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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Adamson v Paddico (267) Ltd [2012] EWCA Civ 262 (07 March 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/262.html Cite as: [2012] EWCA Civ 262, [2012] 11 EG 92, [2012] 2 P & CR 1, [2012] BLGR 617, [2012] LGR 617 |
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ON APPEAL FROM THE HIGH COURT CHANCERY DIVISION
MR JUSTICE VOS
HC10C00295
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SULLIVAN
and
LORD JUSTICE PATTEN
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JONATHAN ADAMSON |
Appellant |
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and - PADDICO (267) LIMITED (1) KIRKLEES METROPOLITAN BOROUGH COUNCIL (2) WILLIAM JOHN MAGEE (3) THOMAS MICHAEL COURTNEY HARDY (4) |
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Respondents |
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Mr. George Laurence QC and Miss Ross Crail (instructed by DLA Piper UK LLP) for the First Respondent
Hearing dates: 6th – 9th February 2012
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Crown Copyright ©
Lord Justice Sullivan:
Introduction
The Commons Registration Act 1965
"1- (1) There shall be registered, in accordance with the provisions of this Act ….
(a) Land in England or Wales which is common land or a town or village green; …
(2) After the end of such period, not being less than three years from the commencement of this Act, as the Minister may by order determine -
(a) No land capable of being registered under this Act shall be deemed to be common land or a town or village green unless it is so registered; ….."
13. Regulations under this Act shall provide for the amendment of the registers maintained under this Act where –
(a) Any land registered under this Act ceases to be common land or a town or village green; or
(b) any land becomes common land or a town or village green;
14. The High Court may order a register maintained under this Act to be amended if –
(a) the registration under this Act of any land or rights of common has become final and the court is satisfied that any person was induced by fraud to withdraw an objection to the registration or to refrain from making such an objection; or
(b) the register has been amended in pursuance of section 13 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of regulations made under this Act;
and in either case, the court deems it just to rectify the register.
22. (1) In this Act, unless the context otherwise requires, - "town or village green" means land [a] 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."
I have added [a] –[c] for ease of reference. The three types of green are commonly referred to as Class a, b and c greens.
The Countryside and Rights of Way Act 2000
"(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 falls 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 [i] any locality, or of [ii] 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."
Thus, there are now two limbs to class c village greens under subsection (1A).
Factual Background
"The decision of this committee is that the application for the registration of land at Clayton Fields, Edgerton under the Commons Registration Act 1965 section 13 is granted. That is the decision of this committee. Thank you."
The judgment of Vos J
"(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 14th 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?"
"In my judgment, on the materials available to the Committee in 1997, it was not justified in making the registration for one simple reason, namely the proper legal meaning of the words "any locality" in the class c definition in section 22(1). Despite the views that I expressed earlier as to the meaning of the term "locality" viewed in 1997, it has, I think, now been accepted at too high a level for me to gainsay that the term "any locality" is singular in the class c definition: "on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years". I am bound to say that I would have construed the words "any locality" in the class c definition, in the original section 22(1) and in both limbs of section 22(1A), had I been starting with a clean sheet of paper, as meaning "locality or localities" in the way that Lord Denning MR and Brightman J suggested in the New Windsor case. I would also observe once again that the law was far less clear when, in 1997, the Committee made its determination. But since the matter has now been clarified, albeit obiter, at the highest level, I do not regard it as open to me to hold that "any locality" can be plural in section 22(1) or in the first limb of section 22(1A)."
"[T]he Committee must have thought that the user established was by inhabitants of the two suburban areas that they knew familiarly as Edgerton and Birkby… [Before us there was no dispute that this was the basis of the Council's decision]…..but if that is what they did think, it was not good enough to satisfy the legal requirements."
"I should not leave this case without expressing my disquiet at the outcome. It is caused almost entirely by the fortuity of Clayton Fields lying geographically between districts, neighbourhoods, parishes and localities, and by the unsatisfactory state of the law prior to the 2000 Act. I am by no means sure that the strict interpretation of the word locality in section 22(1) of the 1965 Act was mandated by the older cases, but that construction has now been reiterated too often and at too high a level for it easily to be changed. It may be hoped that the hangover of cases governed by the old law will be few and far between, and that the more liberal and intelligible rules contained in the 2000 Act and ultimately in the 2006 Act will hold sway for the future."
Discussion
(a) Clayton Fields ought not to have been added to the register by the Council upon the basis that 20 years user by the inhabitants of Edgerton and Birkby had been established; and
(b) It was just to rectify the register.
Vos J's issue (ii) was an aspect of the second question. Mr. Laurence accepted that it would not be just to rectify the register if, on the evidence before Vos J, registration could be justified by reference to some other locality.
(i) Applying the Interpretation Act 1978, the singular included the plural, unless a contrary intention appeared, and no such intention appeared on the face of the 1965 Act.
(ii) The 1965 Act was intended to create a new scheme incorporating class a recreational allotments, class b customary greens and class c greens. The words "the inhabitants of any locality" appeared in all three classes, and it should be given the same meaning throughout the subsection. Class a land was not allotted for the benefit of the inhabitants of an administrative area. The word "locality" in the subsection should be given its ordinary and natural meaning unencumbered by any meaning derived from the law of customary rights in class b.
(iii) In any event, an analysis of the pre–1965 Act authorities in respect of customary greens demonstrated that, while the locality had to be certain, it did not have to be an administrative area known to the law. The only case in which it had been held that a custom could not be shared by the inhabitants of more than one locality – Edwards v Jenkins [1896] 1 Ch 308 – had been questioned in New Windsor Corporation v Mellor [1975] Ch 380 – see per Lord Denning MR at page 387, and was doubted in Halsbury 4th Edn. Vol. 12(1) paragraph 616, fn 19.
"25. In R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, however, your Lordships' House rejected requirement of a subjective state of mind by people using the land and thereafter, as Carnwath LJ observed in this case [2006] Ch 43, 61 registration of new village greens became "an area of unusually vigorous legal activity". Once 20 years' user had been established, the only substantial hurdle which the applicant for registration had to overcome was, as it had been in the Victorian cases on customary greens, proof that the user had been by the inhabitants of the defined locality. This requirement was relaxed by the House in the Sunningwell case [2000] 1 AC 335, 357-358 only to the extent of saying that not all the users needed to be inhabitants of the locality in question. It was sufficient that the land was used "predominantly" by such inhabitants.
The amendment of section 22
26. Soon after the decision in the Sunningwell case, the question of town and village greens was raised in Parliament. This was in the debates of the bill which became the Countryside and Rights of Way Act 2000. No one voiced any concern about the construction which the House in its judicial capacity had given to the 1965 Act. On the contrary, the only question raised in debate was whether the locality rule did not make it too difficult to register new village greens. In your Lordships' House, Baroness Miller of Chilthorne Domer described the need for the users to be predominantly from the local community, defined by reference to a recognised ecclesiastical parish or local government area, as a "loophole" in the 1965 Act which "allows greens to be destroyed" (Hansard (HL Debates) 16 October 2000, col 865). The Government was sympathetic and introduced a suitable amendment which was adopted at the report stage (Hansard 9HL Debates) 16 November 2000, col 513). This became section 98 of the 2000 Act, which amended section 22 by substituting a new third limb of the definition (class c):
"(1A) Land falls within this subsection if it is land on which for not less than 20 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."
No period has yet been prescribed under paragraph (b).
27. "Any neighbourhood within a locality" is obviously drafted with a deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries. I should say at this point that I cannot agree with Sullivan J in R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] JPL 975 that the neighbourhood must be wholly within a single locality. That would introduce the kind of technicality which the amendment was clearly intended to abolish. The fact that the word "locality" when it first appears in subsection (1A) must mean a single locality is no reason why the context of "neighbourhood within a locality" should not lead to the conclusion that it means "within a locality or localities".
"The strictest application of the locality rule was in Edwards v Jenkins [1896] 1 Ch 308, in which Kekewich J held that the inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land in Beddington. One parish, one custom. In New Windsor Corpn v Mellor [1975] Ch 380, 387 Lord Denning MR thought that Kekewich J had gone too far. "So long as the locality is certain, that is enough." But there is no doubt that the locality rule was the pinch-point through which many claims to customary rights of recreation failed to pass."
Conclusion
Lord Justice Patten:
Lord Justice Carnwath:
Locality
"A custom must be certain in respect of the locality where it is alleged to exist… This area must be defined by reference to the limits of some legally recognised administrative division, as for instance a county, a hundred, a forest, a region of marshland, a city, a town or borough, a parish, a township within a parish, a villa, a hamlet, a liberty, a barony, an honour, or a manor." (para 616: the footnotes give appropriate references)
Justice
Alternatives
Delay