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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Newhaven Port & Properties Ltd, R (on the application of) v Secretary of State for the Environment Food and Rural Affairs [2013] EWCA Civ 673 (14 June 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/673.html Cite as: [2014] QB 282, [2013] 3 All ER 719, [2013] 3 EGLR 173, [2013] EWCA Civ 673, [2014] 1 QB 282, [2013] BLGR 570, [2013] 3 WLR 1433, [2013] WLR(D) 234 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
Mr Justice Ouseley
CO/1421/2011
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEWISON
and
LADY JUSTICE GLOSTER
____________________
R (ON THE APPLICATION OF NEWHAVEN PORT & PROPERTIES LIMITED) |
Appellant |
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- and - |
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THE SECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRS -and- EAST SUSSEX COUNTY COUNCIL & NEWHAVEN TOWN COUNCIL |
Respondent Interested Parties |
____________________
Mr Tim Buley (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 21 May 2013
____________________
Crown Copyright ©
Lord Justice Lewison:
Introduction
i) 18 November 2003 to 10 December 2003: hearing before Lightman J.
ii) 22 January 2004: Lightman J gives judgment.
iii) 17 to 20 January 2005: the hearing before the Court of Appeal.
iv) 24 February 2005: the Court of Appeal give judgment reversing Lightman J in part.
v) 19 January 2006: the Commons Bill 2006 is brought from the House of Lords to the House of Commons.
vi) 27 March to 3 April 2006: the hearing before the House of Lords.
vii) April 2006: the Port fences off access to the land which was ultimately registered as a TVG.
viii) 24 May 2006: the House of Lords give judgment reversing the Court of Appeal.
ix) 19 July 2006: the Commons Act 2006 is passed.
x) 6 April 2007: section 15 of the Act comes into force.
xi) 18 December 2008: the application for registration is made.
The legislation and its history
"town or village green" means land …on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than twenty years."
"41 Section 22 as originally enacted said that land which the inhabitants of the locality have used for sports and pastimes "for not less than 20 years" was a village green. It did not specify when that period should end. In New Windsor Corpn v Mellor [1975] Ch 380, the Court of Appeal thought that it meant 20 years before the passing of the Act. In Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931, 938 Harman J thought it meant 20 years before the date of the application for registration: see also R v Norfolk County Council, Ex p Perry (1996) 74 P & CR 1, 5 (Dyson J) and Caerphilly County Borough Council v Gwinnutt (unreported) 16 January 2002 (Judge Moseley QC). But Mr Edwards, who appeared for Miss Robinson and Mr Laurence, who appeared for the registration authority, said that as the definition did not specify any terminal date, it meant any period of 20 years. On the expiry of a 20-year period of user, the land became a village green. If it had become a green before 1970 and had not been registered, it would be deemed by section 1(2)(a) not to have been a village green on the appointed day. But any 20-year period expiring after the appointed day would do."
"The result of these developments was that, leaving aside the cases in which it was possible to show that (a) the right could not have existed in 1189 and (b) the doctrine of lost modern grant could not be invoked, the period of 20 years' user was in practice sufficient to establish a prescriptive or customary right."
"My Lords, this was the background to the definition of a "town or village green" in section 22(1) of the Act of 1965. At that time, there had been no legislation for customary rights equivalent to the Act of 1832 for easements or the Act of 1932 for public rights of way. Proof of a custom to use a green for lawful sports and pastimes still required an inference of fact that such a custom had existed in 1189. Judges and juries were generous in making the required inference on the basis of evidence of long user. If there was upwards of 20 years' user, it would be presumed in the absence of evidence to show that it commenced after 1189. But the claim could still be defeated by showing that the custom could not have existed in 1189. … It seems to me clear that class c in the definition of a village green must have been based upon the earlier Acts and intended to exclude this kind of defence. The only difference was that it allowed for no rebuttal or exceptions. If the inhabitants of the locality had indulged in lawful sports and pastimes as of right for not less than 20 years, the land was a town or village green."
"town or village green" means land …which falls within subsection (1A) of this section..
(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 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.
(1B) If regulations made for the purposes of paragraph (b) of subsection (1A) of this section provide for the period mentioned in that paragraph to come to an end unless prescribed steps are taken, the regulations may also require registration authorities to make available in accordance with the regulations, on payment of any prescribed fee, information relating to the taking of any such steps."
"The requirement of continuance needs … to be approached in a commonsense fashion. Has the previous public user fallen into disuse is … the right question to be asked."
"in future it should be possible to apply for registration as a town or village green on the basis of at least 20 years' qualifying use not only if (as at present) the use is still continuing, but also up to 5 years after the use ceased (Proposal 8)…"
"In particular it provides for regulations to be made prescribing a period within which a registration application must be lodged when qualifying use of the land has ceased. The courts have tended to the view that when the use is challenged or prevented, applicants must stake their claim that the land has become their green with due expediency. If there is a long delay during which the evidence is gathered and the application prepared, this can be prejudicial to the success of the application. There is, however, a contrary view that the legislation does not impose any requirement for such expediency once the 20-year period has elapsed."
"We believe that there would be advantage in greater clarity on what is required, and hence suggested a five year deadline in proposal 8. This would allow ample time for the preparation of an application and a clear cut off point for the landowner. Following the debates in Parliament on the CROW Act 2000 however, we concluded that this was too long because it imposes uncertainty for an unacceptably long period in cases where the landowner wants to sell or develop the land. As indicated in Parliament, we therefore plan to use the regulation-making powers in section 98 of the CROW Act to provide that potential applicants should have a prescribed period from the date on which their use was challenged in which to lodge a registration application. This will provide certainty for applicants, landowners and registration authorities as to the timeliness of any applications. We are minded to make this period two years but will consult on draft regulations."
"Subsection (1) provides that in qualifying circumstances, any person may apply to the commons registration authority to register land as a green. Subsections (2) and (3) set out the qualifying circumstances. The first case is where a significant number of local inhabitants have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and continue to do so at the time of the application. 'As of right' has been defined in case law as meaning openly, without force, and without permission. The second case is where a significant number of local inhabitants have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years which has ceased, and the application is made within the relevant period after this use ceased. Subsection (6) says that the relevant period is normally two years, but provides that where use as of right has ceased before commencement of the clause, it is five years."
"(4) This subsection applies where—
(a) a significant number of local inhabitants indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the commencement of this section;
(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b); and
(d) the land was neither covered by a building nor within the curtilage of a building on 18 April 2006."
"(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies.
(2) This subsection applies where–
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and
(b) they continue to do so at the time of the application.
(3) This subsection applies where–
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the time of the application but after the commencement of this section; and
(c) the application is made within the period of two years beginning with the cessation referred to in paragraph (b).
(4) This subsection applies (subject to subsection (5)) where—
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the commencement of this section; and
(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b).
(5) Subsection (4) does not apply in relation to any land where–
(a) planning permission was granted before 23 June 2006 in respect of the land;
(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and
(c) the land–
(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or
(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.
(6) In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and (4)(a), there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.
(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied–
(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and
(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land "as of right"."
i) noted that the original proposal for a five year period was supported by the majority of respondents to the consultation;
ii) took the view that a five year period imposed unacceptable uncertainty on landowners wishing to sell or develop their land;
iii) said that the government was minded to prescribe a period of two years;
iv) but said that the government would consult before the final decision was taken.
The effect of section 15
"Mr George does not and, in my view, could not realistically suggest that there was any problematic retrospectivity in such a transitional provision in principle. His submission is in reality directed to its length, especially once it exceeds the two year period in subsection (3) and endures for pre-Act cessations longer than that for the early post–Act cessations. It is however, a period of grace which ends on 6 April 2012, which could never have covered a cessation before April 2002 and, as the years go by, which ceases to be available to those who do nothing about applications which they could have made."
"[Parliament] was entitled to conclude that the time of cessation which would not debar an application should cover most of the period of uncertainty when regulations could have been expected. It was entitled to conclude that the period from April 2007 within which the application would be made should not be two but five years."
"The fact that for a period a person whose user expires before April 2007 is better off than someone whose user expires after it, does not show arbitrariness in an objectionable sense. These are two different cases. A sliding scale could have been introduced to create some perfect alignment of the periods but the absence of that legislative sophistication cannot show that those landowners whose cases fall on the wrong side of the line have had their human rights breached."
A1P1: the principles
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties"
i) Does the contested legislation pursue a legitimate aim; and
ii) If so, are the means by which it does so reasonably proportionate to achieving that aim?
"The second paragraph of A1P1 must be construed in the light of the principle laid down in the first sentence of the article: James v United Kingdom (1986) 8 EHRR 123, para 37. An interference must achieve a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights: Sporrong v Sweden (1983) 5 EHRR 35, para 69. The search for this balance is reflected in the structure of the article as a whole and therefore also in the second paragraph: Mellacher v Austria (1990) 12 EHRR 391, para 48. There must be a reasonable relationship of proportionality between the means employed and the aim pursued: James v United Kingdom, para 50; Mellacher v Austria, para 48."
"There is no doubt that, as regards the question whether it is pursuing a legitimate aim in the general interest, the Parliament has a broad area of discretion in the exercise of its judgment as to social and economic policy: Hutten-Czapska v Poland, paras 164-166; Gauci v Malta, para 54. Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the court to say whether the legislation represents the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way: James v United Kingdom, para 51; Mellacher v Austria, para 53. But there must be a fair balance if the requirement of proportionality is to be satisfied. The balance that must be struck is between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the individual. The question is whether the general interest demands in this case were sufficiently strong to justify the extent of the prejudice that the legislation gives rise to: Lindheim and others v Norway, para 129."
"As the court said in Bäck v Finland (2005) 40 EHRR 48, para 68, it must be open to the legislature to take measures affecting the further execution of previously concluded contracts in order to attain the aim of the policy that was being adopted. Legislation which is retroactive is not necessarily incompatible with A1P1: MA v Finland (2003) 37 EHRR CD 210, 217. As the court pointed out in that case, retrospective legislation is not as such prohibited by that provision."
"If it is to be held to be compatible with the appellants' Convention right, the 2009 Act must be shown to be pursuing a legitimate aim and to be reasonably proportionate to the aim sought to be achieved."
"I reject the notion that a court should not conclude that a legislative aim was legitimate in the absence of evidence in support from a Government Department, making the executive responsible for expressing and justifying the views of Parliament, as expressed in primary legislation. Rather, a court should see in what Parliament has enacted a legitimate and proportionate aim unless the contrary is unequivocally proved."
Legitimate aim
"Our starting point in all of this is that where people have genuinely used a local area of land for their recreation as of right – (that is, openly, without permission, and without force) – and can show that this kind of use has continued for at least 20 years, it should be possible for them to get the land registered as a green. But if one or more of these things cannot be shown, then registration must remain impossible."
"The underlying principle is that after that period of grace has elapsed it would be too late to apply for registration unless a fresh 20 years' use was subsequently accumulated."
"There is a balance to be struck. Yes, we must help landowners who wish to do so to achieve greater clarity about the status of such areas of land without encountering endless delay and uncertainty; but on the other hand there need to be a fair opportunity for an application to be made to register land as a green if it has been used in a qualifying way for at least 20 years but its use is then brought into question."
"… have failed to put local people on notice that that apparently friendly action constituted a threat to their future use of the land. That is why we suggest that a five year period of grace should apply in any case where the 20 years' use as of right was achieved, but then ended before commencement of that clause."
Proportionality
"Had the provision been limited to a short period after the cessation of the use, then there might have been a legitimate aim: namely to deal with the situation where a landowner, by erecting fencing or prohibitive notices, brought the user to an end but where it was reasonable to allow a relatively short period for the application to be made."
"I do not attribute significance to the Government's promise in the Common Land Policy Statement 2002 that it would consult on the period of grace in any regulations put forward under s22(1A), for the absence of consultation about the period inserted into primary legislation. Parliamentary process is not subject to such legitimate expectations, as Mr George recognised; and there was no actual failure in any promise made by government at all. The absence of such consultation cannot show that an otherwise legitimate interference with A1P1 rights was illegitimate. It could reinforce an argument that no reasonable aim existed or that the asserted aim was not the one pursued. But that is not the position here."
Result
Lady Justice Gloster:
Lord Justice Lloyd: