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||Neutral Citation Number:  EWCA Civ 250
||Case No: A3/2010/2971
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
||Royal Courts of Justice
Strand, London, WC2A 2LL
||7th March 2012
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE SULLIVAN
LORD JUSTICE PATTEN
|| Mrs Gill Taylor (on behalf of the Society for the Protection of Markham and Little Francis)
||- and -
||(1) Betterment Properties (Weymouth) Ltd
(2) Dorset County Council
Charles George QC, Philip Petchey and Ned Westaway (instructed by Public Law Solicitors) for the Appellant
George Laurence QC and William Webster (instructed by Pengillys) for the Respondents
Hearing dates : 6th - 9th February 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Patten :
- Betterment Properties (Weymouth) Limited ("Betterment") is the owner of some 46 acres of land near Weymouth in Dorset which was registered by Dorset County Council ("the Council") in June 2001 as a town or village green. At the time of the registration the land (which I shall call "the registered land") was in the ownership of members of the Curtis family as part of a larger parcel of open grazing land comprising some 94 acres. The registered land forms the eastern portion of the total holding and is bordered on that side by a built-up area consisting of housing and a school. It is also bisected by two public footpaths; one of which (FP79) runs diagonally across the land from the end of a street of houses on the northern boundary of the registered land (Markham Avenue) to its south-western corner; the other of which (FP92) runs in from the western boundary of the land (Cockles Lane) until it joins FP79 roughly speaking in the middle of the registered land. Cockles Lane is also a public footpath (FP130) which forms the north western boundary of the registered land up to the point where it reaches a public highway.
- The western boundary of the registered land is open land and by using FP79 one can walk across the registered land from the north and then on to reach Wyke Road further to the south. The other geographical feature which needs to be mentioned by way of introduction is a relatively small area of land in the south west corner of the registered land which is shown cross-hatched on the plan of the area. It is common ground that this should not have been included as part of the registration and it will therefore be removed from the register regardless of the outcome of the appeal.
- The location of the registered land and the existence of public rights of way both over and adjacent to it are important features relevant to its registration. Although the eastern and northern boundaries with the areas of developed housing were largely fenced, members of the public remained entitled to cross the registered land via the public footpaths. But they had no legal entitlement before 2001 to walk or exercise their dogs on the remainder of the land or to seek to enter the land at any points other than the footpath entrances. But in December 1994 a Mrs Horne applied to the Dorset County Council ("the Council") (which is the registration authority under s.2 of the Commons Registration Act 1965) ("the 1965 Act") to register the land (including the cross-hatched land) as a new town or village green. This was defined in s.22(1) of the 1965 Act as it then stood as:
"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."
- The statutory definition is not broken down into sections (a), (b) and (c) as above but, like the judge, I have added these letters simply to differentiate between the three bases upon which a valid registration can be made.
- Section 1(2) of the 1965 Act empowered the minister by order to designate the end of a period after which no land capable of being registered as a town or village green shall be deemed to be a town or village green unless it is so registered. As a result of orders made under s.1(2), the relevant period ended on 31st July 1970. The effect of this was to bring into effect a system of compulsory registration of common land and town or village greens under which applications for registration could be made by any person or by the registration authority resulting in provisional registration: see s.4. The registration authority had then to give notice of that registration to the public (including the landowner) and any objections to registration (unless withdrawn) were referred for determination by a Commons Commissioner: see s.6.
- Once confirmed, the registration of land as a town or village green became conclusive evidence of the matters registered but s.13 of the 1965 Act made provision for regulations to be made whereby the registers might be amended where "any land becomes common land or a town or village green". This power was exercised in the form of the Commons Registration (New Land) Regulations 1969 (SI 1969 No. 1843) under which any person may apply for the registration of a town or village green. On receipt of the application, the registration authority is required to notify the landowner and any other interested parties and to consider any objections which it receives. It is then for the registration authority itself to decide whether to accept the application and to make the necessary amendment to the register.
- No procedure is laid down by the 1969 regulations as to how that decision should be reached but s.14 of the 1965 Act enables the High Court to further amend the register 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, in either case, the court deems it just to rectify the register."
- Mrs Horne's application was made under s.13 on the basis that the registered land had become a town or village green on 1st August 1990. She therefore relied on twenty years' user after 31st July 1970. The Council notified the Curtis family of the application and an objection to registration was lodged on their behalf on 19th October 1995. This consisted of a 12-page report supported by 15 witness statements including statements from Mr Barry Curtis and Mr Maurice Curtis. The objection was based on two main grounds: it was said that the use of the registered land by members of the public that was relied on was not use by the inhabitants of a locality within the meaning of s.22(1) because the individuals in question were residents of too wide an area; and it was contended that their use was not user as of right.
- This second ground of objection was that user had to be nec vi, nec clam, nec precario for the entire twenty years and that throughout this period the public had either used force in order to gain access to the land or had done so with stealth or with permission. On the first of these issues the evidence from the Curtis family was that they had at all times strenuously resisted any acts of trespass on their land by maintaining fences to the boundaries with local housing and by erecting notices on the registered land warning people not to trespass and to keep off the land on either side of the footpaths.
- These objections were forwarded by the Council to Mrs Horne who then submitted a lengthy response. The members of the public whose use of the land was relied on in the s.13 application had in most (if not all) cases filled in questionnaires in which they were asked (inter alia) to say where they lived; what use they had made of the land; what use they had seen others making of the land; whether people from outside their locality used the land; whether they had ever met the owner of the land; whether they had used the land with the owner's permission; and whether anyone (by a notice or other means) had tried to prevent them from using the land. Mrs Horne, in her response, relied on the fact that none of these users recalled seeing any signs warning them off the land.
- The county solicitor recommended that the s.13 application for registration be refused on the ground that the evidence pointed to user of the registered land being by the public at large rather than by the inhabitants of a defined locality. He also said that there was no evidence of any lawful sports or pastimes. Most of the use was simply recreational such as walking (with or without a dog). On 21st November 1996 the Council proceeded to refuse the application. Undeterred by this, Mrs Horne continued to correspond with the Council and in February 1997 asked for her application to be re-considered. On 17th March 1997 she formally submitted a second s.13 application explaining that she was now relying on new evidence about the relevant locality. After further correspondence Mrs Horne was invited to re-submit her application with all the evidence she wished to rely upon. This she did on 30th September 1997.
- On 29th April 1998 the Council amended the register with a provisional registration of the registered land (including the cross-hatched land) as a new town or village green. This was an error because there is nothing equivalent to provisional registration under s.4 of the 1965 Act when the application is made under s.13. The application was then considered by the Council's countryside and conservation sub-committee on 24th November 1999 when it recorded that Mrs Horne had agreed to the deletion of the cross-hatched land from the registration. In relation to the remaining land, the sub-committee resolved to hold a non-statutory public inquiry into the application which would take the form of a hearing before three councillors. This took place between 7th and 11th December 2000. There was oral evidence from a large number of witnesses followed by submissions from Mrs Horne (who acted in person) and from Mr Webster who was instructed on behalf of the Curtis family. Both sides then put in written submissions.
- One issue raised in these closing submissions was the amendment made to the definition of a town or village green in s.22(1) of the 1965 Act by s.98 of the Countryside and Rights of Way Act 2000 ("the 2000 Act"). In its amended form s.22(1) now provides that:
"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 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 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."
- Mr Webster submitted to the inquiry that the amended definition did little more than to set out the existing law on the meaning of "inhabitants of any locality". Mrs Horne contended that as her s.13 application had not been determined by 30th January 2001 when the amendment came into force, the new definition should be applied.
- On 5th June 2001 the Council notified the parties that it had decided to register the land as a new town or village green. In its decision letter it stated that it had applied the amended definition under s.98 of the 2000 Act. After summarising the evidence and the submissions the Council set out its conclusions. In summary, these were:
(i) that there had been 20 years' use of the registered land by residents of the borough of Weymouth and Portland which was a distinct and identifiable locality for this purpose. So also was Wyke Regis;
(ii) that the user was for lawful sports and pastimes which could include dog walking and playing with children: see R v Oxfordshire CC ex parte Sunningwell PC  AC 335 ("Sunningwell");
(iii) that this period of user had not been obstructed or prevented by work carried out to part of the registered land between 1979 and 1982 by the Weymouth Drainage Scheme: (this is a separate and distinct objection to the registration of part of the land which I will come to later in this judgment); and
(iv) that the user had been as of right. The letter stated that:
"The Panel also considered whether the evidence showed that the owner had taken sufficient steps either to prevent use by the people living in the neighbourhood or to make it clear to them that their use was not as of right. The Panel noted that the applicant's witnesses who were presented to the inquiry did not mention seeing any signs on the Application Site or surrounding area.
The Panel also noted that the Objector had taken no steps either to secure the site or make it clear that use was not as of right since the previous application in 1995, when the Objector had notice of the rights being claimed over the application Site. Panel Members were satisfied that the evidence showed that a significant number of the inhabitants of the neighbourhood had as of right continued to use the Application Site for lawful sports and pastimes from 1995 until the Panel determined the application."
- In August 2001 Mr Barry Curtis, on behalf of the landowners, began proceedings in the Administrative Court for judicial review of the Council's decision to register. Part of the Council's response to the application was that it was inappropriate for the Curtis family to seek judicial review when Parliament had provided a statutory right to seek rectification of the register under s.14 of the 1965 Act. Permission was refused on the papers by Stanley Burnton J but before the application came to be renewed at an oral hearing Mr Curtis agreed (on advice from Mr Laurence QC) to discontinue the application for judicial review and to make instead a s.14 application for the removal of the amendment to the register. The Council agreed that it would not seek to argue that Mr Curtis was issue estopped in this regard.
- The Administrative Court proceedings were discontinued in November 2001. There is then a gap in time until January 2004 when Betterment acquired the freehold of the registered land. In December 2005 the company commenced an application under Part 8 for s.14 relief. On 18th July 2006 Master Teverson directed the trial of two preliminary issues as to (1) whether a hearing under s.14(b) was by way of re-hearing, review or on some other basis; and (2) whether the s.13 application to amend the register had been governed by the amended or unamended definition of a town or village green.
- The hearing of the preliminary issues took place before Lightman J in March 2007: see  EWHC 365 (Ch). He held that the jurisdiction exercised by the court on a s.14(b) application was not merely appellate or supervisory:
"15. 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 section 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 e.g. which cannot now be challenged but could have been when registration took place.
20. I accordingly hold in answer to the first question that Section 14 imposes no fetter on the evidence or arguments which may be relied on to establish that no amendment or a different amendment should have been made, even as it imposes no fetter on the evidence or argument which may be relied on to establish that it is or is not just to rectify the register; and that it is a matter for the judge hearing the application under Section 14 in the exercise of his case management powers to decide the procedure to be adopted and what should stand as evidence and what should be admitted as evidence at the trial."
- On the second issue he held that the applicable definition of "town or village green" was the one in force when the s.13 application was made. It was therefore s.22(1) in its unamended form. On appeal his judgment was upheld on both grounds for the reasons which he gave: see  EWCA Civ 22.
- The s.14 application therefore proceeded to a hearing on this basis. Mrs Horne was no longer able to represent the interests of the local inhabitants and in August 2008 Mrs Taylor was joined by consent as the second defendant. In a letter dated 15th May 2008 Betterment's solicitors accepted that the evidence which had been given at the 2000 inquiry did establish that "most of the land" had been used for lawful sports and pastimes for over twenty years prior to 1997. In its Re-amended claim form (dated 27th October 2009) the amendment of the register in 2001 was challenged on three grounds:
(i) that there was no evidence that the users of the registered land came from a locality sufficient to satisfy the definition in s.22(1);
(ii) that there had not been at least twenty years' user as of right because:
(a) before 1980 and after 1994 in relation to the registered land as a whole; and
(b) between 1979 and 1982 in relation to what was described as the Works Site;
that use was contested by the landowners; and
(iii) in relation to the Works Site there was uncontested evidence that the site had been fenced and not used for lawful sports and pastimes during the period of the works.
- The Works Site refers to the part of the registered land that was excavated between 1979 and 1982 as part of a major drainage scheme. This involved the construction of a tunnel across the land. In addition a large surrounding area was used for a car park and associated construction works. Betterment's case (which the judge accepted) is that for several months at the very least the entire site was fenced off thereby making any use of the land by the local inhabitants impossible. Its secondary case therefore is that this land should be excluded from the registration even if it is otherwise upheld.
- The hearing of the s.14 application took place before Morgan J over nine days in June 2010. The judge sat in Weymouth to hear the oral evidence and was able during that time to visit the site himself. He was provided with copies of the witness statements produced at the 2000 inquiry and with a transcript of that hearing. Some of Betterment's witnesses produced new witness statements for use in the s.14 proceedings and one (Mr Barry Curtis) gave oral evidence and was cross-examined. But, for the most part, the judge was confined to the witness statements and cross-examination at the earlier inquiry and was asked to re-consider and review that evidence having regard to the points of objection raised in the s.14 proceedings.
- He held ( EWHC 3045 (Ch)) that there had not been user as of right for at least twenty years prior to the s.13 application. The user remained contentious (i.e. vi) until 1984 even if it was acquiesced in thereafter.
- In these circumstances he made no findings about locality and expressed no view as to what was required to satisfy the s.22(1) definition of a town or village green in its unamended form. But he did also accept that at least from December 1979 to April 1980 a substantial part of the works site was fenced off and was not available for public use and that this area ought not to have been included in the s.13 registration.
- The judge went on to hold that it was just to rectify the register:
"188. Mr Petchey submitted that the court should be more reluctant to rectify the register when the register entry has remained in existence for a period of some 9½ years, from around June 2001 to the present time. However, during those 9½ years, residents in the local area have had the benefit of the registration which, on my findings, they should not have had. I do not see why the fact that the local residents have in the past, by reason of the registration, enjoyed rights which they should not have had, produces the result that they should now be able to enjoy such rights in perpetuity.
189. Betterment has referred to all the events which occurred in the intervening 9½ years and has submitted that time has not been wasted in getting the case to the point it has now reached. It is no doubt the case that the matter could have been progressed more quickly at certain stages. I get the sense that Betterment has not treated this litigation as one which required an urgent resolution. After all, Betterment still does not have any planning permission for development for any of its land. However, any disadvantage suffered by reason of delay since 2001 appears to me to have been felt by Betterment (with reference to any responsibilities they may have had to members of the public being on their land) rather than by the residents of the local area, who have been able to enjoy the land without interference from the landowner. In the end, I do not see that the mere passage of time is material, one way or the other, to the issue of the justice of rectifying the register."
- Mrs Taylor now appeals against the judge's decision that the user of the registered land until 1984 was not as of right and that it was just to order rectification. Permission to appeal on the first issue was granted by Lloyd LJ but he refused permission to appeal on the issue of justice. Mrs Taylor has renewed her application for permission on that ground and we have heard argument on both points. The issue of locality does not arise for consideration on this appeal but it is a major issue in the appeal in Paddico (267) Ltd v Kirklees Metropolitan Council & Ors ("Paddico") which has been heard by the same constitution and which raises similar issues as to whether it is just to order rectification of a register on a s.14 application brought many years later by a purchaser of the registered land with a view to securing its development. At first instance Vos J ( EWHC 1606 (Ch)) expressed the view that delay in challenging the registration was a factor which weighed against rectification but was not likely to be conclusive.
User as of right
- The landowners' case at the inquiry was that fences had been maintained on the boundaries with housing and that signs had been erected so as to make it clear to the public that they should not trespass on to the registered land from the footpaths. The evidence from local inhabitants (as summarised in the Council's decision letter of 5th June 2001) was that they had regularly used the land for games and recreation and did not confine themselves to the footpaths. In doing so they had (they said) never been challenged nor did they recall seeing any signs saying that the fields were private property which they should not enter.
- By contrast, the landowners' witnesses gave evidence that signs were put up at strategic points on the perimeter of the land and at the edge of the footpaths. It is worth noting at this point that the evidence about the fencing of some of the boundaries relates to the period when the registered land continued to be grazed under a series of grazing agreements with local farmers. These continued from 1963 to 1979 although the evidence was that the land was grazed until 1980 or later by a Mr Crees.
- It is not really in dispute that these farmers faced serious (and increasing) difficulties in their use of the land due to the activities of local residents who cut wire fences marking the boundary between the registered land and their houses in order to access the registered land without having to walk to the nearest footpath entrance. These acts of vandalism and trespass (exacerbated by dogs being allowed to worry cattle) eventually made it impossible for the land to be used for grazing and after 1980 attempts to maintain the fences intact largely ceased. But the unlawful activities of these residents are not relied upon for the purposes of this appeal nor were they relied upon as part of Mrs Horne's evidence of user at the inquiry. The residents who provided evidence to support the s.13 application were all local inhabitants who gained access to the registered land via one or other of the footpaths.
- The issue for the inquiry and for Morgan J was whether the Curtis family had taken sufficient steps so as to effectively indicate that any use by local inhabitants of the registered land beyond the footpaths was not acquiesced in. At the inquiry this turned on the presence or visibility of the signs. The panel appear to have accepted (in the passage from the decision letter quoted above) the evidence of local residents that they did not see any signs. But Morgan J, having reviewed this and the evidence of the landowners' witnesses, made the following findings of fact:
"92. During the period up to and including 1980 when the land was grazed by the farmers, I find that there were many occasions on which members of the public broke down fences or created gaps in hedges in order to gain access to the fields. I also find that there were many occasions when an attempt was made, whether by members of the Curtis family or their employees or by the farmers, to make good those gaps. Repairs of the gaps in turn only led to further gaps being created or re-created by members of the public. I also find that it is more likely than not that fencing and hedges were broken down or penetrated after 1980. It seems likely that the number of gaps which would have existed in the period up to 1980 when there was stock on the land was significantly increased after the farmer left at the end of 1980. I am not able to find that very much, if anything, happened by way of repair of those gaps after 1980. In the period after 1980, there does not appear to have been stock on the land which would have required the gaps to be repaired. Further, in and after 1980, the aspirations of the Curtis family appeared to be to obtain planning permission for development of some part of the land and it became less important to repair the gaps.
93. I accept the farmers' evidence as to interference by members of the public, particularly by young people, with the stock on the land. I also accept the farmers' evidence that dogs worried the stock to a significant extent over the years. Of course, those matters ceased when the stock were removed at the end of 1980. I also accept the farmers' evidence and indeed the evidence of other witnesses, as to the degree of vandalism which occurred in relation to the water trough and some basic farm building and interference with hay bales on the land. Again, that interference would have ceased when the last farmer left at the end of 1980.
94. I now turn to the question of whether signs were erected and, if so, where they were erected, what they said and for what period of time they remained erected. I find without any hesitation that the Curtis family did erect and re-erect signs with reference to the total area of land which they owned. I find that this process of erecting and re-erecting signs continued for a period of years and was not a short lived affair. As to the location of the signs, there is sufficient evidence that there were clearly visible signs, and not just one or two of them, which would have brought home to a person using the registered land that the registered land was governed by such a sign. I also find that all signs which are relevant in this way would have made it clear that members of the public were being told they were not entitled to leave the footpaths. That was because the land apart from the footpaths was "private" or that the public were to "keep out" of that land or that their presence on the land would be "trespass". It is, I regret, not possible to be precise as to the period of time during which the Curtis family erected and re-erected signs. I find that signs were erected during the period that the land was grazed by the farmers. I also find on the balance of probabilities that the erection and re-erection of signs continued after the end of 1980. Maurice Curtis placed the purchase and erection of Mr Sackley's signs in the period 1985 to 1990. Mr Sackley placed the time when he constructed the signs as 1991 to 1992. I think it is more likely than not that both Maurice Curtis and Mr Sackley are wrong about these dates and that the time when Mr Sackley constructed the signs and when Barry Curtis erected those signs and when Maurice Curtis saw that they had been knocked down is earlier than they believe. However, I find that those signs were constructed and erected after 1980. I think it is more probable than not that the Curtis family's wish to have signs on the land became a more pressing wish after the land ceased to be used for grazing. After 1980, the land was virtually unused and the Curtis family could see that the public were eager to walk over the land. That seems to me to be a very good reason why the Curtis family would have wanted to erect signs to make it clear to the public that such user was not permitted. The signs must have been erected so as to prevent, or at least limit, the opportunity for members of the public to acquire rights over the land given that the Curtis family hoped that they would get planning permission for development of that land.
95. I also find that members of the Curtis family and employees did warn off members of the public who had left the footpath. Again, it is difficult to make precise findings as to the period of time during which such warning off occurred and the extent of the warning off. It is clear on the evidence that the warning off was largely ineffectual although it is possible that an individual who was caught on the land, away from the footpaths, by a forceful member of the Curtis family, might have turned tail and left the land on that occasion. However, individual warnings off of that kind do not seem to have done much to stem the flow of the public onto the land at other times. Further, even when some individuals were warned off, they did not heed the warning but abused the person giving the warning. I think it is more probable than not that there were warnings off after the end of 1980 as well as before. When grazing ceased at the end of 1980, if anyone was to warn off members of the public it could only have been members of the Curtis family and their employees. I find that for a period of time such warnings off did take place.
96. I find that there came a point when the Curtis family effectively gave up trying to keep the public off the land. The Curtis family gave up repairing the fences and the hedges. They gave up re-erecting the signs. They probably to all intents and purposes gave up warning off people from the land. I do not think that the Curtis family had given up by the end of 1980. I think they gave up later. If it is necessary to identify a time by which they had stopped taking action in relation to fences, signs and warnings off, I would, on the balance of probabilities, place that time as being shortly before the middle of the 1980's. For the sake of the later discussion, it does not matter if that state of affairs came about in 1983 or in 1984 or in 1985 and I will therefore describe my finding on this point as being that the state of affairs I have described came about in, say, 1984."
- The landowners' evidence about the signs was given by a number of witnesses. For reasons which will become apparent later in this judgment, it is not necessary for me to do more than to summarise what they said. Mr Weeden (who gave evidence and was cross-examined at the inquiry) said that signs were put up each side of footpath 92 leading to (but not on) the registered land stating that the land was private. A Mr Westmacott (who made a witness statement but died before the inquiry) referred to signs telling the public to keep off the land being erected "at various places around the perimeter of Mr Curtis' land". The signs were regularly pulled down and removed. Similar evidence was given by Mr Barry Curtis. He said that the signs were regularly vandalised soon after being put up but were then replaced. The signs were erected around the entirety of the land. Sometimes people walking on the land off the footpaths were also challenged.
- Mr Maurice Curtis also provided evidence that signs saying "private" and "keep out" were erected around different parts of the land where the public were gaining access to the field. He also spoke of them being taken down. His evidence was not specific as to the precise location of the notices but a Mr Quartermaine (who made a statement but did not give oral evidence to the inquiry) said that a notice was erected near to the footpath close to Markham Avenue advising the public not to trespass on the land either side of the footpath. A Mr Pashen also prepared a witness statement in October 1995 saying that signs were erected a couple of times a year at strategic points on the extremity of Mr Curtis' land adjacent to the rights of way. He attended the inquiry but was not cross-examined.
- The judge's reconciliation of the conflicts between this evidence and that of Mrs Horne's witnesses who had no recollection of seeing the signs turned in part on his discounting the accuracy of some of that evidence:
"90. As regards the evidence of people from the local area who appeared at the public inquiry, I do not get any sense that they were setting out to mislead the inquiry. I think that they were attempting to describe matters as they genuinely saw them. However, in some respects, I must be cautious about some of the things which they said. For example, if a witness said at the inquiry in 2000 that he or she had never seen a sign near to the registered land, it is entirely possible that such a witness may have forgotten that he or she had seen a sign say some 15 or 16 years earlier in around, say, 1984 or 1985. Fifteen or sixteen years of total absence of signs and absence of warning off by the landowners and absence of any difficulty of any kind might well persuade a witness that there had never been any signs or any warning off or matters of that kind. Memory in these respects can be very fallible. Although I do not suggest that the people from the local area who gave evidence at the inquiry attempted to mislead the inquiry, it is right to record that many of them were passionate in their belief that a great wrong would be done if the land was not registered as a town or village green because, they believed, a failure of the application to register the land would result in undesirable development of the land. That degree of commitment to a cause can unconsciously distort recollection. "
- The quality of this evidence is important when one comes to consider the issue of user as of right. This is because the appellant's case does not rely on the activities of residents who cut fences or pulled signs down but on those who gained access to the registered land by the footpaths and say that they have used the entirety of that land for lawful pastimes unaware of any objection by the landowners to such use. Mr George QC submits that the effect of the notices has to be considered in relation to these users. Not in relation to those who removed any signs that were there and must therefore have seen them.
- But the visibility or not of the signs in relation to what I shall refer to as lawful user also raises a more fundamental question of law as to whether and to what extent signs stating the landowner's opposition to the use of his land must ultimately come to the knowledge and attention of all users if the landowner has in fact taken all reasonable steps to achieve this. The point is encapsulated in paragraph 31 of Betterment's Re-amended claim form which states that:
"…the defendant apparently took the view that the landowners could not render user non-peaceable otherwise than by erecting signs which those who gave evidence of use admitted seeing. The claimant contests this and says (i) that the landowners did erect and re-erect signs; (ii) that that was enough to render subsequent user non-peaceable even though many users would not have seen the signs (because they were promptly torn down); and in any event (iii) that a landowner need not as a matter of law erect or re-erect signs in order to render user non-peaceable…"
- It is common ground on this appeal that, following the decision of the House of Lords in Sunningwell, registration of a town or village green on the basis of twenty or more years' user as of right depends upon showing that such user was nec vi, nec clam, nec precario. This test is traceable back to the common law and to the Prescription Act 1832. It has subsequently been applied in Regina (Beresford) v Sunderland City Council  1 AC 889 and, most recently, by the Supreme Court in Regina (Lewis) v Redcar and Cleveland Borough Council (No 2)  2 AC 70.
- Perhaps the most informative explanation of the content of this principle is that contained in the judgment of Lord Rodger of Earlsferry in Redcar (No 2):
"87. The basic meaning of that phrase is not in doubt. In R v Oxfordshire County Council, Ex p Sunningwell Parish Council  1 AC 335 Lord Hoffmann showed that the expression "as of right" in the Commons Registration Act 1965 was to be construed as meaning nec vi, nec clam, nec precario. The parties agree that the position must be the same under the Commons Act 2006. The Latin words need to be interpreted, however. Their sense is perhaps best captured by putting the point more positively: the user must be peaceable, open and not based on any licence from the owner of the land.
88. The opposite of "peaceable" user is user which is, to use the Latin expression, vi. But it would be wrong to suppose that user is "vi" only where it is gained by employing some kind of physical force against the owner. In Roman law, where the expression originated, in the relevant contexts vis was certainly not confined to physical force. It was enough if the person concerned had done something which he was not entitled to do after the owner had told him not to do it. In those circumstances what he did was done vi. See, for instance, D.220.127.116.11-9, Ulpian 70 ad edictum, commenting on the word as used in the interdict quod vi aut clam.
89. English law has interpreted the expression in much the same way. For instance, in Sturges v Bridgman (1879) 11 Ch D 852, 863, where the defendant claimed to have established an easement to make noise and vibration, Thesiger LJ said:
"Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec clam nec precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses." (Emphasis added.)
If the use continues despite the neighbour's protests and attempts to interrupt it, it is treated as being vi and so does not give rise to any right against him. Similarly, in Dalton v Henry Angus & Co (1881) 6 App Cas 740, 786, Bowen J equated user nec vi with peaceable user and commented that a neighbour,
"without actual interruption of the user, ought perhaps, on principle, to be enabled by continuous and unmistakeable protests to destroy its peaceable character, and so to annul one of the conditions upon which the presumption of right is raised: Eaton v Swansea Waterworks Co (1851) 17 QB 267."
The contrary view, that the only manner in which enjoyment of window lights could be defeated before the Prescription Act was by physical obstruction of the light, "was not the doctrine of the civil law, nor the interpretation which it placed upon the term 'non vi' …"
90. In short, as Gale on Easements, 18th ed (2008), para 4-84, suggests, user is only peaceable (nec vi) if it is neither violent nor contentious.
91. In R v Oxfordshire County Council, Ex p Sunningwell Parish Council  1 AC 335, 350-351, Lord Hoffmann found that the unifying element in the three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right. In the case of nec vi he said this was "because rights should not be acquired by the use of force". If, by "force", Lord Hoffmann meant only physical force, then I would respectfully disagree. Moreover, some resistance by the owner is an aspect of many cases where use is vi. Assuming, therefore, that there can be vis where the use is contentious, a perfectly adequate unifying element in the three vitiating circumstances is that they are all situations where it would be unacceptable for someone to acquire rights against the owner.
92. If, then, the inhabitants' use of land is to give rise to the possibility of an application being made for registration of a village green, it must have been peaceable and non-contentious. This is at least part of the reason why, as Lord Jauncey of Tullichettle observed, in the context of a claim to a public right of way, in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1993 SC (HL) 44, 47, "There is no principle of law which requires that there be conflict between the interest of users and those of a proprietor"."
- If the landowner displays his opposition to the use of his land by erecting a suitably worded sign which is visible to and is actually seen by the local inhabitants then their subsequent use of the land will not be peaceable. It is not necessary for Betterment to show that they used force or committed acts of damage to gain entry to the land. In the face of the signs it will be obvious that their acts of trespass are not acquiesced in. But in some cases (and this is one of them) the landowner's attempts to assert his opposition to the unauthorised use of his land may face the practical difficulty that a minority of users will not only defy his assertion of ownership but will also take active steps to remove or vandalise the signs which are put up. In these circumstances the failure of lawful users to see the signs may be attributable to their unlawful removal. But the appellant contends that in the absence of the signs, the use of the registered land by the majority of lawful users was peaceable.
- In Redcar (No 2) this issue did not arise but Lord Rodger expressed the principles involved in terms of there being actual knowledge of the landowner's objections to the use of his land. Similar statements can be found in Newnham v Willison  56 P & CR 8 (a claim to a right of way under the Prescription Act 1832) and Fairey v Southampton County Council  2 QB 439 where the issue was whether a path had been dedicated as a public highway under the Rights of Way Act 1932. In the latter case, Denning LJ (at p. 457) said that:
"If the landowner merely turned back one stranger on an isolated occasion, that would not, I think, be sufficient to make it clear to "the public" that they had no right to use it. He ought at least to make it clear to the villagers of Bossington, Houghton and Horsebridge. They were the members of the public most concerned to assert the right, because they were the persons who used the path. They knew - better than the landowner himself - how long they had used it. They were the persons to tell. It was no good the landowner speaking to a stranger who would know nothing of the public right and would not be concerned to assert it."
- The question of how far the landowner must go was considered by Pumfrey J in Smith v Brudenell-Bruce  2 P&CR 51 (a case about the acquisition of a private right of way by prescriptive user). He said that:
"It seems to me a user ceases to be user "as of right" if the circumstances are such as to indicate to the dominant owner, or to a reasonable man with the dominant owner's knowledge of the circumstances, that the servient owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action. A user is contentious when a servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user."
- This requires to be unpacked a little. Assuming that the notice is in terms sufficiently clear to convey to the average reader that any use of the relevant land by members of the public will be treated as a trespass then it will be irrelevant that individual users either misunderstood the notice or did not bother to read it. The inhabitants who encounter the sign have to be treated as reasonable people for these purposes to whom an objective standard of conduct and comprehension is applied. But the last sentence of this dictum suggests a wider test under which the owner who does everything reasonable to contest the user will thereby have made such user contentious regardless of the extent to which his opposition in fact comes to the notice of those who subsequently seek to establish the prescriptive right.
- In the case of a private right of way, the situation is much less likely to arise because any sign erected along the route of a potential right of way will almost certainly come to the attention of the dominant owner and the judgments in the right of way cases have to be read in this context. But in the case of a town or village green where the area of land will often be much larger, the problems of visibility may be more common.
- In R (Oxfordshire and Buckinghamshire Mental Health NHS Foundation Trust) v Oxfordshire County Council  LGR 631 HH Judge Waksman QC (sitting as a Judge of the High Court) considered Pumfrey J's dictum in Smith v Brudenell-Bruce in the context of an application to register a meadow adjoining the Warneford Hospital in Oxford as a town or village green. The land in question was crossed by a public footpath alongside which was a notice stating: "No public right of way". This was said to have prevented any public use of the meadow itself from being as of right.
- The judge held that the notice had not rendered such use contentious because, reasonably read, it had to be taken to refer to the user of the footpath rather than the meadow land generally. He was not therefore concerned with a case where the notice had been placed in an inaccessible position or where (as in the present case) the notices had been removed. But in his judgment he set out some general principles. Having referred to Smith v Brudenell-Bruce and to Redcar (No 2) he said this:
"22. From those cases I derive the following principles:
(1) The fundamental question is what the notice conveyed to the user. If the user knew or ought to have known that the owner was objecting to and contesting his use of the land, the notice is effective to render it contentious; absence of actual knowledge is therefore no answer if the reasonable user standing in the position of the actual user, and with his information, would have so known;
(2) Evidence of the actual response to the notice by the actual users is thus relevant to the question of actual knowledge and may also be relevant as to the putative knowledge of the reasonable user;
(3) The nature and content of the notice, and its effect, must be examined in context;
(4) The notice should be read in a common sense and not legalistic way;
(5) If it is suggested that the owner should have done something more than erect the actual notice, whether in terms of a different notice or some other act, the court should consider whether anything more would be proportionate to the user in question. Accordingly it will not always be necessary, for example, to fence off the area concerned or take legal proceedings against those who use it. The aim is to let the reasonable user know that the owner objects to and contests his user.
Accordingly, if a sign does not obviously contest the user in question or is ambiguous a relevant question will always be why the owner did not erect a sign or signs which did. I have not here incorporated the reference by Pumfrey J in Brudenell-Bruce's case to 'consistent with his means'. That is simply because, for my part, if what is actually necessary to put the user on notice happens to be beyond the means of an impoverished landowner, for example, it is hard to see why that should absolve him without more. As it happens, in this case, no point on means was taken by the authority in any event so it does not arise on the facts here."
- Morgan J applied those authorities to the facts found by him as follows:
"121. The parties did not dispute that the test identified by Pumfrey J in Smith v Brudenell-Bruce  2 P&CR 51 was a useful general test to be applied for this purpose. I will adapt that test for a case of a town or village green rather than a private easement. For the time being, I will leave in the reference to "means", notwithstanding the comment of Judge Waksman QC in R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust & Anr) v Oxfordshire County Council  LGR 631. So adapted, the test can be stated thus:
"Are the circumstances such as to indicate to the persons using the land, or to a reasonable person knowing the relevant circumstances, that the owner of the land actually objects and continues to object and will back his objection either by physical obstruction or by legal action? For this purpose, a user is contentious when the owner of the land is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user."
122. In my judgment, until (at least) say 1984, a reasonable person using the land and knowing the facts which I have found to have existed would appreciate that the landowner objected and continued to object to that use of the land and that the landowner would back the objection by physical obstruction to the extent possible. For the avoidance of doubt, I ought to say something more specific as to what a reasonable user of the land for sports or pastimes would have known about the breaking down or cutting of fences and hedges and about the notices erected by the landowners. I find that a reasonable user of the land would have known that the fences and hedges had been broken down or cut. Many users of the land came on to the land by means of gaps in the fences and hedges. It would have been clear enough to such a reasonable user of the land that one of the purposes of the fences and the hedges being there was to prevent the public accessing the land at those points. It would have been clear enough to a reasonable user of the land that the gaps had been created (against the wishes of the landowners) by persons wanting to gain access at such point. I also find that a reasonable user of the land in the period up to, say 1984, would have known that the landowners had erected signs which had been torn down and re-erected. As the various statements of the legal principle make clear, it is not necessary for the landowners to show that every single user of the land knew what a reasonable user would have known. I find that the landowner was doing everything, proportionately to the user, to contest the user and to endeavour to interrupt it. In answering the question in this way, nothing turns in this case on the means of the landowners and I need not consider in any more detail the point made by Judge Waksman QC."
- Mr George QC criticises this analysis on a number of grounds. He submits that for the landowner to make the use of his land contentious it is necessary for him to bring it home to at least the majority of users that he objects to their use of his land. His first point (as already indicated) is that the focus is wrong. Morgan J made no findings of fact that any of the witnesses called by Mrs Horne had broken down fences (as opposed to having seen gaps in the fencing) nor did he make findings about their actual knowledge. The fact that some residents had cut or broken down fences or had entered the registered land through gaps cut in the fences is also irrelevant he says to whether a town or village green has been established by peaceable user. Mrs Taylor does not rely upon user of that kind which she accepts, I think, is not peaceable user of the registered land. What she relies on is access via the footpaths by residents who said that they saw no signs. The issue is whether in relation to these users (who Mr Laurence is prepared to accept may have been in the majority) one is entitled to treat the landowner as objecting to their wider use of his land notwithstanding that they did not actually see the signs erected to that effect.
- The evidence of such users that they did not see any signs of the kind described by the landowners' witnesses is, Mr George submits, entirely consistent with the notices not surviving for very long and with any replacements faring no better. Morgan J failed to take this into account in considering, as he put it, the picture in the round. Nor did he properly apply the principle that the landowner must do everything proportionately to the user, to contest it. Mr George's submission was that, faced with the vandalism of the signs, the Curtis family could and should have circulated their objections to the use of the registered land either by placing a notice to that effect in a local newspaper or by distributing leaflets with a similar message to the residents of the neighbourhood.
- The test formulated by Morgan J in paragraph 121 of his judgment specifies two alternative approaches to the question of notice. If the landowner erects suitably worded signs and they are seen by would-be peaceable users of the land then it follows that their user will be contentious and not as of right. That is the easy case. The alternative is an objective test based on knowledge being attributed to a reasonable user of the land from what the landowner did in order to make his opposition known. If the steps taken to manifest that opposition are sufficient to bring it to the attention of any reasonable user of the land then it is irrelevant that particular users may not have been aware of it. The steps to be taken do not have to be fail safe in that regard. But they must be proportionate to the user which the landowner wishes to prevent.
- All the relevant authorities in this area proceed on the assumption that the landowner must take reasonable steps to bring his opposition to the actual notice of those using his land. Disputes about whether the wording of the notices was sufficient to make it clear that any use of the land was not consented to and would be regarded as a trespass would be irrelevant if the landowner did not have to make his position known. They assume that some process of communication is necessary. If the landowner keeps his opposition to himself and makes no outward attempt to prevent the unauthorised use of his land he may be taken to have acquiesced.
- It is therefore important to read the tests set out by Pumfrey J and Judge Waksman as directed to what the landowner in any given case will be required to do in order to manifest his objections to the use of his land. What Judge Waksman refers to as the putative knowledge of the reasonable user means (as he explains) what the reasonable man standing in the position of the actual user should have realised. It does not attribute knowledge to the reasonable user which the actual user walking over the land at the relevant time would not have had. Users of the land are therefore treated as more perceptive than they might actually have been but they are not deemed to have seen things which were not there.
- The essential criticism of the judge's analysis at paragraph 122 is that it treats the reasonable user of the land as being in possession of knowledge which the actual users who gave evidence in support of the s.13 application said they did not have. As mentioned earlier, the judge has not rejected that evidence or made any finding that they did see or were aware of the warning signs. He says in paragraph 122 that it is not necessary for the landowners to show that every single user of the land knew what the reasonable user would have known. And he seems to have relied on this so as to make it unnecessary to decide whether the signs on the fences were in fact seen by what I have called the lawful users of the land.
- I agree with the judge that the landowner is not required to do the impossible. His response must be commensurate with the scale of the problem he is faced with. Evidence from some local inhabitants gaining access to the land via the footpaths that they did not see the signs is not therefore fatal to the landowner's case on whether the user was as of right. But it will in most cases be highly relevant evidence as to whether the landowner has done enough to comply with what amounts to the giving of reasonable notice in the particular circumstances of that case. If most peaceable users never see any signs the court has to ask whether that is because none was erected or because any that were erected were too badly positioned to give reasonable notice of the landowner's objection to the continued use of his land.
- It is not a ground of appeal that the judge's findings of primary fact were not open to him. Mr George submits that although a re-hearing rather than a review, Morgan J should nonetheless have given due weight to the findings made by the 2000 inquiry. I do not accept that submission. The judge was entitled to approach the matter de novo in the manner indicated by Lightman J in his judgment on the preliminary issues. This is not a case where there was substantial new evidence and it was never the residents' case even at the inquiry hearing that the landowners' evidence about the signs should be rejected. The Council's decision letter goes no further than to accept that the applicant's witnesses did not recall seeing any of the signs when they used the land.
- But Morgan J's treatment of the landowners' evidence is not inconsistent with this and is simply an objective summary of the evidence that was produced at the inquiry. On the basis of this material it was open to him to make the findings set out in paragraphs 92-96 of his judgment even though a number of the witnesses gave no precise evidence about the location of the signs and only one or two referred to the signs being placed adjacent to the footpaths.
- Similarly there can be no issue about the wording of the signs. They were clearly sufficient to indicate to the reasonable observer that the landowner wished people to keep to the footpaths and not to trespass on the registered land.
- In these circumstances the position in relation to the maintenance of the fences is, I think, secondary and not essential to the outcome of the appeal. The fencing was obviously important while the land continued to be used for grazing but, as Mr George points out, it did not really affect local inhabitants who obtained access to the registered land via the footpaths. I also accept his submissions that the occasions on which a member of the Curtis family or one of their employees actually challenged someone using the land were too infrequent to be treated as sufficient in themselves to make the local inhabitants' user of the land contentious.
- The judge made no findings about actual knowledge on the part of local residents. To do so would have required him to disbelieve the evidence given by Mrs Horne's witnesses which the Council appears to have accepted. The highest that he put it was to express caution about their evidence in the passage quoted above from paragraph 90 of his judgment.
- The s.14 application therefore turned on the second part of the judge's test: i.e. whether a reasonable person knowing the relevant circumstances would conclude that the landowner was objecting to the use of his land. Consistently with my view of the authorities, knowledge of the relevant circumstances should be confined to what was visible to any reasonable person using the land on a regular basis at the relevant time. This involves a consideration of whether the findings made by the judge in paragraph 94 of his judgment are sufficient to establish that the Curtis family did enough to make their opposition known to the world at large including, in particular, lawful users of the land. The judge has found that the signs were clearly visible and sufficient in number to have made it clear to users of the registered land that they should keep to the footpaths; that the land was private and that their use of it would be a trespass. These signs, if seen, would obviously have made the use of the registered land contentious. The judge was, I think, right to reject the submission made to him that the landowners should have taken legal proceedings in order to have made their position known. But that still leaves the evidence of the Mrs Horne's witnesses that they did not see the signs which Mr George relies on as rebutting the judge's finding that the steps taken by the Curtis family to make their position known were reasonable.
- It seems to me that the only possible reconciliation between the judge's findings of primary fact and the recollections of Mrs Horne's witnesses is that the signs were vandalised and removed on a regular basis shortly after they were erected. The issue between the parties is therefore a relatively narrow one which is whether the Curtis family had, in the circumstances, done enough by putting up and from time to time replacing the signs or whether they should have taken other steps such as the notices in the local papers or the leaflets suggested by Mr George.
- It seems to me that there is a world of difference between the case where the landowner simply fails to put up enough signs or puts them in the wrong place and a case such as this one where perfectly reasonable attempts to advertise his opposition to the use of his land is met with acts of criminal damage and theft. The judge has found that if left in place, the signs were sufficient in number and location; and were clearly enough worded; so as to bring to the actual knowledge of any reasonable user of the land that their use of it was contentious. In these circumstances is the landowner to be treated as having acquiesced in that user merely because a section of the community (I am prepared to assume the minority) were prepared to take direct action to remove the signs?
- One of Betterment's pleaded defences which was relied on by Mr Laurence as part of his submissions on this point is that to satisfy the statutory definition of a town or village green in s.22(1) of the 1965 Act it is necessary to show that all of the inhabitants of the relevant locality have used the land for lawful sports or pastimes. Unlawful use by some (by, for example, cutting down fences to gain entry or by removing signs) therefore disqualifies the otherwise lawful use by other inhabitants from forming the basis of an application for registration.
- I would approach this question in a different way. What I think s.22(1) does do is to require the registration authority (and, on a s.14 application, the Court) to look at the evidence of use by the inhabitants of the locality as a whole. Mr George seeks to distance his clients from the unlawful activities of the minority by saying that evidence of their user of the land was not relied on as the basis of the s.13 registration. But the inquiry panel was not entitled in my view to shut its eyes to what some residents had done to the fences and to the signs in considering whether the landowner was to be taken to have acquiesced in the user. The evidence before them and before Morgan J was that inhabitants of the locality who were seeking to obtain registration of the land as a town or village green had seen the signs; had understood what their meaning and purpose was; and, for that reason, had removed them. The landowners had therefore made their opposition known to the local inhabitants even though, by the actions of some members of that class, the signs may have disappeared within a few days of being erected and may not therefore have been seen by many users of the land.
- It would, in my view, be a direct infringement of the principle (referred to earlier in the judgment of Lord Rodger on Redcar (No. 2)) that rights of property cannot be acquired by force or by unlawful means for the Court to ignore the landowner's clear and repeated demonstration of his opposition to the use of the land simply because it was obliterated by the unlawful acts of local inhabitants. Mrs Taylor is not entitled in effect to rely upon this conduct by limiting her evidence to that of users whose ignorance of the signs was due only to their removal in this way. If the steps taken would otherwise have been sufficient to notify local inhabitants that they should not trespass on the land then the landowner has, I believe, done all that is required to make users of his land contentious.
- It follows from this that the Curtis family were not required to take other steps such as advertising their opposition in order to rebut any presumption of acquiescence. In my view, the judge was correct to hold that there was not user as of right for the requisite twenty years.
The works site
- It is not strictly necessary to decide this point but I can set out quite shortly why I consider that the judge was entitled to find that public user of the works site had been disputed so as to stop time running under s.22(1).
- As the judge found, the works were carried out between December 1979 and April 1982. They necessitated the excavation of a wide channel for the new drains and the associated works and car park took up much of the works site. Although these works in themselves made movement across a large part of the site impossible, Mr Laurence relies in particular on the fact that the whole site was fenced off for several months at least during the construction period. There was conflicting evidence about this at the inquiry. A Mr Garman said that the site had been fenced off. A Mr Males produced a witness statement saying that there had not been fencing around the whole site.
- Both Mr Garman and Mr Males gave evidence and were cross-examined before Morgan J. The judge also had evidence of a footpath diversion order being made in respect of footpath 79 and (perhaps most crucially) of a drawing of the site prepared by the consulting engineers dated April 1980 which indicates a continuous line of fencing along the boundary of the works site. The judge analysed this evidence as follows:
"147. Along the northern end of the site starting at Markham Avenue in the east and continuing for some 110 metres there was a concrete post and close boarded fence. There was considerable controversy as to the presence of a fence on the western boundary of the works site. I find that, in December 1979, there was erected a fence comprising wooden posts and strained wire. The northern end of this fence was at the western end of the concrete post and close boarded fence. The southern end of this fence was the field boundary. When the engineers drew their plan in April 1980, this western fence was described as an "existing fence". Indeed, one of the purposes of the plan was to show that that existing fence was to be removed, not for the entirety of its length but a section of it would be removed towards the southern end of the works site. The April 1980 plan also showed an intention to erect a new fence from the southern end of the remaining posts and strained wire fence. The new fence would run in an easterly direction and then turn generally northwards until it reached the northern boundary of the field. This new fence was to be constructed of concrete posts and strained barbed wire. I am not able to make a finding as to whether the new fence was ever constructed, in or after April 1980. However, I do find that for a period of time the western fence ran from the northern point where it joined concrete post and close boarded fence to a southern point at the field boundary. I find that that western fence remained in position for several months after December 1979. The plan would suggest that it remained until, at least, April 1980. I accept the evidence given on behalf of Betterment that this western fence was cut or interfered with from time to time and was repaired. I also find that the presence of this western fence for that period prevented use of, certainly non-contentious use of, that part of the registered land which lay to the east of the western fence.
148. In case it matters, I can also say that I accept the evidence of the witnesses on behalf of Betterment that this western fence remained in position from its original northern point to where it joined the original footpath for virtually all of the time that the works site was in use. I also find that throughout the period from December 1979 to the Spring of 1982, a substantial part of the works site was not available for use for sports and pastime because a part was used for the residents car park (not a use for sports and pastimes), as the site of active construction works, for use as a spoil heap and for use for storing or parking plant and vehicles.
149. It follows from the above findings that for a period from December 1979 until at least April 1980, the entirety of the application site which was to the east of what I have described as the western fence of the works site was cut off and not available for use for sports and pastimes, alternatively not available for non-contentious use for sports and pastimes."
- As originally formulated, there was no challenge in the notice of appeal to these findings of fact. But Mr George has now produced an amendment to the notice to the effect that the judge was wrong to find that the western fence remained in position subject to repair from December 1979 until April 1980. This finding is said to have been against the weight of the evidence and involved rejecting the evidence of Mr Males which the inquiry panel had relied on for their own finding that there had been no significant disruption of user caused by the drainage scheme.
- Mr Laurence makes the point that Mr Males' evidence to the inquiry was given without the benefit of the plan but the short answer to this ground of appeal is that the question of whether the works site was completely fenced off between 1979 and 1980 was a straightforward question of fact for the judge on which he heard all the relevant evidence and reached a conclusion. It cannot be said that his decision on this point was based on no evidence or was perverse and, in my view, there is no basis for this Court to interfere with the finding which he made.
- The only real issue about the works site is whether the physical disruption to public use caused by the fencing off of the site for about four months was sufficient to interrupt user of that land for the purposes of s.22. We were referred by Mr George to a transcript of the decision of the Court of Appeal in Goodey v Everett (1880) which was an appeal from an order of Fry J declaring that land in the village of Chappel was a village green. At some point part of the land was occupied by a railway company for a period of four years but thereafter use of the land as a village green resumed. The report contains no indication of how long the recreational use of the land continued either before or after such disruption or of what effect the use by the railway had upon it. The report does not therefore assist on the issue which the judge had to decide.
- It seems to me that for the actions of a third party to be taken into account there must be a physical ouster of local inhabitants from the land and the disruption must be inconsistent with the continued use of the land as a village green. If the two competing uses can accommodate each other (as they did in Redcar (No 2)) then time does not cease to run. But here the exclusion was complete and the use of the land for the drainage scheme was not compatible with it remaining in use as a village green. The judge was therefore correct in my view to hold that there had not been twenty years' user of the works site.
- In some ways this has become the most significant aspect of the two appeals which we have heard because it raises some fundamental questions as to what competing factors may be sufficient to prevent the rectification of the register under s.14 when the court has found that the s.13 registration should never have been made.
- It is clear from s.14 that an error in the original registration is not enough in itself to justify the rectification of the register. The court must also reach a positive conclusion that it would be just to do so. Mr George submitted that this put the burden of proof on the s.14 applicant to justify rectification but I am not convinced that this is likely to be of much assistance to a judge when deciding whether to make the order. The reality is that he has to balance the landowner's claim to free his land from rights over it which should never have been granted against any countervailing considerations of prejudice which the local inhabitants are entitled to rely upon to justify the maintenance of the register in its existing form.
- Both in this case and in Paddico the court recognised the strength of the applicant's case that rights over land which had not been established and which should not have been registered ought in principle to be removed. This is an inevitable starting point in these cases. The position is perhaps particularly stark in the present case where the original landowners took all necessary and reasonable steps to make their opposition known and the user relied on by the s.13 applicants was not user as of right. But even in Paddico where the judge held that the application should have failed on grounds of locality there was still no lawful basis for the registration that was made.
- It goes almost without saying that for someone to be deprived of the unrestricted use of his property by a process which has no lawful basis requires a considerable justification if it can be justified at all and, in this regard, I have in mind Mr Laurence's submissions (which I accept) that the landowner's rights under Article 1 of the First Protocol to the Human Rights Convention are engaged by the degree of control which registration imposes upon his land.
- Had the challenge proceeded by way of judicial review, overriding considerations of justice based on the removal of unlawfully registered rights are unlikely to have prevailed. We therefore have to ask whether Parliament can have intended by the closing provisions of s.14 to have brought into account interests which in another context would have been deemed to be irrelevant.
- The considerations which Mr George relies on as going to justice can be grouped broadly into two categories. The first are specific to the status of the s.14 applicant and the way in which the s.14 application has been conducted. They include the fact that Betterment is a subsequent purchaser and the delay in bringing the application. The second group relates to the position of the local inhabitants themselves. There is also an issue (raised by Carnwath LJ during the course of the hearing) about good administration which really straddles both categories.
- Mr George began by submitting that the court should have taken into account matters such as the reasons why the judge considered that the s.13 registration should not have been made and the manner in which the case was run below. I think that both of these points are irrelevant to the question of justice. The rider to s.14 is directed in my view to the effect which rectification will have on relevant interests. Not to the reasons why the court's jurisdiction has become exercisable.
- Reliance is also placed on the fact that Betterment is a subsequent purchaser of the registered land and bought with knowledge of its status as a town or village green. The evidence before the judge was that it paid a price which reflected the hope value of future development but was obviously much less than its value would have been had no s.13 registration been made. Unlike the Curtis family, it has therefore suffered no financial loss as a result of the registration and only stands to gain financially if the register is rectified and planning permission for development is obtained.
- The judge declined to separate the interests of Betterment in this regard from those of the original owners. Betterment should, he held, be treated as having stepped into the shoes of the Curtis family and their position equated for the purpose of considering the justice of the case. I think that the change in ownership is a relevant factor but is not likely to be a significant one. Although the primary loss caused by the invalid registration was to the Curtis family, it would, I think, be wrong to ignore or lessen the importance to be attached to Betterment's right to exercise full legal ownership of its land merely because it was able to acquire it at a price which reflected its registered status. The maintenance of the register will still amount to an unjustified interference with its legal rights.
- The next issue is delay. In this case the judicial review proceedings were commenced soon after Dorset County Council notified the Curtis family of its decision to register. But there was a period of four years between the discontinuance of those proceedings and the issue by Betterment of the s.14 application in December 2005. Mr Laurence told us that much of this time was taken up assembling the necessary papers, many of which had to be obtained from the County Council. This was complicated and took a long time. Judging by the way in which most of these cases seem to be conducted I can readily appreciate that but I think that Morgan J was fully entitled to conclude (as he did in paragraph 189 of his judgment) that Betterment had not treated the litigation as a matter of urgency not least because it had still to obtain planning permission for any development of the land.
- The judge's view, however, was that none of this mattered. He said in terms that the mere passage of time was immaterial, one way or the other, to the justice of rectifying the register. Mr George submits that this cannot be right and he referred us to the later decision of Morgan J in Piper Land Development (Solihull) Ltd v The Rhondda Cynon Taf County Borough Council  EWHC 3591 (Ch) where he seems to accept that delay between the date of registration and the issue of the s.14 application would be material to the court's consideration of the justice of ordering rectification. In Paddico Vos J took the same view.
- It seems to me that delay is a relevant factor but is unlikely to be determinative of the outcome unless either it has resulted in some form of relevant prejudice or it brings into account the more general consideration of good administration which I referred to earlier. As Mr Laurence pointed out, there is no time limit for applications under s.14 and the courts should, I think, refrain from seeking to impose what would be an arbitrary time limit absent any discernable impact on the respondents or any other interested parties. There might, I suppose, be cases where the delay was so long (perhaps decades) that some prejudice could be inferred. But this is not that kind of case and even in such a case it would still be necessary in my opinion to identify what the interests prejudiced actually were.
- One possible argument is that the interests of good administration are served by maintaining the register in place in the absence of a prompt challenge to its contents. The fact that the register is a public document which is likely to form the basis of other decisions about planning, development and the purchase of land dictates that it should be able to be relied upon for what it states. Considerations of this kind are referred to in the judgment of the Court of Appeal in R v Newbury District Council ex parte Chieveley Parish Council (1998) PLRC 51 where the court declined to quash a grant of planning permission because of the applicant's undue delay in seeking judicial review. Pill LJ (at p. 66c) said that:
"The lapse of time between the grant of outline permission and the application for judicial review approached three years. Notwithstanding the points made on behalf of the Parish Council, including the fact that the permission was outline only and would not be implemented without approval of reserved matters, that lapse of time did in my judgment constitute 'undue delay' within the meaning of that term in s.31(6) of the 1981 Act. I agree with the approach of Simon Brown J in R v Exeter City Council, ex parte J L Thomas & Co Ltd  1 QB 471,  1 All ER 413, page 484 of the former report:
"I cannot sufficiently stress the crucial need in cases of this kind of the significance to proceed with the greatest possible urgency, giving moreover to those affected the earliest warning of an intention to proceed. In this connection it should be remembered that there is conspicuously absent from the legislation any right to appeal in fact or law from a planning authority's grant of planning permission. And even when a right of challenge is given — the right of statutory application under section 245 [of the Town and Country Planning Act 1971] to challenge a ministerial decision — it must be exercised within six weeks. Only rarely is it appropriate to seek judicial review of a section 29 permission (section 70 of the 1990 Act); rarer still will be the occasions when the court grants relief unless the applicant has proceeded with the greatest possible celerity."
A reason for that approach is that a planning permission is contained in a public document which potentially confers benefit on the land to which it relates. Important decisions may be taken by public bodies and private bodies and individuals upon the strength of it, both in relation to the land itself and in the neighbourhood. A chain of events may be set in motion. It is important to good administration that, once granted, a permission should not readily be invalidated. As confirmed in the House of Lords, s.31(6) recognises that there is an interest in good administration independent of hardship, or prejudice to the rights of third parties. The court is entitled to look at the interest in good administration independently of those other matters. It is important that citizens know where they stand and how they can order their affairs in the light of the relevant decision (Caswell v Dairy Produce Quota Tribunal for England and Wales  2 AC 738,  2 All ER 434). In my judgment, weight should be given to this aspect of the case notwithstanding the absence of convincing evidence that the applicants for planning permission have been prejudiced by the delay."
- But this judgment has to be read against the background of s.31(6) of what is now the Senior Courts Act 1981 which expressly empowers the court to refuse relief by way of judicial review if there is undue delay in the making of the application which is likely to cause substantial hardship or prejudice to the rights of any person or would be detrimental to good administration.
- It seems to me that while delay is a relevant factor, the broader test of justice under s.14 means that the consequences of rectification still have to be balanced against the obvious interests of the landowner in obtaining the vindication of his own legal rights. Unlike the planning cases a s.14 application is not simply a legal challenge to an administrative decision. Its purpose is to enable the landowner to re-establish his property rights free from the adverse registration which affects them. It is therefore not surprising that Parliament has imposed no limit on the court's powers by reference to undue delay and has merely required it to consider whether it would be just to make the order.
- For this reason, delay will not, in my view, be a barrier to rectification unless there is material before the court to show that other public and private decisions are likely to have been taken on the basis of the existing register which have operated to the significant prejudice of the respondents or other relevant interests. One might well have a case in which other land has been developed or major land transactions carried through on the strength of the register. But in this case none of those issues arises except for the position of Mr and Mrs Thomson who purchased Markham House in Wyke Road on 20th December 2001.
- Their evidence to the judge was that they had bought the house because it overlooked the registered land which they found very attractive. They were told by the vendor that it was a registered village green and that the land could never be built on. Mrs Thompson said she was also re-assured by the designation of the land as open space in the local plan. However, the judge took the view that the position as regards planning was not as reassuring as she thought it was. This included her failure to appreciate that the land to the west of the registered land was not the subject of registration as a town or village green and therefore remained subject to possible changes in planning policy. The judge went on:
"182. If as a result of this hearing the registration of the land as a village green is cancelled, it does not by any means follow that the land will be developed. The planning prospects for the land that was once registered as a green as well as the land to the west will be the subject of the planning policies of the local authority and any challenge by the landowner to those policies. Certainly, the removal of the registration is the removal of one further barrier to development. I can well understand that Mr and Mrs Thompson will now be concerned that the prospect of development will be bought nearer if the registration as a green is cancelled. Their thinking will no doubt be influenced by all that they have learned in the period since 2001 and by the persistence shown by Betterment in seeking this rectification, as well as the fact of rectification itself.
183. Plainly, Mr and Mrs Thompson would greatly prefer that rectification was not ordered. Indeed, many people living in the vicinity of the registered green would prefer the registration to remain, both as a curb on development and as conferring on certain local residents rights to use the green. However, I doubt if the circumstances in which Mr and Mrs Thompson bought Markham house at the end of 2001 places them in a situation that is much different from all the other residents who want to see the registration maintained. Mrs Thompson also attached importance to the ability to walk to Markham House from the centre of Weymouth across the registered land. As footpaths cross the registered land, that ability will not be taken away if the registration of the land is cancelled.
184. It is also right, when considering the justice of the case, as between the landowners and Mr and Mrs Thompson, to record that the landowners were not in anyway responsible for Mr and Mrs Thompson's state of mind, whatever it was, when they acquired Markham House. The landowners did not make any representation or promise as to the future use of the land and, indeed, nobody asked the landowners for any information on that score."
- In my view the judge was right to regard the position of Mr and Mrs Thompson as little different from any other local residents who have bought houses in the area in the late decade or so. What they will lose by the rectification of the register is not the open space comprised in the registered land but their right to unrestricted use of it for recreational purposes. Since they were never entitled to those rights no injustice can follow from their removal. If what the local inhabitants value is (like Mr and Mrs Thompson) an open outlook from their windows then that can be safeguarded by the planning policies of the local authority. The purpose of s.13 is not to provide some additional form of planning control.
- The judge was therefore entitled in my view to conclude that it would be just to order rectification in this case. I would therefore grant permission to Mrs Taylor to appeal on the issue of justice but would dismiss this appeal.
Lord Justice Sullivan :
- I am in complete agreement with Patten LJ on the "User as of Right" and "The works site" issues. I also agree with his conclusion on the "Justice" issue: that the judge was entitled to conclude that it would be just to order rectification in this case.
- I do not share Patten LJ's view as to the likely significance of two of the competing factors – change of ownership and delay – in his analysis of the "Justice" issue. I endorse his view that both factors are relevant, and differ only as to their potential significance. This difference of emphasis does not affect the outcome of this appeal.
- Patten LJ considers that the change in ownership, while relevant, is not likely to be a significant factor (paragraph 80). It seems to me that in any consideration of the justice of rectification, the fact that an applicant for rectification, knowing the status of the land and the uncertainty of litigation, has deliberately chosen to take a commercial risk in purchasing the land, is capable of being a significant factor in the balancing exercise. A party who deliberately takes a chance and "buys litigation" cannot realistically complain of injustice if his speculation is unsuccessful.
- So far as delay is concerned, I agree with Patten LJ that in most cases it is unlikely to be determinative of the outcome unless either it has resulted in some form of relevant prejudice or it brings into account the more general considerations of good administration to which Patten LJ has referred (paragraph 83). Patten LJ acknowledges that there might be cases "where the delay was so long (perhaps decades) that some prejudice could be inferred", but considers that even in such cases it would be necessary to identify what the interests actually prejudiced were (ibid).
- For the reasons set out in paragraph 84 of Patten LJ's judgment, there is, in my view, a strong public interest in upholding the register in the absence of a prompt challenge to its contents. Against this background, there will be exceptional cases where the delay is so long that prejudice to good administration can properly be inferred. Evidence of actual prejudice of the kind referred to in paragraph 87 of Patten LJ's judgment will reinforce the case against rectification, but if there has been very lengthy delay prejudice can properly be inferred even in the absence of any such evidence. A delay of decades would certainly be a sufficiently lengthy delay for this purpose, but I would go further and say that a delay of a decade – well beyond any normal limitation period – would be capable of being a delay that was so long that prejudice could be inferred.
- My view as to the potential significance of these two factors does not affect the outcome of this case. While I take the view that Betterment would not suffer any significant injustice if rectification was refused, the judicial review proceedings were commenced promptly by the landowners and were discontinued upon the basis that a section 14 application would be made instead (paragraph 16). After discontinuance there was a delay of just over four years before Betterment made the section 14 application in December 2005, but this is not one of those exceptional cases where the delay was so long that prejudice to any interest, including good administration, can properly be inferred in the absence of any evidence of actual prejudice.
- For these reasons, I too would dismiss this appeal.
Lord Justice Carnwath :
User as of right
- I also agree with Patten LJ on this issue, and would accordingly uphold the judge's conclusion.
- I was initially troubled by the apparent conflict between his findings and those reached by the Council after the earlier inquiry, taking account also of Mr Laurence's concession that the majority of user was "peaceable". It is one thing to say with the judge (para 123) that not "every single user" needs to have known of the owners' objection, but the concession arguably went further than that.
- It is clear from the transcript and the carefully reasoned decision-letter that the informal inquiry conducted by the Council at that time was unusually thorough. Mr George fairly makes the point that the owner's case was primarily directed to establishing whether the user was confined to members of the local area, and less to seeking in cross-examination to undermine the evidence of those many users who claimed to have seen no signs. That raises the question how far it was open to the judge, in the rectification hearing, not having heard the witnesses, to reinterpret their evidence.
- The answer in my view lies in the different characters of the two sets of proceedings. The former, however conscientiously conducted, remained administrative in nature. The latter was the first independent, article 6-compliant, investigation. The relationship between the two was explained by Lightman J in the preliminary proceedings in this case (quoted by Patten LJ at para 18). The procedure, including the use to be made of the earlier evidence, was a matter for the judge. In this case it was agreed that there should be no limitations on the availability of the earlier evidence. But the judge was not bound by the form in which it had been presented or cross-examined, nor by the authority's conclusions on it. It was open to the parties at the hearing before him to seek to supplement the evidence if they thought necessary. Subject to that it was his task to draw such inferences from the totality of the evidence as he thought appropriate.
- On that basis, in my view, his conclusions show no error of law or approach. The claimants had to establish peaceable user for the whole of the period 1977 to 1997. There was no real issue about the last thirteen years, that is from about 1984. It was only in the first few years that there was a direct conflict. The judge was entitled to accept as convincing the evidence (both current and from the earlier inquiry) that in the earlier period the owners had erected signs sufficient to inform regular users of their objections (para 94-6). That was supported by independent witnesses, and documentary records of the making of signs. Equally, he was entitled to give weight to the fact that the contrary evidence was given after 15 or 16 years of unhindered use, and to attribute the difference to the dimming of memories, or even "unconscious distortion" (para 90). Nor was that conclusion inconsistent with acceptance that, taking the relevant 20-year period as a whole, the majority of the use, in terms of both numbers and years, was peaceable. Those were conclusions reasonably open to him on the evidence, and show no error of approach such as to justify intervention by this court.
- On this issue I agree that the judge was entitled to conclude that it would be just to order rectification under section 14. For reasons which I expand on in the Paddico case, I take a similar view of the relevant factors to that of Sullivan LJ. I would therefore respectfully adopt his reasoning, in preference to that of Patten LJ, but with the same result.
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