very nature a locality is likely to contain a number of neighbourhoods. Mr Laurence submitted that this approach to sub-s 22(1A) would open the door to registration too wide, to the disadvantage of landowners. However, Parliament while abolishing technicalities in the limb (ii) of Class C, also made it clear that in respect of both limbs only user by a significant number of the inhabitants of the locality, neighbourhood or neighbourhoods, as the case may be, will suffice.’
Arden LJ said: ‘There is no necessary link between a locality (an administrative area) and a neighbourhood. A neighbourhood is not a sub-division of a locality. This may be a further point that led Lord Hoffmann to his conclusion that it is unlikely that Parliament intended a neighbourhood to be wholly within a single locality. By parity of reasoning with the various points that Lord Hoffmann made, since it is common knowledge that many villages and towns have more than one neighbourhood, it is in my judgment unlikely without some clear indication to that effect that Parliament intended that no Class C TVG should be registered if it was used by a significant number of inhabitants from more than one neighbourhood. The landowner is protected by the other requirements of s 22(1A), particularly the requirement for use to be continuing.
Judges:
Arden, Sullivan, Tomlinson LLJ
Citations:
[2010] EWCA Civ 1438
Links:
Statutes:
Commons Registration Act 1965 14
Jurisdiction:
England and Wales
Citing:
Appeal from – Leeds Group Plc v Leeds City Council ChD 21-Apr-2010
Application had been made to the defendant to register as a common land belonging in part to the claimant and in part to the defendant. The claimant objected to the registration. The defendant did not. . .
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 31 August 2022; Ref: scu.427368