In the early days of commons and greens registration, under the Commons Registration Act 1965, disputed cases were determined by the Commons Commissioners. An appeal against a Commissioner’s decision lay to the High Court by way of case stated — and the case would be listed, not primarily by the names of the parties involved, but by the name of the disputed land. So some of the classic challenges from that time are known by the commons under dispute: for example Re Britford Common, Re Chewton Common, and Re Box Hill (a case which led to the cancellation of the registration of many commons, until eventually overturned a decade later by the House of Lords).

Challenges in court to the registration of greens on the basis of 20 years’ use are made under a different provision of the 1965 Act, and are brought against the commons registration authority which makes the decision, rather than a Commons Commissioner (whose office was abolished in 2010). So the cases are listed by the parties to the dispute, rather than the name of the green. Which is a pity, because the Supreme Court (and before it, the judicial committee of the House of Lords) has now opined on a series of green registration cases, where the greens (or claimed greens) are a roll-call of the evolution of case law on registration since the turn of the millennium:

  • Sunningwell Glebe (R v Oxfordshire County Council and others, ex parte Sunningwell Parish Council)
  • The Sports Arena, Washington (R v City of Sunderland ex parte Beresford)
  • The Trap Grounds (Oxfordshire County Council v Oxford City Council and Robinson)
  • Coatham Common (R (on the applicant of Lewis) v Redcar and Cleveland Borough Council)
  • Curtis Fields (Mrs Gill Taylor (on behalf of the Society for the Protection of Markham and Little Francis) v Betterment Properties (Weymouth) Ltd)
  • Clayton Fields (Adamson and others v Paddico (267) Ltd)

Six judgments in the highest court of the land, on such an obscure area of law as town or village greens, in the space of thirteen years, is quite remarkable: and there are two more on the way later this year. Each case washed the tide of law a little higher in favour of those who sought to register and protect land as greens. Until today. For the greens at Markham and Little Francis and at Clayton Fields are no more, and will be deregistered, and almost certainly developed (development was the motivation of the parties opposed to registration in both cases).

By way of explanation, it should first be said that section 14(b) of the 1965 Act provides that, once a registration authority has decided to register land as a town or village green on the basis of 20 years’ use, an application may be made to the High Court to ‘rectify’ the register, if “it appears to the court that no amendment or a different amendment ought to have been made…and…the court deems it just to rectify the register.” That is a very wide discretion afforded to the court to revisit the decision made by the registration authority, and to substitute its own decision for that of the authority. What is more, such a challenge can be brought at any time, unlike a claim for judicial review of a local authority’s decision, which must be brought promptly, and in any case, within three months of the decision (six weeks in planning cases). This provision in s.14 achieves greater prominence because, although greens are now registered under section 15 of the Commons Act 2006, a saving in the repeal of the relevant bits of the 1965 Act (see art.4(1)(b) of the Commons Act 2006 (Commencement No. 2, Transitional Provisions and Savings) (England) Order 2007 and art.3(6) of the Commons Act 2006 (Commencement No. 4 and Savings) (England) Order 2008) preserves the right to challenge such a registration under the old s.14, even (so far as registrations made before 2008) in the areas pioneering the full implementation of Part 1 of the 2006 Act.

So it is unsurprising that several owners of land registered (usually at any time from the 1990s onwards) as a green on the basis of 20 years’ use have sought to overturn the decision to register, often at some temporal remove. In the two cases before the Supreme Court, the developers had acquired the land from the owners at the time of registration, openly done at a hefty discount, hoping to secure deregistration under s.14, and thereby release the land for lucrative development (similar development plans had been the chief motivation for the local communities to seek registration in the first place). The question for the court was whether, if the court took the view that the original decision to register was wrong, was it ‘just’ to give effect to that view by ordering the deregistration of the land so long after it had been registered?

In Betterment, the application to register was made in 1994 and the land was registered in 2001: the s.14 challenge was effectively made in 2005; in Paddico, the application dated from 1994 and the decision was made in 1997: the challenge was brought in 2010. In both cases, unproductive steps had been taken at earlier dates to challenge the registrations.

In its judgment, Lady Hale for the court considered that there were three principles which were relevant to the question: “(1) with the principles applicable to public law claims; (2) with the principles applicable to private law claims where Parliament has provided a limitation period; and (3) with the principles applicable to private property law claims where Parliament has not provided a limitation period, as embodied in the equitable doctrine of laches.” ‘Laches’ here refers to the defence that a plaintiff has ‘slept on his rights’ and should have acted sooner to protect his interests.

On public law principles, the court struggled with whether it could ever be right to uphold a bad decision to register land as a green: if the decision was faulty, wasn’t it always desirable to quash it, even if there had been a delay in bringing a challenge, provided the court had discretion to do so (as it did here)? Parliament had not seen fit to impose a deadline on bringing a challenge under s.14 [although it’s far from clear that Parliament ever contemplated 20 years’ use applications to register greens following the initial wave of registrations in the late 1960s]. So the court turned to the doctrine of laches, which, it said, “generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice.” The court accepted that the developers had full knowledge of the registrations throughout, but observed that the developer was still substantially disadvantaged as a result. There was no acquiescence, in the sense that the developers were obliged to allow use of the land by the local inhabitants, and could hardly take steps to prevent it (short of a court challenge). And while there might be prejudice to the local community and others, they were benefiting from a green which they should never have had. Moreover, any prejudice would need to be proved rather than inferred simply because of the elapse of time [and there was precious little such evidence tendered in the courts below]. In Betterment, it would have been possible for someone placing reliance on the registration to find out about the unproductive initial steps made by the developer towards a challenge, and in Paddico, there had been an early application to rectify which was stayed owing to the evolving case law, there was no evidence of specific prejudice to the local inhabitants arising from the delay, other than the loss of the green, and the developer would suffer prejudice in not being able to rectify a wrongful registration. So in both cases, the developers prevailed, and the ‘greens’ will be deregistered.

Is it coincidence that the highest court has at last given judgments contrary to the interests of those furthering the registration of greens, just when legislation has been passed, in ss.14 to 17 of the Growth and Infrastructure Act 2013, which greatly repress those interests through statutory measures? Perhaps. But it’s hard not to read the judgment in these conjoined cases as exhibiting a sympathy for the developer, and an indifference to the interests of the local inhabitants, which is in striking contrast to the judgments of this court in earlier cases. If I were Newhaven Town Council, appearing before the Supreme Court in the spring in R (on the application of Newhaven Port & Properties Limited v East Sussex County Council and another and R (on the application of Newhaven Port & Properties Ltd v The Secretary of State for the Environment Food & Rural Affairs, to defend the registration of Newhaven West Beach as a town green, I wouldn’t be feeling too sanguine.

One interesting aside: in commenting on the role of the court in a s.14 challenge, Lady Hale said: “The administrative process of registration does not fulfil the requirement in article 6 [of the ECHR] for a ‘fair…hearing by…an impartial tribunal established by law’. The section 14 process of rectification fills that gap. That is one reason why it has to be a full rehearing rather than a review of the registration authority’s decision.” However, s.14 does not apply to registrations made in areas where Part 1 of the 2006 Act has been brought fully into force, and there is no equivalent provision except for judicial review, which does not allow for a full rehearing. So perhaps we will eventually hear from the Supreme Court again on the question, never entirely satisfactorily addressed, of whether the registration process for greens is compatible with ECHR.