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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Betterment Properties (Weymouth) Ltd v Dorset County Council  EWHC 365 (Ch) (02 March 2007)
Cite as:  EWHC 365 (Ch),  NPC 26,  2 All ER 1000
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Strand, London, WC2A 2LL
B e f o r e :
| Betterment Properties (Weymouth) Limited
|- and -
|Dorset County Council
Mr John Hobson QC and Mr Philip Coppel (instructed by Mr Jonathan Mair, Head of Legal and Democratic Services, Dorset county Council, County Hall, Colliton Park, Dorchester DT1 1XJ) for the Defendant
Hearing dates: 23rd 24th January 2007
Crown Copyright ©
Mr Justice Lightman:
"13. Regulations under this Act shall provide for the amendment of registers maintained under this Act where .
(b) any land becomes common land or a town or village green ."
Two observations should be made in respect of this section. The first is that the word "becomes" in section 13(b) means "becomes on registration": see Oxfordshire County Council v. Oxford City Council  2 AC 674 ("Oxford"). The second is that the required regulations were made in the form of the Commons Registration (New Land) Regulations 1969 which (amongst other things) prescribed the form of the application for registration.
"The substance of the application is a disagreement with the weight attributed by the panel to the evidence before it and the findings of fact made by the Defendant's panel. That does not justify judicial review. There was no relevant error of law: the claimant accepts that the panel correctly set out the requirements of user as of right . The applicability of section 14 of the Commons Registration is arguable."
PRELIMINARY ISSUE I
"Whether the jurisdiction conferred by section 14(b) of the Commons Registration Act 1965 is by way of rehearing or appellate or on some other basis?"
"14. The High Court may order a register maintained under this Act to be amended if
(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 the court deems it just to rectify the register."
It is common ground that any error established cannot be corrected in pursuance of regulations made under the 1965 Act, for no such regulations have been made.
PRELIMINARY ISSUE II
"Whether an application to register land as a Town or Village Green (made before 30 January 2001 but not determined before that date) should be determined (1) by reference to the definition of Town or Village Green as it existed before the amendment effected by section 98 and section 103 of the Countryside and Rights of Way Act 2000, or (2) by reference to the amended definition which came into force on that date."
"(1) In this Act, unless the context otherwise requires
'town or village green' means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years."
"(1) In this Act, unless the context otherwise requires
'town or village green' means land which has been allotted by or under any Act for exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or which falls within subsection (1A) of this section.
(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."
There have been as yet no prescribed provisions for the purposes of section 98(1A)(b).
i) in the case of the Unamended Definition the 20 years user sufficient to give rise to the right to registration of a town or village green may have expired prior to the application for registration, but in the case of the Amended Definition the 20 year user must have continued until the date of the application for registration;
ii) in the case of the Unamended Definition the user has to be by the inhabitants of a locality. Under the Amended Definition, the user is to be by a significant number of the inhabitants of a locality or of a neighbourhood within a locality.
The differences in the definitions and accordingly in the tests to be applied are such that an application for registration may succeed or fail according to which definition is applicable.
"(1) that the rights encapsulated in a town or village green only arise upon a parcel of land being registered as a town or village green;
(2) that the making of an application for registration as a town or village green is a simple matter of filling in a short prescribed form;
(3) that a person can make repeated applications for registration;
(4) that different people can make application for registration of the same parcel of land;
(5) that the decision to register is not a bilateral process between an applicant and a registration authority: rather, the registration authority must invite the views of the landowner and adjudicate on the competing evidence that they adduce;
(6) that a successful applicant does not secure a personal, proprietary benefit for himself;
(7) that the determination of an application is an administrative procedure carried out by the registration authority."
"Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time. By contrast, in a judicial proceeding brought to enforce an alleged right accrued at the time when the proceedings were instituted, the question for decision is determined according to the law existing when the proceedings were instituted unless statute otherwise provides.
Brennan J expressed this distinction as being between:
'a judicial proceeding to enforce an accrued right and an administrative proceeding to determine whether a right should be granted.'"