PannageMan

There was a time, in the first few years of the present century, when it seemed that town and village greens were in favour. There was a steady flow of new applications to register greens, the courts (including in several high-profile cases before the House of Lords) had made rulings supportive of such applications, and the Commons Act 2006 re-enacted, with modest concessions, legislation to facilitate such applications.

The high tide mark was the 2010 ruling of the Supreme Court (as it had then become) in R (on the application of Lewis) v Redcar and Cleveland Borough Council and another, which decided that, where users of the land claimed as a green had politely deferred to the landowner’s members playing a round of golf, so as to avoid disrupting the game, that was no more than the give-and-take customary in the British way of doing things, and did not suggest that the user was any less than ‘as of right’ — and that once the claimed land (Coatham Common, the name ‘common’ in this case not signifying that the land was already registered common land) had been registered as a green, the rights of the local community to use the green for lawful sports and pastimes would remain subject to the same principles of give-and-take.

Since then, the tide has predictably ebbed under pressure to promote development and growth, and political and judicial support for registering new greens has declined, with the provisions in the Growth and Infrastructure Act 2013 greatly restricting the scope for registering greens in the teeth of development plans, and several decisions of the courts imposing constraints on what land may be registered.

Yesterday, 21 March 2016, the Administrative Court of the High Court handed down a useful judgment in R (Somerford Parish Council) v Cheshire East Borough Council and Richborough Estates Ltd (I have altered the listing to conform to the usual practice for judicial reviews: if any reader can tell me why the parties in this and some other cases alight on what appears to be a non-standard form, please do add a comment below) which, while hardly suggesting that the tidal ebb has cycled back to a flood tide, does clarify some interesting points on the relationship between greens and highway rights, and the obligation on commons registration authorities (which determine most applications to register greens) to deal with applications fairly to all parties.

The case was about an application by Nicholas Bell to register the verges of two minor roads in Somerford, west of Congleton, as greens: Chelford Road and Black Firs Lane, under s.15 of the 2006 Act. It seems that the application (as so often) had something to do with a proposal to develop much of the land between the roads. It is not suggested that the verges themselves would be incorporated in the development (although parts fell within the development site, and were excluded from the application under s.15C of the 2006 Act, inserted by s.16 of the Growth and Infrastructure Act 2013), but their registration as greens would have seriously constrained access to the development site. You can see the two roads west and east of the arrow on Streetmap, generously proportioned by the Ordnance Survey, and get an idea of the character of the land from Google Street View here and here. Those who refer to Street View will see that both roads have a very broad verge planted with trees, and those inclined (like me) to jump to conclusions will assume that the roads were historically wide, and perhaps inclosure awarded. Not so: a quick look at old-maps.co.uk shows that the roads, while not ungenerously proportioned on the Ordnance Survey 1909 County Series 1:2,500 map, had both acquired substantial verges and apparently new outer hedges by the time of the 1965–67 map.

The challenge by way of judicial review was essentially one of procedural flaws to the determination of the application by the commons registration authority, Cheshire East Borough Council (a unitary authority), brought not by the applicant for registration, Mr Bell, but by the parish council. The registration authority had appointed James Marwick, a barrister who specialises in village green cases, to act as an inspector to consider and advise on the case. Frequently, that role includes presiding over a ‘non-statutory’ public inquiry (‘non-statutory’ because there is no statutory requirement on the authority to hold an inquiry) to hear and test evidence from all parties. But in this case, Mr Marwick identified that there was a key objection to the application: were the verges part of the highways? And if he could conclude in the affirmative, he might not need to proceed to an inquiry.

It seems to have been accepted by the court that, if the verges were highway, then the application must fail, because the claimed activities of lawful sports and pastimes carried out on the application land were generally no more than people had a right to do in exercising reasonable use of the highway, and could not amount to use ‘as of right’ for the purposes of claiming a green. There have been several cases in the courts over the years which have tried to distinguish user of land which may establish public rights of way, and user which may support a claim to register the land as a green, but (to to the best of my knowledge) none has found that a green cannot be claimed on existing highway land. (Although many registered greens do include highway land, not least because, whereas s.22(1) of the Commons Registration Act 1965 excluded highways from the definition of what could be registered as common land, it was not excluded from the definition of greens). The court’s position is hardly surprising: the House of Lords in Director of Public Prosecutions v Jones and another (a splendidly liberal decision led by the then Lord Chancellor, Derry Irvine, when Lord Chancellors still participated in all three parts of Government, viz the executive, legislative and judiciary) found that a demonstration on the verge of a main road was not a trespass exceeding the rights of the user, and greatly extended the prevailing historical interpretation of what amounted to reasonable user. It seems that the claimant had sought permission to challenge the decision in Jones all the way up to the Supreme Court, but leave had been refused on this ground (see para.6, though one wonders whether the Supreme Court might have risen to the bait given the chance).

Mr Marwick received considerable evidence from the defendant authority on the status of the verges, some of it after the deadlines he had stipulated for submissions from parties. Mr Bell, the applicant, did not specifically ask for an extension of time to comment, on the late submission nor was one offered, while Mr Marwick, in his report to the council, said the late submission was: “relatively incontrovertible documentary evidence and having considered it in detail, it does not significantly alter the Council’s position or my view of the issues in this matter.” In the event, the court disagreed, noting that much of the late-tendered evidence was new and capable of being challenged, and Mr Bell ought to have been offered an opportunity for that purpose. Given the critical question of whether the verges were highway land, the authority’s decision to refuse the application without affording such an opportunity was flawed, and was quashed.

As a procedural failing, the case might not be thought to offer much of interest. But it does.

First, one of the grounds of challenge was that the registration authority “act[ed] as Judge in its own cause and thereby in breach of natural justice”. The authority was said to have an interest in promoting the development on the adjacent land and releasing the funds committed through a s.106 agreement. The claimant said that authority should have asked another (presumably neighbouring) authority to determine the application under s.101(1)(b) of the Local Government Act 1972. The court found against the claimant on this ground, with some inconclusive consideration of previous caselaw (including the rather odd case of R (Whitmey) v the Commons Commissioners), but concluding (para.31) that, “appointing an independent legal expert to conduct a non statutory enquiry and make findings is an appropriate mechanism.” And indeed, the court went on to find (para.74) that there were sufficient disputes of factual issues raised to require the inspector to hold a public inquiry.

Second, having decided that there was a procedural failing, the court was bound to consider, under s.31 of the Senior Courts Act 1981 (as amended by s.84(1) of the Criminal Justice and Courts Act 2015), whether: “it appears to the Court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” This required the court to appraise the potency of the claimant’s arguments that, had Mr Bell been afforded an opportunity to challenge the late evidence, it might have undermined Mr Marwick’s conclusion that the verges were highway land.

The court’s analysis demonstrates that the origin of the wide verges was somewhat uncertain, but at least partly attributable to an inter-war initiative by a predecessor highway authority to widen the roads, perhaps in anticipation of road improvements. The documentation was incomplete and, at least in the claimant’s view, inconclusive. It was not entirely clear under what powers the land had been acquired, whether all the land had been acquired (or the landowner had voluntarily resiled from its use), whether, insofar as it had been acquired, it had immediately become dedicated as highway land by virtue of statute, and whether the authority had maintained all the verges itself (or frontagers had maintained some of them).

A point was taken on documentation which showed, in any event, that the roads, including the verges, were included in the authority’s ‘list of streets’, a list of publicly maintainable highways which every highway authority is required to keep under s.36(6) of the Highways Act 1980 (it was apparent that the ‘list’ was in fact a map). Mr Marwick had advised the authority that the inclusion of the verges in the list had “not been challenged. This is strong evidence in itself that the land is highway land.” Mr Bell had argued that inclusion in the list of streets was not conclusive evidence of public highway status, and was “no greater than the evidence upon which it is based.” The court accepted, “that the plan showing the list of streets is strong evidence that the land is highway land, though not determinative.” There was a presumption of regularity about the list. But as the list was not the only evidence, and serious questions had been raised about its accuracy, the claimant was “entitled to explore the question of what, if any, evidence supports it.”

Mr Bell, and Somerford parish council, will now get a new opportunity to pursue the application, presumably through a ‘non-statutory’ public inquiry. If they succeed in contesting the evidence of highway status, they will still need to show that there was sufficient use of the land as of right for lawful sports and pastimes during 20 years preceding the application to justify registration. But if the application is granted, any plans which the highway authority formerly or now, or indeed the developer, had to use some of the land for road improvement or access to the development site, will have to be reviewed, with the possibility of further delay and costly provision of exchange land in order to release it from designation. Somerford parish council is not destined to be remembered in quite the same way as Sunningwell parish council, but for a relatively rural and sparsely populated parish outside the built-up area of Congleton itself, this was quite an achievement just the same.

Postcript: On reflection, even if the application land were found not to be highway land, the question arises — for what purpose was the land acquired by the council, and was use of the land by local people ‘by right’ or ‘as of right’? In R (Barkas) v North Yorkshire County Council and another, Lord Neuberger said (para.24), “where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use (whether for a limited period or an indefinite period), it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land ‘as of right’, simply because the authority has not objected to their using the land.” It is by no means inevitable that success on the narrow highway status point will secure the outcome that Somerford Parish Council seeks.

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.

The Department for Communities and Local Government has laid a draft order before Parliament to extend the circumstances in which development can pre-empt an application to register a new town or village green in England. The draft Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2013 is subject to the affirmative resolution procedure, so it must be approved by a resolution of each house before it comes into force: those resolutions are likely to be passed over the next couple of months, probably with a short debate in one or both houses.

Section 16 of the Growth and Infrastructure Act 2013 amended the Commons Act 2006, to prevent applications to register greens on land where the development approval process had already been set in train. The most obvious example is where an application is made for planning permission on land: once that application is publicised (e.g. by notice on site) then it acts as a ‘trigger event’ which makes it no longer possible to apply to register that land as a green. The block on registration remains indefinitely (if the development takes place), or until a ‘terminating event’ occurs: again the most obvious is where planning permission is granted, but the development is not begun within the time allowed by the permission.

New Schedule 1A to the 2006 Act sets out a number of statutory mechanisms by which development consent can be granted, and the associated trigger and terminating events. It also confers the same protection from registration where land is designated for development in local plans. However, Schedule 1A was not comprehensive, and new section 15C(5) of the 2006 Act enables the Secretary of State to amend or extend the list. This is what the draft order will do, to specify new trigger and terminating events arising from local development orders and neighbourhood development orders, and from applications for infrastructure works under the Transport and Works Act 1992 (such as railway, tram or guided busway schemes). None of these development consent mechanisms is used particularly frequently (no neighbourhood development order has yet been granted, but some are in the pipeline), but the provisions are logical additions to those included in the 2013 Act. The only surprise is the omission of road schemes under the Highways Act 1980, but this may be because most road schemes are now authorised under other powers which are already addressed in Schedule 1A.

Once approved by Parliament, the Secretary of State may make the order, and it comes into force on the day after it is made (see article 1(1) of the draft order).