Betterment Properties (Weymouth) Ltd v Dorset County Council and another

Town or village green (TVG) — Commons Registration Act 1965 — Area of open land registered as TVG — Application by landowner to rectify register and cancel registration — Section 22(1)(c) of 1965 Act — Whether recreational user of land as of right — Whether recreational user rendered contentious by attempts of landowners to prevent it In 2004, the claimant acquired the freehold of an area of open land. Until around 1980, the land had been used for grazing but had not been put to profitable use since. The land was crossed by two footpaths over which the public had a right of way, but local residents had for many years walked on the land without keeping to the footpaths. The land had been registered as a town or village green (TVG) in June 2001, on an application, under section 13 of the Commons Registration Act 1965, to the first defendant council as the registration authority. The registration had been made under section 22(1)(c) of the 1965 Act on the ground of 20 years’ recreational use of the land by local inhabitants as of right. After acquiring the land, the claimant brought proceedings to rectify the register and cancel the registration under section 14 of the 1965 Act. Rulings on two preliminary points in the proceedings were upheld by the Court of Appeal: see [2008] EWCA Civ 22; [2009] 1 WLR 334. The High Court then proceeded to decide the substantive issues, namely whether the 2001 registration ought to have been made and whether it was just to rectify the register. The second defendant, a local resident, joined the proceedings by consent in support of the registration. The claimant’s main submission was that the recreational user had been contentious and not “as of right”. The court made relevant findings of fact that: (i) during the period up to and including 1980, when the land had been grazed, members of the public had on many occasions destroyed fences or created gaps in hedges in order to gain access to the fields and any repairs by the landowners had led to new gaps being made; (ii) after 1980, when the land was no longer grazed, the gaps had largely gone unrepaired; (iii) while grazing stock was present on the land, it had been interfered with by members of the public and worried by dogs; (iv) the landowners had, over a period of years continuing after 1980, erected and re-erected clearly visible signs indicating that members of the public were not entitled to leave the footpaths because the remainder of the land was private and their presence on it was a trespass; (v) for a period of time, the landowners had warned off members of the public who left the footpath but with little success; and (vi) the landowners had given up trying to exclude people from the land by the above means by the mid-1980s. Held: The claim was allowed. Recreational user of land will not be “as of right” if it is contentious in nature. User is contentious if the circumstances are such as to indicate to those using the land, or to a reasonable person with knowledge of the relevant circumstances, that the landowner objects to such use and is willing to back that objection either by physical obstruction or legal action. The recreational user of the claimant’s land had been contentious for a sufficient length of time such that no continuous period of 20 years’ user as of right could be established. Until at least 1984, a reasonable person using the land and knowing the relevant facts, as found above, would have appreciated that the landowners objected and continued to object to the use of the land and would support the objection by physical obstruction to the extent possible. During that period, the landowners had been doing everything, proportionate to the user, to contest that user and endeavour to interrupt it. That was sufficient to render the recreational user contentious during that period. The failure of the landowners to bring some form of court proceedings to stop the user did not, in all the circumstances, amount to acquiescence in that user. Accordingly, the amendment of the register in 2001 to include the land as a TVG should not have been made. The prima facie position was that it was just to rectify the register to cancel that registration because the landowners would otherwise be subject to burdens that ought not to have been imposed and the local inhabitants would be entitled to enjoy rights over the land that should not have been conferred on them. Although the question of justice involved a balancing exercise, taking into account all proper points that could be made on behalf of the landowners and the inhabitants, there were no other matters in the instant case that overrode the prima facie position. An order would be made to rectify the register by cancelling the registration of the land as a TVG. The following cases are referred to in this report: Betterment Properties (Weymouth) Ltd v Dorset County Council [2008] EWCA Civ 22; [2009] 1 WLR 334; [2008] 3 All ER 736, [2007] EWHC 365 (Ch); [2007] 2 All ER 1000 Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch); [2003] 1 WLR 1633; [2003] 3 All ER 736 Dalton v Henry Angus & Co; Commissioners of HM Works and Public Buildings v Henry Angus & Co; sub nom Dalton v Angus & Co (1881) LR 6 App Cas 740, HL Dennis v Ministry of Defence [2003] EWHC 793 (QB); [2003] 2 EGLR 121; [2006] RVR 45; [2003] JPL 1577 Eaton v Swansea Waterworks Co (1851) 17 QB 267 Fairey v Southampton County Council [1956] 2 QB 439; [1956] 2 WLR 517 & 3 WLR 354; [1956] 1 All ER 419 & 2 All ER 843; (1956) 54 LGR 135 & 54 LGR 388, CA Field Common Ltd v Elmbridge Borough Council [2005] EWHC 2933 (Ch); [2006] PLSCS 3 Hampshire Waste Services Ltd v Persons unknown [2003] EWHC 1738 (Ch); [2003] 42 EG 126 (CS); [2004] Env LR 9 Lyell v Lord Hothfield [1914] 3 KB 911, KB Newnham v Willison (1988) 56 P&CR 8 Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 AC 674; [2006] 2 WLR 1235; [2006] 4 All ER 817; [2006] 2 EGLR 95, [2005] EWCA Civ 175; [2006] Ch 43; [2005] 3 WLR 1043; [2005] 3 All ER 961; [2005] 2 P&CR 28; [2005] 2 EGLR 91; [2005] 2 PLR 75 R (on the application of Beresford) v Sunderland City Council; sub nom R v Sunderland City Council, ex parte Beresford [2003] UKHL 60; [2004] 1 AC 889; [2003] 3 WLR 1306; [2004] 1 All ER 160; [2004] 2 P&CR 23; [2004] 1 EGLR 94; [2004] 1 PLR 85; [2004] JPL 1106 R (on the application of Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin); [2004] 1 EGLR 85; [2003] 4 PLR 95; [2004] JPL 975 |page:130| R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs; R (on the application of Drain) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28; [2008] 1 AC 221; [2007] 3 WLR 85; [2007] 4 All ER 273; [2008] 1 P&CR 12; [2007] 3 EGLR 119; [2007] JPL 1691 R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11; [2010] 2 AC 70; [2010] 2 WLR 653; [2010] 2 All ER 613; [2010] 2 P&CR 16; [2010] 1 EGLR 153; [2010] JPL 1135, [2008] EWHC 1813 (Admin); [2008] PLSCS 212; [2008] NPC 97 R (on the application of Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin); [2010] 2 EGLR 171; [2010] JPL 1106; [2010] BLGR 631 R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335; [1999] 3 WLR 160; [1999] 3 All ER 385; (1999) 79 P&CR 199; [1999] 2 EGLR 94; [1999] 31 EG 85; [2000] JPL 384, HL Secretary of State for the Environment, Food and Rural Affairs v Meier [2008] EWCA Civ 903; [2009] 1 WLR 828; [2009] 1 All ER 614; [2009] HLR 16 Smith v Brudenell-Bruce [2002] 2 P&CR 4, Ch South Cambridgeshire District Council v Persons unknown [2004] EWCA Civ 1280, [2004] 4 PLR 8; [2005] JPL 680 This was the hearing of a claim by the claimant, Betterment Properties (Weymouth) Ltd, against the defendants, Dorset County Council and Mrs Gillian Taylor (on behalf of the Society for the Protection of Markham and Little Francis), under section 14 of the Commons Registration Act 1965, to cancel the registration of land as a town or village green and rectify the register accordingly. George Laurence QC and William Webster (instructed by Pengillys, of Weymouth) appeared for the claimant; the first defendants did not appear and were not represented; Philip Petchey (instructed by Public Law Solicitors, of Birmingham) represented the second defendant. Giving judgment Morgan J said: Case in outline [1] This case concerns an area of open land in Weymouth, Dorset, known as Markham and Little Francis. The land is surrounded by built-up areas, mostly residential, in Weymouth, and is crossed by two footpaths. Until around 1980, it was used for grazing. Since 1980, the landowners have not made any profitable use of the land. For many years, even before 1980 and continuing after 1980, local residents have walked on the land. They have not kept to the footpaths but have wandered more freely over the land. The reaction of the landowners to this activity will be described in detail later in this judgment. The landowners say that for a long period they tried to stop trespass on the land (away from the footpaths) but in the end they seemed to have given up because they simply could not stop it. The residents say that there was never any real attempt to prevent them walking freely on the land. Eventually, in 1997, an application was made to register the land as a town or village green (TVG). That led to a non-statutory public inquiry in December 2000. In June 2001, the registration authority determined that the land should be registered as a TVG. An application by the landowners for judicial review of this decision was made and then discontinued. The landowners reserved their right to apply, under section 14 of the Commons Registration Act 1965 (the 1965 Act), to rectify the register and to cancel the registration of the land. Eventually, in December 2005, these proceedings were brought, under section 14, to rectify the register in that way. These proceedings have already gone to the Court of Appeal, which decided two preliminary points. I now give this judgment on the question of whether the 2001 registration ought to have been made and whether it is just to rectify the register. [2] Mr George Laurence QC and Mr William Webster appeared on behalf of the claimant, Betterment Properties (Weymouth) Ltd. The first defendants, Dorset County Council did not appear and were not represented. The second defendant, Mrs Gillian Taylor was represented by Mr Philip Petchey. The case has been thoroughly prepared and skilfully argued. These counsel are acknowledged experts in this area of law. I am fortunate to have had the considerable assistance that they gave me. Land [3] The land that has been registered as a TVG (hereafter “the registered land”) extends to around 46 acres. At all material times, the registered land has been in the same ownership as a parcel of land to the west of it. The registered land and the land to the west together comprise some 94 acres. These 94 acres are essentially open land and are not built on, although there were in the past some basic farm buildings on the land. The 94 acres in question are situated in Weymouth between Wyke Road to the south and Chickerell Road to the north. When referring to the registered land, I am throughout referring to the land that was formerly owned by members of the Curtis family and is now owned by Betterment Properties (Weymouth) Ltd (hereafter “Betterment”) and that was in due course registered as a TVG. I do not include in that description an area of land that has been shown as cross-hatched on the various plans that have been produced. I will refer to this area as “the cross-hatched land”. It seems clear that it was never really intended that the cross-hatched land should be registered as part of a TVG, although, as it happens, it has ended up being included in the land so registered. [4] The registered land was, certainly in earlier times, separated from the land to the west of it by field boundaries and, as regards the northern block of the 94 acres, the two parcels are separated by a lane known as Cockles Lane. [5] There are two footpaths that cross the registered land. One footpath runs from the public highway at Markham Avenue (to the east of the registered land) across the registered land and leaves it in the south-west corner of that land. The second footpath branches off from this first footpath at about its mid-point and runs in a westerly direction and joins Cockles Lane, which then runs across the land to the west of the registered land. Because of the presence of the footpaths, it is legally permissible for the public to cross the registered land by means of the footpaths. The first footpath to which I have referred was the subject of a temporary diversion for around three years from the end of November 1979. I will refer to that matter again when I deal with the position in respect of certain drainage works that began in around December 1979. [6] Many of the residents of Weymouth in the vicinity of the registered land obviously place a high value on their ability, as they see it, to use that land for walking and recreation. It is not relevant to the decision that I have to make to assess the amenity value of that land. It is clear from the authorities on the operation of the 1965 Act that land can be a TVG in law even if the land is unattractive, with little amenity value. The local residents plainly regard the amenity value of the registered land as considerable. They would be very disappointed if it were no longer to be available to them as a TVG. They would also be most concerned if the cancellation of the registration as a TVG meant that the land could be brought forward for development. That last matter would of course be for the local planning authority and not for the court to decide in these proceedings. In these circumstances, it would be inappropriate and might even be unhelpful for me to add any subjective views of my own as to the amenity value of the registered land, and I do not do so. [7] At all material times until January 2004, the registered land was owned by members of the Curtis family. It is not necessary to describe which member of that family owned which part of the land at that time. I will therefore refer simply to the land as being owned by the Curtis family. The Curtis family sold the land to Betterment in January 2004 and Betterment has since remained the owner of it. Statutory provisions [8] The statutory provisions that are of principal relevance are contained in the 1965 Act. Although the 1965 Act was relevantly amended by the Countryside and Rights of Way Act 2000 (the 2000 Act), in particular by section 98, and was then repealed by the Commons Act 2006, this case is governed principally by the 1965 Act before the 2000 amendment and before its repeal. [9] Section 1(1) of the 1965 Act provided for the registration of, among other things, a TVG. Section 22(1), as originally enacted, defined “town or village green” so as to mean: |page:131| 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]. [10] In the above definition, I have added the references to [a], [b] and [c], as is commonly done in setting out this definition. The present case is concerned with the third part of this definition. Greens in this class are commonly referred to as “Class c greens”. [11] By section 1(2) of the 1965 Act, after the end of a period, to be determined by an order made by the relevant minister, no land that is capable of being registered under the 1965 Act is deemed to be a TVG unless it is so registered. Orders were made under section 1(2) determining that the relevant period ended on 31 July 1970. [12] By section 2 of the 1965 Act, the registration authority for the purposes of the 1965 Act are the relevant county council, in this case Dorset County Council. [13] Section 13 of the 1965 Act provided for regulations to be made under the 1965 Act to allow the amendment of the registers maintained under the Act where “any land becomes… a town or village green”. The Commons Registration (New Land) Regulations 1969 have been made pursuant to section 13 of the 1965 Act. [14] The effect of the above provisions is that it is open to a person to apply for registration of land as a TVG by relying on user that falls within Class c of the definition of “town or village green” where the user was for 20 years or more ending after 31 July 1970. (I was not addressed on whether it is possible to include in the period of 20 years ending after 31 July 1970 a period before that date and whether the answer depends on whether there was or was not more than 20 years’ user before that date, and I will not discuss that point.) [15] Section 14 of the 1965 Act provides: The High Court may order a register maintained under this Act to be amended if — (a) the registration under this Act of any land or rights of common has become final and the court is satisfied that any person was induced by fraud to withdraw an objection to the registration or to refrain from making such an objection; or (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. [16] No regulations of the kind contemplated by section 14(b) have been made. History of registration of the land [17] On 15 December 1994, Mrs J Horne applied to Dorset County Council, under section 13 of the 1965 Act, to register an area of land, shown edged green on a plan attached to the application, as a new TVG. The land edged green on the plan attached to the application included what I have called “the registered land”, which is the subject of this litigation, but the land edged green extended further so as to include the cross-hatched land. The land that was the subject of the application was said to be usually known as Markham and Little Francis and the application referred to an enclosure award for Wyke Regis dated 1798. The application stated that the land became a TVG on 1 August 1990, that is, 20 years after the cut-off date of 31 July 1970 pursuant to section 1(2) of the 1965 Act. [18] As I have stated, the application for registration was made by Mrs Horne. At that time, she was an office holder in the Society for the Protection of Markham and Little Francis. A document dating from 1999 showed that she was (in 1999) the secretary of that society. At any rate, Mrs Horne was the moving force in 1994 and all the way through until the registration of the registered land in June 2001. Mrs Horne showed herself at all stages to be a most determined lady, who was passionate and energetic in pursuit of her goal of achieving the registration of the land as a TVG. She succeeded in that goal in June 2001, although that success is ultimately subject to the outcome of this litigation. Mrs Horne has not participated in this litigation by reason, I understand, of her present age and condition. [19] The county council notified the Curtis family, the then owner of the land, of the fact that an application for registration under the 1965 Act had been made. The Curtis family lodged an objection to the suggested registration. The objection consisted of a report extending to 12 pages, supported by some 15 detailed witness statements, including statements from Mr Barry George Curtis and Mr Maurice Raymond Curtis. The 12-page report set out the owners’ grounds for objecting to the registration. It was contended that the user that was relied on by the applicant was user otherwise than by the inhabitants of a locality, since the area from which relevant individuals had come was too wide an area to amount to a locality. It was also contended that the user was not as of right. In particular, it was contended that the user was not “without force”, and details of that contention were set out. It was also alleged that the user was not without stealth or secrecy. Further, the owners stated that they had been happy to assist with certain community uses of the land and those uses were with the permission of the owner. Reference was also made to a period during which a large area of land was occupied by contractors that were carrying out works as part of the main Weymouth drainage scheme. The conclusion of the report was expressed in these terms: In conclusion it is submitted that the applicants have failed to make out a good case for registration of the land as a town green. Any use of the land has been by members of the public and has not been limited to those of a locality. Such use has not been without force or without stealth or secrecy; and has not taken place over a continuous period of twenty years. All trespass on the land has been strenuously resisted by the land owners since the land was first acquired in the 1950s to the present day. [20] As I have stated, the report was supported by a witness statement from Mr Barry Curtis. He concluded his witness statement with this passage: I have no doubt whatsoever that those members of the public who have walked across the land (not including the right of way) are well aware that they are on “Curtis fields” and that they are trespassing on that land, that they are there without permission and that if the owners had seen them on the land, they would be asked to leave. [21] The report was also supported by a witness statement from Mr Maurice Curtis. In his statement, he said: I have challenged members of the public whom I have seen crossing the land and straying off the rights of way on a number of occasions in the past and told them to get off the land as it is private. Very often the public’s response was abusive. I am quite certain that any member of the public knew that if they were crossing the “Curtis fields” and that they were not keeping to the defined rights of way they were trespassing on land against the wishes of the owner. [22] The owners’ objection of October 1995 was submitted to the county council on 19 October 1995. The county council passed the objection to the applicant, Mrs Horne, who requested an extension of time to make her comments on the objection. She submitted a very detailed and lengthy response to the owners’ objection. Her comments were summarised in a report made by the county solicitor to the rights of way subcommittee for its meeting on 21 November 1996. Mrs Horne’s comments stated that the relevant locality was the whole of Weymouth, the owners’ evidence as to the user was misleading and none of the persons using the land had seen any notices warning people off the land. [23] In his report to the rights of way subcommittee, the county solicitor recommended that the application for registration be refused on the ground that the persons using the land were the public at large and were not the inhabitants of a locality within the meaning of the 1965 Act. Further, the county solicitor advised that the applicant had to show use for lawful sports and pastimes, and there was no evidence of use for sports but only of recreational use. On 21 November 1996, the rights of way subcommittee of the county council accepted this recommendation and refused the application for registration of the land. The minute recording this decision also recorded that the councillor |page:132| who represented the Westham ward supported the application for registration and the councillor who represented the Rodwell ward was concerned about the committee’s decision. [24] There was no clear evidence as to the persons who would have become aware of the owners’ objection of October 1995. Mrs Horne was an office holder in the Society for the Protection of Markham and Little Francis. She had supported her application of 15 December 1994 with some 42 forms, which identified, as I understand it, 42 persons who said that they had used the land over a period of time. The discussion at the subcommittee meeting of 21 November 1996 involved a number of councillors, including at least two councillors who were local to the land. Later in this judgment, at the appropriate point, I will return to this question of how widely known the terms of the owners’ objection of October 1995 would have been. [25] Although Mrs Horne’s application of 15 December 1994 was rejected on 21 November 1996, she appears to have continued a correspondence with the county council. In particular, she wrote to the county solicitor on 5 February 1997 (referring to an earlier letter of 3 February 1997). Her letter of 5 February 1997 commented on the county solicitor’s earlier report to the subcommittee that had met on 21 November 1996 and asked the county solicitor to consider the case further. There does not appear to have been a second formal application for registration until Mrs Horne applied on 17 March 1997 (although that application refers to an earlier date of 25 February 1997). The application of 17 March 1997 was accompanied by a letter of the same date from Mrs Horne to the county solicitor. That letter explained that Mrs Horne was relying on new evidence as to the identification of the relevant locality. The application of 17 March 1997 identified the application land as the land that I have called the registered land together with the cross-hatched land. [26] The application of 17 March 1997 was the subject of two letters from the county council; the first was dated 25 April 1997 to the solicitor for the Curtis family and the second was dated 28 April 1997 to Mrs Horne. The county council took the position in those letters that Mrs Horne’s application of 17 March 1997 did not address the county council’s grounds for refusal of the earlier application. Mrs Horne was invited to collect all the evidence she wanted to rely on in support of her application and to resubmit it. [27] It appears that on or around 30 September 1997, Mrs Horne did resubmit the application that she had originally made on 17 March 1997, but probably including further material relating to the identification of the relevant locality. A copy of an application bearing the date 30 September 1997 has not been produced. [28] On 29 April 1998, the county council purported to effect a provisional registration of the relevant land as a TVG. This provisional registration referred to the relevant application being dated 17 March 1997. The land that was the subject of the provisional registration was described as having “about 81.7 hectares (46.2 acres)”. The reference to 81.7ha must be a mistake; the figure should have been 18.7ha. The plan attached to the provisional registration shows not only the land the subject of the present dispute but also the cross-hatched land. This provisional registration was of no effect. The county council appear to have misunderstood the effect of section 4 of the 1965 Act dealing with provisional registration, which does not apply to an application to amend the register under section 13 to include land that has become a TVG after 31 July 1970. [29] The application made in 1997 was considered by the countryside and conservation subcommittee of the county council at its meeting on 24 November 1999. The report that had been made for the consideration of that subcommittee recorded that the owner of the cross-hatched land had objected to the registration of his land as a TVG and, in response, Mrs Horne had agreed to amend her application so as to exclude the hatched land. Thus, it seems that from that time onwards, there was no intention on anyone’s part to register the cross-hatched land as part of a TVG. None the less, as will be seen the cross-hatched land was included in the later registration. At the end of my judgment I will consider what should be done to deal with this seemingly unintended inclusion. On 24 November 1999, the subcommittee resolved that there should be a non-statutory public inquiry into the application and that the inquiry should take the form of a hearing before a panel of three members of the council. After considerable correspondence involving the parties, the county council restated that resolution on 2 June 2000. [30] The panel of three county councillors convened an oral hearing of the non-statutory public inquiry into the application for registration. The hearing took place over three days on 7, 8 and 11 December 2000. Mrs Horne submitted a considerable amount of written material in support of her application. This material was also placed before me and extended to some three lever arch files. The Curtis family relied on the material that had been provided to the county council in October 1995 but supplemented by further witness statements. The panel heard oral evidence from a large number of witnesses. Mrs Horne appeared in person and the Curtis family was represented by counsel, Mr Webster, who also appeared as junior counsel (led by Mr Laurence) before me. After the oral hearing, the parties were permitted to make detailed written submissions and both sides did so. I have been provided with the opening case summary and the closing submissions, which were prepared by Mr Webster and put before the panel. I have also been provided with the written closing submissions made by Mrs Horne. Finally, I have a transcript of the three-day hearing. Later in this judgment, it will be necessary to refer to some of the evidence that was put before the panel in December 2000. At this point, I will refer to certain matters that are said by one or other of the parties to be relevant. [31] In his opening case summary, counsel for the owners contended that the evidence would show that the user of the land was not “as of right” because, in particular, there had been vandalism and damage caused to the land and there had been opposition from the Curtis family. With regard to the question of whether the user was by the inhabitants of a locality, counsel for the owners submitted, by reference to a dictionary definition, that a locality was: “an area or district considered as the site occupied by certain people or things or as the scene of certain activities; a neighbourhood”. He added that the courts were not restricted to the narrow concept of one parish only. [32] The panel also received written closing submissions prepared by counsel for the owners. These submissions were dated 16 January 2001 and were provided after the conclusion of the oral hearing. The written closing submissions addressed the meaning of “as of right” and pointed out that user that was forcible was not as of right. Counsel for the owner referred to the evidence as to fencing, the erection of signs, persons being asked to leave the land and other respects in which the user was not tolerated. He also relied on the owners’ objection in October 1995, which he said made it common knowledge in the locality that the owners were disputing the existence of the right. On the issue as to user by the inhabitants of the locality, counsel drew attention to section 98 of the 2000 Act, which was enacted on 30 November 2000 and was due to come into force on 30 January 2001: see section 103(2) of the 2000 Act. Section 98 of that Act amended the definition of TVG in section 22 of the 1965 Act. In particular, in respect of the former requirement that there be relevant user by “the inhabitants of any locality”, the new definition identified the requirement that there be relevant user by “a significant number of the inhabitants of any locality, or of any neighbourhood within a locality…”. [33] In his written closing submissions, counsel for the owners submitted that the amendment to be made by section 98 of the 2000 Act did little more than place the existing case law on a statutory footing. He submitted that the distinction between the old definition and the new definition in this respect was not likely to make any substantive difference in meaning. He repeated the dictionary definition he had quoted in his opening case summary, where the definition referred to a locality being a neighbourhood. He also repeated the submission that the courts were not restricted to the narrow concept of one parish only. It will be seen that these submissions made by counsel on behalf of the owners at the local inquiry are significantly at variance with the submissions made by the current owners in the current application under section 14 of the 1965 Act. |page:133| [34] Mrs Horne prepared a detailed written submission in February 2001, and this was provided to the panel. She commented on the written closing submissions prepared by counsel for the owners. With regard to the question of the user being forcible, Mrs Horne challenged the assertion that the rejection on 21 November 1996 of the application of 15 December 1994 resulted in it becoming generally known that the owners disputed the claim that the land was a TVG. Mrs Horne also dealt with the amendment to the definition of TVG pursuant to section 98 of the 2000 Act. She proceeded on the basis that because the matter had not been determined by the 30 January 2001 (the date on which the amendment came into force) the panel should apply the new definition. [35] On 5 June 2001, the county council wrote to the parties with their decision in respect of the application to register the land as a TVG. The decision letter set out the detailed reasoning of the panel. The panel decided that the application succeeded and the land should be registered as a TVG. The decision letter set out the background to the hearing before the panel, a description of the site, what it perceived to be the relevant legal principles, a summary of the case for the applicant and a summary of the case for the landowners. The decision letter referred in detail to the evidence given on both sides. The panel then summarised the closing statements made by the landowners and by the applicant. It directed itself that it should apply the definition of TVG contained in section 22(1) of the 1965 Act, as amended by section 98 of the 2000 Act. [36] In its reasoned conclusions, the panel considered whether the applicant had shown 20 years’ user of the land. The panel referred to a submission made by the landowners that user had been interrupted by the work that had been carried out by contractors in connection with the Weymouth drainage scheme. The panel held that the applicant had shown continuous user of the land for 31 years; this period must have been the period 1970 to 2001. The panel did not accept the landowners’ submission that the works carried out by the contractors had interrupted the user. [37] The panel then considered whether the user had been by a significant number of the inhabitants of any locality or of any neighbourhood within a locality. This question was based on the panel’s earlier conclusion that the relevant test was in the definition of TVG as amended by section 98 of the 2000 Act. The panel held that the borough of Weymouth and Portland was a distinct and identifiable community, being a division of Dorset. I interpret this finding to be a finding that the borough of Weymouth and Portland was a “locality”. The panel then held: The Panel also considered that Wyke Regis was a neighbourhood within the locality of Weymouth and Portland. The Panel concluded that on balance the evidence showed that a significant number of the inhabitants of Wyke Regis were using the Application Site during the twenty year period. [38] The panel next considered whether the user had been user for “lawful sports and pastimes”. The panel directed itself, in accordance with the decision of the House of Lords in R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335*, that “sports and pastimes” did not refer to two classes of activities but to a single composite class that could be satisfied if the activity could properly be called a sport or pastime. The panel held that the relevant activities could be called a sport or pastime and, further, that they extended to the whole of the land in question. ————————————————————————— * Editor’s note: Also reported at [1999] 2 EGLR 94; [1999] 31 EG 85 ————————————————————————— [39] Finally, the panel considered whether the user was “as of right” in that it was “without force, without secrecy and without permission”. The panel held that the agricultural activities carried on on the land did not impinge on the recreational user that it had found had occurred. The panel then referred to the drainage works and said: Members also concluded as a matter of fact that the works undertaken by Weymouth and Portland Borough Council for the Main Drainage Scheme were not such as to interfere to any significant degree with the sports and pastimes undertaken across the Application Site by people living in the neighbourhood. In particular, they took account of the evidence of Mr Males on behalf of the Objector that a decision was made not to secure the whole site but only specific work areas that posed a threat to the public. [40] The panel considered whether the landowners had taken sufficient steps to show that they were not acquiescing in the user. In this respect, the panel said: 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. [41] On 1 August 2001, the county council gave notice of the registration of the land known as Markham and Little Francis as a TVG. The schedule to the notice referred to the land comprising approximately 81.7ha (46.2 acres). As before, the right figure in hectares would appear to be 18.7ha. The plan attached to this notice showed the relevant land as excluding the cross-hatched land. However, the register kept by the county council under the 1965 Act is annotated with an effective date of 5 June 2001, stating that the registration that was expressed to be a provisional registration became final on 5 June 2001. The plan referred to in the register entry included the cross-hatched land. [42] On 29 August 2001, Mr Barry Curtis, on behalf of the landowners, issued proceedings in the High Court Administrative Court, seeking judicial review of the panel’s decision of 5 June 2001 and, in particular, seeking an order quashing that decision. Mr Curtis’s application for judicial review was based on alleged errors of law or irrationality or other alleged inadequacies in the panel’s consideration of the question as to whether the relevant user was as of right. Mr Curtis did not challenge the panel’s direction that it should apply the amended definition of TVG nor, indeed, the panel’s conclusions as to locality and neighbourhood. [43] The county council made written submissions opposing the grant of permission to Mr Curtis to apply for judicial review. The county council contended that it was procedurally inappropriate to seek judicial review and that the correct approach would be to apply for rectification of the register under section 14 of the 1965 Act. Further, the county council contended that the alleged errors in the panel’s decision were not made out and that, in truth, Mr Curtis was challenging the weight attributed by the panel to certain matters and that was not a ground for seeking judicial review. [44] On 16 October 2001, Stanley Burnton J considered the application for permission on the papers, and refused permission. His reasons were: The substance of the application is a disagreement with the weight attributed by the panel to the evidence before it and the findings of fact made by the Defendant’s panel. This does not justify judicial review. There was no relevant error of law: the claimant accepts that the panel correctly set out the requirements of user as of right… The applicability of section 14 of the Commons Registration Act is arguable. [45] Following this refusal, Mr Curtis requested that his application for permission should be considered at an oral hearing and the matter was listed for an oral hearing on 3 December 2001. Leading counsel were instructed on behalf of Mr Curtis and on behalf of the county council. They discussed the matter and the parties agreed that Mr Curtis would discontinue his application for judicial review and pay the county council’s reasonable legal costs in connection with that application. The agreement was recorded in a letter dated 28 November 2001 from the solicitor for Mr Curtis to the county council. It was recorded that the discontinuance of the judicial review application was on the basis that |page:134| the county council acknowledged that there would be no problem with the landowners bringing fresh proceedings under section 14 of the 1965 Act and there would be no allegation of an issue estoppel so that the landowners were free to argue any points they considered relevant on an application under section 14, including but not confined to those raised in the judicial review proceedings. Following that agreement, the oral hearing listed for 3 December 2001 did not take place and Mr Curtis filed notice of discontinuance. [46] In January 2004, the freehold title to the registered land was transferred to Betterment. Procedural history [47] In December 2005, Betterment commenced the present proceedings by issue of a Part 8 claim form, supported by evidence. The details of claim have been amended and reamended. Originally, the county council were the sole defendants but, by the consent of all parties, on 27 August 2008 Mrs Taylor (sued on behalf of the Society for the Protection of Markham and Little Francis) was joined as a second defendant. [48] On 18 July 2006, Master Teverson gave directions and, in particular, directed the trial of two preliminary issues. The first preliminary issue was as to whether the jurisdiction conferred on the court by section 14(b) of the 1965 Act was by way of rehearing or appellate or on some other basis. The second preliminary issue was whether an application to register land as a TVG made before 30 January 2001 but not determined before that date should be determined by reference to the definition of “town or village green” as it existed before the amendment made by sections 98 and 103 of the 2000 Act or by reference to the amended definition that came into force on 30 January 2001. [49] The two preliminary issues came before Lightman J, who gave his judgment on them on 2 March 2007 ([2007] EWHC 365 (Ch)). His judgment is reported at [2007] 2 All ER 1000. On the first preliminary issue, the learned judge essentially held that the jurisdiction of the court under section 14(b) of the 1965 Act was not restricted to the exercise of an appellate jurisdiction. At [15] of his judgment, he said: 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 s13 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 eg which cannot now be challenged but could have been when registration took place. [50] In [20] of his judgment, Lightman J said: I accordingly hold in answer to the first question that s14 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 s14 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. [51] In respect of the second preliminary issue, the learned judge held that with regard to an application, such as the application made by Mrs Horne in March or September 1997, before the amendment made by section 98 of the 2000 Act, which came into force on 30 January 2001, the application should be determined in accordance with the definition before that amendment. [52] In the course of his judgment, Lightman J referred to the fact that both the claimant and the defendant had been anxious that all and any interested parties should be encouraged if they so wished to participate in the proceedings. The learned judge explained that Mrs Horne, for personal reasons, was unable to participate in the proceedings and the society that she represented had been dissolved; (it has since been revived). At the suggestion of the parties, the judge directed that an advertisement be placed in a local newspaper informing readers of the proceedings and of the application and inviting them to make any representations to the court in writing or orally in respect of the two preliminary issues and without a risk of incurring any liability for costs. A considerable number of persons, including Mrs Horne, did respond by letter and by petitions to this invitation. The judge explained that the thrust of their representations had been directed to the extent and character of the past user of the land and the unfairness of the challenge to the decision to register after the lapse of time since registration. In fact, the representations did not address the two preliminary issues. However, as was pointed out, the representations would be relevant and would require detailed examination at a later stage of the proceedings, when the substance of the application under section 14(b) fell to be determined. Those representations are before me. [53] Lightman J gave permission to appeal against his two rulings on the preliminary issue and the Court of Appeal (Laws, Rix and Lloyd LJJ) gave judgment on the appeal on 6 February 2008. The appeal was dismissed. In the Court of Appeal, a detailed judgment was given by Lloyd LJ, with whom Rix LJ and Laws LJ agreed. Lloyd LJ agreed with Lightman J’s approach to the first preliminary issue, in particular in [15] of Lightman J’s judgment, which I have quoted above. Similarly, Lloyd LJ agreed with the reasoning of Lightman J in respect of the second preliminary issue. [54] On 15 May 2008, the solicitor for Betterment wrote to Mrs Taylor in connection with the proposal that she be joined as a second defendant to this claim. As indicated earlier, Mrs Taylor was later made a second defendant; the order was made by consent. In the course of the letter of 15 May 2008, Betterment’s solicitor stated that it was accepted that the evidence that was given at the 2000 inquiry established that “most of the land” was used for lawful sports and pastimes for more than 20 years prior to 1997. The solicitor made it clear that the landowners’ case was that part of the land was not able to be used for a period between 1979 and 1982 by reason of the works carried out in connection with the drainage scheme. The solicitor explained that there was no question of the evidence as to the user of the land for lawful sports and pastimes having to be given all over again at the trial of the application under section 14. [55] On 4 December 2009, I gave directions as to the trial of this claim. On the application of both parties, I directed that part of the trial would take place at a suitable venue in Weymouth. I did so in response to representations that it would be helpful to the parties if I sat in Weymouth since this would facilitate the giving of evidence from people local to Weymouth, would make it easier for a large number of interested persons to attend the hearing and would make it easier for me to be taken on a conducted tour of the land. [56] The trial began in Weymouth on 9 June 2010. On the next day, I was taken to view the land and the surrounding streets. The trial continued in Weymouth on 10 and 11 June and on 14, 15 and 16 June. After the hearing on 16 June 2010, by agreement with the parties, I went on an unaccompanied tour of the land and the surrounding streets. I heard closing submissions in London on 24, 25 and 28 June 2010 and I received further written submissions from counsel for Betterment on 12 July 2010. User for lawful sport and pastimes [57] The user of the land over a lengthy period prior to the application for registration in 1997 was considered in detail by the non-statutory public inquiry in 2000 and 2001. The panel held that there had been user for lawful sports and pastimes for a lengthy period, |page:135| which included the period 1 August 1970 to the date of the application for registration. The panel applied the ruling in Sunningwell that the phrase “sports and pastimes” did not refer to two classes of activities but to a single composite class. The principal use that had been made of the land at all material times was use for recreation and, in particular, walking with or without dogs. As I have earlier described, Betterment accepted in its letter to Mrs Taylor of 15 May 2008 that most of the land (that is, with the exception of the works site) was used for lawful sports and pastimes for more than 20 years prior to 1997. There was therefore no need for that matter to be investigated and determined afresh at the trial of the application pursuant to section 14. Betterment adhered to that position at the hearing before me. [58] In its letter of 15 May 2008, Betterment accepted that it would be open to the applicant for registration to rely on any 20 years of qualifying user in the period from 1 August 1970 to the date of application for registration in 1997. At the hearing before me, Betterment resiled from this position and contended that, as a matter of law, the only relevant period was the period of 20 years immediately preceding the date of the application for registration. As it happens, it was not submitted that the identity of the relevant period mattered for the issue, which I am presently discussing, as to whether there was user for lawful sports and pastimes for a period exceeding 20 years. In all these circumstances, I proceed on the basis that the applicant for registration was able to show that the land (with the possible exception of the works site, which I will consider later) was used for lawful sports and pastimes for a sufficient period of time before the application for registration. I will separately consider whether that user was “as of right” and I will again separately consider the question of the works site. User as of right: Evidence [59] I next need to consider whether the user for lawful sports and pastimes, which it is accepted has been shown on the facts of this case, was user “as of right”. The issue in this respect is whether the user was nec vi, that is, without force, or (as it is described in the authorities to which I refer later) whether it was contentious user. Depending on my detailed findings on that issue, it may be necessary to determine whether the only relevant period of 20 years is the period of 20 years immediately preceding the date of the application in March or September 1997 or whether the applicant for registration is able to rely on any 20-year period in the period 1 August 1970 to the date of the application for registration. I will defer consideration of that issue until it is seen whether the need arises for me to determine it. I will therefore consider the evidence as to possible contentious user throughout the entire period from 1 August 1970 to the date of the application for registration. [60] Before considering the specific evidence on this subject, I ought to refer to the somewhat more general evidence on this point contained in the very many evidence forms that were signed by many people, principally from the local area in Weymouth. These evidence forms are of two types. The first form comprised a single sheet in the form of a questionnaire, where one of the questions was: “Have you ever been prevented from using the area?” Another question was: “Have you ever seen notices or fences being erected on the land or other attempts to prevent public use?” The answers provided to these questionnaires were generally in the negative to both questions, although a few of the answers appeared to be referring to a time when there was a difficulty over the claimed public right to use the footpath at Cockles Lane and possibly also referring to another time when there was a difficulty over access from back gardens abutting the land onto the land itself. There is also one reference to attempts to prevent public use when there was stock on the land, but this was said to be on a few occasions only. [61] The second type of evidence form was used in many more cases than was the first type. The second type was a form provided by the Open Spaces Society and took the form of a questionnaire. The questionnaire included three questions designed to establish whether the person completing the questionnaire had ever been prevented from using the land, or knew of anyone who had been prevented from using the land, and whether an attempt had been made by notice or fencing or by any other means to prevent or discourage the use of the land. All, or nearly all, the completed questionnaires answered these questions in the negative. Some of the completed questionnaires referred to other persons being prevented from using the land, for example, persons who wanted to use the land for motorcycle scrambling or persons who were travellers. Taking the evidence forms together, they amount to statements by a large number of persons that they were not prevented from using the land and there was no attempt by notice or fencing or any other means to prevent or discourage use of the land. [62] Betterment says that the true position as regards attempts to prevent use of the land by the public and, in particular, attempts to maintain signs and fencing, indicating that the land was not available for use by the public, is totally at variance from the impression created by the evidence forms. [63] Betterment drew my attention to the evidence given as to the grazing of the land by cattle in the period up to and including 1980. On this point, I have been provided with a series of grazing agreements entered into by the owner of the land with a farmer in the period 1963 to 1979. I also find, based on a contemporaneous document indicating that the owners received an income in respect of the grazing of the land in 1980, that there was also a grazing agreement for the grazing season of 1980, although the written agreement for 1980 has not been produced. The agreements related to all or nearly all the 94 acres and therefore included the registered land. There were three farmers who took the grazing during this period. In the period up to and including 1975, Mr Weeden was the grazier. He was followed by Mr Westmacott, who took the grazing in 1976. He in turn was followed by Mr Crees, who took the grazing in 1977 to 1979 inclusive. It is more likely than not that it was Mr Crees who took the grazing in 1980. [64] There is substantial evidence that these three farmers suffered difficulties and disturbance in their enjoyment of the land for grazing by stock. On 10 January 1976, Mr Weeden wrote to Mr Ray Curtis, the then owner of the land, turning down Mr Curtis’s offer of grazing for the 1976 season. Mr Weeden referred to the fact that he had taken the land since 1963, but in that time “the troubles and problems” relating to the use of the land had made the situation “impossible”. He referred to the difficulty of maintaining the fences against “the wire-cutting brigade”. He referred to dogs worrying his cattle. He turned down the offer of grazing in 1976 because, he said, “enough is enough”. [65] Mr Westmacott, who took the grazing in 1976, was offered the grazing again for 1977, but turned down the offer in a letter dated 24 January 1977 to Mr Ray Curtis. Mr Westmacott explained that he had visited the stock on the land daily, and on countless occasions had “had to repair barbed wire fences which were wantonly cut to provide access across the farm…”. He ended his letter by saying: “What to advise you to do with the land in view of the continued vandalism to fences, and to the harassment of stock by dogs and children, I am at a loss to suggest.” [66] On 24 October 1979, Mr Crees wrote to Mr Ray Curtis explaining that he had removed his stock from the land two months before the grazing agreement expired in that year. He referred to problems with cattle getting onto the road. He stated that he had spent a considerable sum in fencing parts of the land, but the fences had been “completely wrecked by people trampling down the fences and cutting them to gain entry to their houses”. He also referred to Mr Ray Curtis’s son having helped considerably in attempting to keep the cattle fenced in. He further referred to difficulties with young calves on the land being hounded by dogs and further problems from children firing catapults and bows and arrows at the stock. He also referred to various acts of vandalism, such as water troughs being filled with stones or overturned or broken or rolled down the hill. He ended his letter by suggesting that there should be a reduction in price for the next season’s grazing. I find that it is more likely than not that Mr Crees did take the grazing in 1980 and he achieved a modest reduction in the price for that year. [67] Mr Crees’ comments on 24 October 1979 are mirrored in an article in the local newspaper published on 30 April 1979. The article referred to cattle being worried by youths and dogs and to stone-throwing by youths. Mr Ray Curtis told the newspaper that |page:136| vandalism and cattle-worrying had been a problem for some years and that it was getting worse. [68] In 1979, the owners kept a diary of incidents that showed the problems with the fencing of the land and the keeping of stock on the land. The diary began on 25 April 1979, when the stock first arrived on the land in that year, and continued until 21 October 1979, when Mr Crees removed his stock, as he explained in his letter of 24 October 1979. It is not necessary to recite the entire contents of the diary. It is sufficient to say that there are repeated references to fences being pushed down or cut and to the consequential fact that stock escaped from the land onto the road. The diary also refers to various acts of bad behaviour by children and some acts of vandalism. [69] Much of the material I have referred to above as to the difficulties encountered in grazing the land in the period to 1979 was the subject of evidence and debate at a planning inquiry, which was held on 20 and 21 May 1980 before an inspector appointed by the Secretary of State. The owners of the land had applied for planning permission. So far as I am able to tell, the proposed development was not on the registered land but on adjoining land owned by the same persons. The inspector prepared a report dated 13 June 1980 for the Secretary of State. He recorded the owners’ case and their contentions as to vandalism on the land. The owners had told the inspector that it had been impossible to prevent trespass and vandalism. It seems that the inspector was shown the three letters from the three farmers to which I have referred and, in addition, Mr Westmacott gave evidence to the inspector. The owners’ case was that it was virtually impossible to farm the land economically in the face of that amount of vandalism and trespass. The local planning authority, resisting the appeal, produced a letter from a local farmer who apparently took the view that the land could be farmed satisfactorily in the same way as he farmed land in the vicinity, which was said to be similar. In para 64 of his report, the inspector expressed his conclusions as to the difficulties in farming the land. He acknowledged that the land suffered from trespass. He said he was not disposed to accept that farming was wholly impracticable. He suggested that the difficulties might be significantly reduced if the land were to be tidied up and farmed efficiently and seen to be farmed. However, he said that he drew “no formal conclusion on this issue”. He recommended that the planning appeal be dismissed. On 5 September 1980, the Secretary of State accepted the inspector’s recommendation and the planning appeal was dismissed. [70] On 12 October 1995, Mr Weeden signed a witness statement that was appended to the objection lodged in October 1995 to the 1994 application for registration of the land as a TVG. His witness statement referred to fences surrounding the field being very often cut or broken down so that he was regularly involved in reinstating the fences to prevent cattle from straying from the fields. He referred to one particular area where he repaired fences. He stated that on one occasion an electric fence was erected but it had been removed by the next morning. He also referred to the erection of a sign and the location of the sign. He did not say when the sign was erected and his evidence covered the period from 1963 to 1975. He stated that the sign advised the public that the land each side of the right of way was private and that the public should not go onto it. That sign was not located on the land the subject of the application for registration but was to the side of a footpath that led across land owned by the same landowners to the registered land. He confirmed that the contents of his letter of 10 January 1976 were accurate. [71] Mr Weeden gave evidence at the non-statutory public inquiry by reference to his 1995 statement. He was cross-examined by Mrs Horne and I have a transcript of his evidence. He did not depart from the evidence contained in his statement. [72] On 28 July 2009, Mr Weeden signed a further witness statement to be used in the present proceedings. Mr Weeden did not give oral evidence at the hearing. His 2009 statement is much more detailed than his 1995 statement but confirms the accuracy of his earlier statement so far as is material. Mr Weeden described the original fencing and hedging on either side of Cockles Lane. He stated that, in time, those fences and hedgerows were damaged so that cattle grazing on the registered land could cross Cockles Lane to the land to the west owned by the same landowners. Mr Weeden stated that his use of the land that forms the registered land and the land to the west was not distinguishable. He identified the location of the electric fence that had been stolen overnight. That electric fence was along a part of the boundary of the registered land. He referred to another area of perimeter hedging that he said was “regularly under attack by locals”. The area referred to was on the boundary of the registered land. He referred to another area of perimeter hedging and fencing that was “under attack”, although, in this case, it was on the boundary of the land to the west of the registered land. Mr Weeden discussed the different ways in which the public gained access to the land. Some came along the public footpaths, but “many” did not use public footpaths to gain access but went through gaps in the fences that they or others had made. Mr Weeden gave details of certain acts of vandalism on the land. He said that he knew that Mr Curtis had been chasing trespassers off the land for years. On the other hand, Mr Weeden himself did not want to provoke a confrontation with persons using the land. Mr Weeden referred again to the sign he had referred to in his 1995 statement, but on this occasion he referred to “signs” in the plural. [73] On 6 October 1995, Mr Westmacott signed a witness statement that was part of the objection lodged by the landowners in October 1995. Mr Westmacott’s statement described his experiences during the time he used the land for grazing. One difficulty in Mr Westmacott’s evidence relates to the period of time that he used the land for grazing. The written grazing agreements to which I have referred appear to show unequivocally that Mr Westmacott took the grazing only for the 1976 grazing season, in particular from 15 March 1976 to 31 December 1976. However, in his witness statement, Mr Westmacott refers to the three to four years that he used the land. Further, his witness statement refers to a report in the local newspaper of the evidence that Mr Westmacott gave to the planning inquiry and the newspaper recorded Mr Westmacott’s evidence as to “nine disastrous months in 1974 to 1975 when he rented the appeal site for grazing…”. There is no obvious way to reconcile the terms of the grazing agreements with Mr Westmacott’s witness statement. One possibility is that Mr Westmacott shared the land with Mr Weeden during the time that Mr Weeden had the benefit of his grazing agreements, but that possibility is pure speculation on my part. In the circumstances, I am able to treat Mr Westmacott’s evidence as applicable to the grazing season in 1976, but it would not be safe for me to hold that it applied to any earlier period. [74] In his witness statement, Mr Westmacott confirmed the contents of his letter of 24 January 1977. He referred to the extent to which fences were cut or broken down and had to be repaired. He referred to the many occasions on which stock had escaped from the land through gaps in fences. He also stated that he had told people to keep off the fields because they were private and, generally, he would receive abuse back. He referred to certain acts of vandalism in the fields. He also referred to signs that were erected. He described the signs “at various places around the perimeter of Mr Curtis’s land”. He stated that the signs told the public that the land was private and they should keep off it. The signs were made of white board with black lettering and red punctuation. The words “keep out” were underlined in red. The signs were regularly pulled down. Some of them were removed from the land. The signs were regularly re-erected. He clearly recalled the part of the land that he grazed that was adjoining the Leamington Road estate. He referred to re-erecting signs when he found the sign thrown in the ditch or in the hedge. Mr Westmacott died in 1999 and so was not available to give evidence at the non-statutory public inquiry. [75] Mr Barry Curtis is the son of Mr Ray Curtis and was one of the landowners before the land was sold to Betterment. Mr Barry Curtis has signed three witness statements: on 12 October 1995, 30 November 2000 and 24 July 2009. The first witness statement was part of the landowners’ objection lodged in October 1995. The second witness statement was additional evidence for use at the non-statutory public inquiry. The third witness statement was prepared for this trial. Mr Barry Curtis gave evidence at the non-statutory public inquiry and |page:137| was cross-examined and re-examined. He was also called as a witness at the hearing before me and was cross-examined and re-examined. [76] Mr Barry Curtis recounted the history of the grazing of the land by Mr Weeden, Mr Westmacott and Mr Crees. He confirmed the evidence that I have already referred to as to the difficulties caused during the time those farmers grazed the land. He also gave evidence as to various difficulties on the boundary of the land with the back gardens of adjoining houses. Those matters are of some, but I think only limited, relevance to the present issue. They have more to do with questions as to the position of the boundary of the land owned by the Curtis family and the adjoining houses. Mr Barry Curtis gave evidence as to the erection of white wooden notice boards constructed at various places around the land. He recalled that some of the signs said “Private. Trespassers will be prosecuted” and others said “Private. Keep Out”. He described the construction of the signs and that the signs were erected by a number of employees and by himself. The signs were vandalised within a brief period of time but they were re-erected or replaced. He produced a photograph of a sign that had been torn down and thrown by the wayside. He identified seven particular points where he remembered signs having been erected. In his statement of 30 November 2000, he referred to photographs of signs that had been erected in another place, a little way from the land now in question, but he stated that similar signs had been erected around the entirety of the land. Mr Barry Curtis stated that if his father, Mr Ray Curtis, or other members of the Curtis family, including himself or employees, saw people trespassing on the land, they would shout at the people trespassing, challenge them and then advise them to leave the land. Mr Barry Curtis said that he challenged people in this way “on numerous occasions” and would be met with abuse and sometimes threatened with violence. He thought that his challenges did have the desired effect of making trespassers leave. [77] When Mr Barry Curtis was cross-examined at the non-statutory public inquiry, he did not depart from the evidence in his two earlier statements. In his witness statement dated 24 July 2009, he went into considerable detail as to the various features on the land, the hedgerows and fencing of the land, the various points of access to the land and the way in which the land was used by the public. He referred to various acts of vandalism on the land. He also repeated that he and members of the Curtis Family had chased people off the land. When he was cross-examined at the trial, it was put to him that he was wrong about dates and periods of time or, alternatively, he could not recall specific dates and periods of time. I conclude that I should be somewhat cautious before I make findings about specific dates based on Mr Barry Curtis’s evidence alone. When cross-examined, he repeated his evidence about warning people off the land and about the erection of signs. When re-examined, he stated that signs were re-erected until the early 1980s and people were warned off until around the same time. [78] Mr Maurice Curtis is also the son of Mr Ray Curtis and is the brother of Mr Barry Curtis. Mr Maurice Curtis signed a witness statement on 12 October 1995 and a further witness statement on 22 November 2000. The first witness statement formed part of the landowners’ objection lodged in October 1995. The second witness statement was prepared for the non-statutory public inquiry. Mr Maurice Curtis gave evidence at that inquiry and was cross-examined. He stated that he clearly recalled notices along Cockles Lane in four positions in particular. As I have already described, Cockles Lane is a lane or footpath that divides the land owned by the Curtis family/Betterment to the west and the registered land to the east. Mr Maurice Curtis referred to other signs on various parts of the Curtis land. In his second witness statement, he referred to a photograph of a sign that had been displayed some way from the registered land, in a position alongside Chickerell Road. The sign read: “Private. Keep out. No tipping of rubbish.” Mr Maurice Curtis stated that this sign was one of approximately 12 that had been made for the Curtis family by a Mr Sackley. The signs had different wording on them, but all the wording included the words “private” and “keep out”. These 12 signs were displayed around different parts of the land at which the public were obtaining access to the field. Mr Maurice Curtis stated that soon after the signs were erected, which he thought was in the period 1985 to 1990, he found that all the signs had been torn out of the ground and vandalised. He said the tearing down of signs was a regular occurrence. He described the visits he had made to the land over the years and stated that “sometimes” while he was on the land he would encounter members of the public and he would advise them they were on private property and that they should leave. When cross-examined at the non-statutory public inquiry, Mr Maurice Curtis did not depart from this evidence. He was also asked questions by a member of the panel and he stated that there was an ongoing problem with the signs in that the Curtis family put the signs up and they would be taken down; he said it was “a losing battle”. [79] Mr John Newton is the brother-in-law of Mr Barry Curtis and Mr Maurice Curtis. He signed a witness statement on 10 October 1995. That witness statement formed part of the landowners’ objection lodged in October 1995. He lived near the land in the period 1966 to September 1971. During that period, he frequently warned people who had strayed off the right of way that the remainder of the land was private and they should keep off it. He recalls challenging a person dumping rubbish on the land in around 1993. He also helped with the mending and erection of fences around the perimeter of the land. In 1988, he helped close off a gap in a hedge that gave access to and from Lanehouse Rocks Road, which is on the western perimeter of the land owned by the Curtis family. He also assisted in the re-erection of a two-pole fence at the entrance to Markham Avenue. Mr Newton also recollected a wooden noticeboard painted white with black writing approximately 14in by 12in in size. This noticeboard had been erected towards the northern end of Cockles Lane. The notice was there when Mr Newton was living nearby in the period 1966 to September 1971. The notice told the public not to stray off Cockles Lane. Mr Newton did not give oral evidence before the non-statutory public inquiry. The panel was told that Mr Newton had not attended the inquiry because he was deaf. [80] Mr Anthony Ward signed a witness statement on 11 October 1995. That witness statement formed part of the landowners’ objection lodged in October 1995. Mr Ward stated that he had seen signs cut or trampled down and that members of the public ignored fences and notices advising them that the land was private. The notices said that the land was private and that trespassers would be prosecuted and that they should keep out. Mr Ward identified by reference to a plan five positions where such signs were erected. He stated that these signs had been in place in the 20 years before his statement. He is there referring to a period from 1975 to 1995. One of the places pointed out by Mr Ward was towards the north end of Cockles Lane and another place was half-way along Cockles Lane. Mr Ward described the appearance of the signs. He said that many of them were pulled down or broken, whereupon members of the Curtis family and employees would re-erect the notices only for vandals to strike again no sooner than the signs were replaced. Mr Ward also records that “Mr Curtis” would warn off trespassers from the land. It is not clear which Mr Curtis Mr Ward was referring to. Mr Ward’s statement was available at the non-statutory public inquiry. [81] Mrs Molly Ward is the wife of Mr Ward. She signed a witness statement on 11 October 1995. Her statement formed part of the landowners’ objection lodged in October 1995. Mrs Ward agreed with her husband’s statement. She added that she recalled seeing a sign advising the public that the land was private, which sign had been pulled up and thrown into the hedge. She dated this memory to being “during the last 10 years”, which places it in the period 1985 to 1995. She marked the position of the sign on a plan showing the sign to be towards the northern end of Cockles Lane. Mrs Ward’s statement was available at the non-statutory public inquiry. [82] Mr Quartermaine signed a witness statement on 16 October 1995. This witness statement was part of the landowners’ objection lodged in October 1995. Mr Quartermaine recalls a notice erected near to the public footpath and near to Markham Avenue. The notice advised the public that the land to either side of the footpath was private and that they should not trespass on it. Mr Quartermaine states that he clearly recalls the notice was there approximately 18 years before the |page:138| date of his statement, that is, in 1977. Mr Quartermaine stated that he had spoken to several of his neighbours in Markham Avenue and they also recalled the notice, believing it to be white with black or blue lettering. Mr Quartermaine’s statement was read at the non-statutory public inquiry. [83] Mr Pashen worked for Mr Ray Curtis and later for Mr Barry Curtis between 1956 and 1980 as a farm manager. He signed a witness statement on 11 October 1995. That witness statement was part of the October 1995 objection. He referred to the need to repair fences because the fences were so often cut down by people walking onto the land. Mr Pashen referred in some detail to the signs that had been erected. He said they were erected at least a couple of times a year at strategic points on the extremity of Mr Curtis’s land and at the edge of the rights of way over the land. Although he could not recall the exact wording of the signs, the purpose of the signs was to inform members of the public that the land was private and that they should keep off it. The signs were made of wood and painted white with black lettering. The signs were often erected in places where members of the public had cut through the wire fences. The public would regularly pull up or break down the signs. If it were possible, Mr Pashen would re-erect the signs. He referred to the specific locations of signs, and among those locations were several positions along Cockles Lane. He added that there were many other signs erected, for example where the public cut through a fence or destroyed a hedge. Mr Pashen added that if he saw trespassers on the land he would tell them to get off the land. Mr Pashen’s statement was read to the non-statutory public inquiry. Mr Pashen attended the third day of the inquiry, when he was tendered for cross-examination but he was not cross-examined. [84] Mr Sackley signed a witness statement on 22 November 2000 and gave evidence at the non-statutory public inquiry. In his statement he said that approximately eight or nine years earlier he had been contacted by Mr Maurice Curtis and had made a number of signs, he believed approximately 12 in number, which Mr Maurice Curtis wanted to erect around the land in question. Mr Sackley made 12 signs out of hardboard, which he painted white with black lettering. The signs had different wording, but the wording included words such as “Keep out”, “Private” and “Private — no tipping”. Once he had made the signs he delivered them to Mr Maurice Curtis to be erected on site. When he was cross-examined at the inquiry by Mrs Horne, she contented herself with telling him that “we” had not seen the signs. She did not otherwise challenge his evidence. Mr Sackley was questioned by a member of the panel and he confirmed that he made the signs in around 1991 or 1992, or some such date. [85] Mr Petchey asked me to consider the evidence given by various witnesses at the public inquiry who spoke in favour of the application for registration. With regard to the question of signs and fencing, he referred in particular to the evidence of Mrs Dyer, Mr Noakes, Mr Underhill, Mr Coombs, Mr Garrett, Mr Best, Mr Wolsey, Mrs Horne, Mrs Whyte and Mrs Kane. [86] Mrs Dyer said that she had never been prevented from using the land. When cross-examined, she said that she had never seen a notice or sign anywhere. Mr Noakes said that the fields were not fenced at the point nearest to where he lived in Roundham Gardens. Mr Underhill, when cross-examined, stated that he had never been prevented from using the land and had never seen any notices preventing him from using the land. He said it was easy to get onto the land through gaps in the perimeter. He thought it was possible that the fences had been deliberately broken in order to get access. Mr Coombs, when cross-examined, stated that he had never been prevented from using the land. Mr Garrett, when cross-examined, stated that he had never been challenged when using the land. He said that there were fences but that they were broken and rusted away and lying on the ground. Mr Best, when cross-examined, stated that he had never been prevented from using the land and had never seen a notice suggesting that he should not use the land. He had never met anyone who had indicated that he should not use it. He had never damaged anything that looked like a fence and had never seen anyone doing so. He thought the fences and boundaries were decayed through neglect and had rusted and rotted. Mr Wolsey referred to the erection of a fence. That seems to be a reference to the time when Mr Curtis erected a fence across Cockles Lane that led to Mrs Horne cutting the fence and later led to Mr Curtis being prosecuted for obstructing the footpath. Mrs Horne said that she had never seen any notices, although it was put to her that in an earlier statement she had referred to notices being erected on the right of way. Mrs Whyte, when cross-examined, said that she had not seen any signs. Mrs Kane referred to hedges and walls being destroyed. She suggested that this was done by the landowners to render the land derelict. Findings of fact as to contentious user [87] I have referred in some detail to the evidence before me on the various matters of fact in respect of the argument that user was contentious for a period in the past. In summary, that evidence related to the use of the land for grazing, the interference with the use of the land for grazing, acts of vandalism on the land, destruction of fences and hedges, the erection of signs, the destruction of signs and the warning off of members of the public who had strayed from the footpath. [88] Before making my findings on these matters, I ought to comment on the reliability of the various sources of evidence. The only witness who gave oral evidence before me on these questions was Mr Barry Curtis. I accept that he was an honest witness trying to do his best to recall matters of detail, some of which had occurred a long time ago. I am sure that Mr Curtis was not always right on matters of dates and I am therefore cautious about making precise findings as to the dates of certain events based on the evidence of Mr Barry Curtis alone. [89] The other evidence that is relied on by Betterment and by the second defendant was not the subject of oral evidence before me, but I must none the less do the best I can to assess its value and give it appropriate weight, having regard to the detail of the evidence and the extent to which it is supported by other evidence or, conversely, contradicted by other evidence. As regards the witnesses who provided the evidence now relied on by Betterment, I do not get any real sense that there was an attempt to mislead. Of course, their evidence may have been inaccurate because they had misremembered or overstated the relevant events. [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 that 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 16 years of total absence of signs and the 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 were not registered as a TVG 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. [91] I have referred in detail to the evidence in the documents relating to the interference with grazing activities on the land while the land was let for grazing to Mr Weeden, Mr Westmacott and Mr Crees. As to whether there was grazing on the land in 1980, I have already stated my finding, on the balance of probabilities, that the land was grazed in the grazing season in 1980, probably by Mr Crees, but if not by him then by someone else. [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 |page:139| 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 led only to further gaps being created or recreated 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 that 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 that 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 was 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 that occurred in respect of the water trough and some basic farm buildings 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 that 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, that 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 that are relevant in this way would have made it clear that members of the public were being told that they were not entitled to leave the footpaths. That was because the land apart from the footpaths was “private” or that the public was to “keep out” of that land or that its 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. Mr 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 Mr Maurice Curtis and Mr Sackley are wrong about these dates and that the time when Mr Sackley constructed the signs and when Mr Barry Curtis erected those signs and when Mr 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 was 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 it would obtain planning permission for the 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 warnings-off occurred and the extent of them. 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 its 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. It gave up re-erecting the signs. It 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 it gave up later. If it is necessary to identify a time by which it had stopped taking action in respect of fences, signs and warnings-off, I would, on the balance of probabilities, place that time as being shortly before the middle of the 1980s. For the sake of the later discussion, it does not matter if that state of affairs came about in 1983, 1984 or 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. [97] What I have described, whether it is or is not sufficient to produce the result that the user was contentious, does mean that it is not necessary for me to decide which 20-year period is the relevant 20-year period. If the relevant 20-year period begins on 1 August 1970 or at any time after that date, such a 20-year period includes a substantial period of use of the kind that I have described and I will in due course have to consider whether that user is contentious or not contentious. If the relevant 20-year period is measured back from the date of application for registration so that it is from a date in 1977 to a date in 1997, again, that 20-year period includes a substantial period during which the user is as I have described. [98] It therefore emerges that it is not necessary for my decision in this case for me to rule on the question as to what the unamended definition (which applies in this case) of TVG requires as to the relevant 20-year period. In Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 AC 674*, the House of Lords left the point open: see, in particular, per Lord Hoffmann in [43]. Only Lord Rodger expressed the view, in [116], that the relevant 20-year period relied on by the applicant for registration need not continue until the making of the application. At the earlier stages in this litigation, it seems to have been common ground that Lord Rodger’s view was the correct one: see per Lightman J in [2007] EWHC 365 (Ch); [2007] 2 All ER 1000 in [24] and per Lloyd LJ in [2008] EWCA Civ 22; [2009] 1 WLR 334 at [2]. In those circumstances, if I had to decide the point, I would have been inclined to follow the view of Lord Rodger, but because the point is not essential in this case I will leave it open. ————————————————————————— * Editor’s note: Also reported at [2006] 2 EGLR 95 ————————————————————————— Law as to contentious user [99] I have set out my findings of fact in respect of the question of whether the user relied on in this case was nec vi, that is, without force. In order to reach a conclusion on this issue, I need to identify the legal principle that is to be applied to those findings of fact. I will start by considering the general legal principle that imposes the requirement that the user relied on must be “as of right” and the meaning of that phrase. [100] The relevant legal principles were stated by the House of Lords in Sunningwell Parish Council, in particular, in the speech of Lord Hoffmann. That case concerned the requirement of “as of right” in section 22 of the 1965 Act. Lord Hoffmann considered the requirement that the user be as of right in the context of the acquisition of private easements by prescription and, in particular, prescription under the Prescription Act 1832. He also considered the meaning of the same |page:140| words in the Rights of Way Act 1932 (the 1932 Act), the relevant provisions now being contained in section 31 of the Highways Act 1980 (the 1980 Act). He said at pp350H-351B: It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner. (For this requirement in the case of custom, see Mills v Colchester Corporation (1867) LR 2 CP 476, 486.) The unifying element in these 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 first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period. So in Dalton v Angus & Co (1881) 6 App Cas 740, 773, Fry J (advising the House of Lords) was able to rationalise the whole of prescription as follows: “the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.” [101] This statement as to the meaning of “as of right” in section 22 of the 1965 Act has since been applied by the House of Lords in R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 AC 889* and by the Supreme Court in R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11; [2010] 2 AC 70†. ————————————————————————— * Editor’s note: Also reported at [2004] 1 EGLR 94 † Editor’s note: Also reported at [2010] 1 EGLR 153 ————————————————————————— [102] Lewis did not itself turn on the meaning of nec vi, but Lord Rodger of Earlsferry JSC discussed the meaning of nec vi in an important passage in his judgment in [87] to [92]. It does not appear from the report of the argument in Lewis at pp72-75, that the Supreme Court heard submissions as to the meaning of nec vi. However, counsel in the present case accepted what was said by Lord Rodger in this passage. It is helpful, therefore, to set out the passage at [87] to [92] in full and then to consider other statements in the authorities on the meaning of nec vi. Lord Rodger said, with regard to the phrase “as of right”: [87] The basic meaning of that phrase is not in doubt. In R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 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.43.24.1.5-9, 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 Sturgesv v Bridgman (1879) 11 Ch D 852, 863, 43 JP 716, 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 supplied.] 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 [2000] 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.” [103] Lord Rodger there referred to a statement by Bowen J in Dalton v Henry Angus & Co (1881) LR 6 App Cas 740, at p786. Bowen J referred to the earlier case of Eaton v Swansea Waterworks Co (1851) 17 QB 267. [104] In Eaton, the plaintiff claimed to have acquired by prescription a right to draw water from the defendant’s watercourse. Under the statute that created the defendant, it was entitled to bring proceedings before the justices complaining of the unlawful drawing-off of water from its watercourse. The defendant brought such a complaint against a servant of the plaintiff and the servant was convicted and fined. The plaintiff’s son went with the servant before the justices and paid the fine. At the trial of the plaintiff’s claim to have acquired a right by prescription, the trial judge declined to leave evidence of this conviction to the jury. In the course of the summing up, a member of the jury asked the trial judge what the position would be if, during the relevant 20-year period, there had been “a perpetual state of warfare between the parties”. The question put by the trial judge to the jury was whether the plaintiff had drawn water from the watercourse as of right for 20 years. The jury answered in the affirmative and added the words “and without interruption for a year”. On appeal, the Court of Queens Bench ordered a new trial. Lord Campbell CJ said, at p273, that the acquiescence of the plaintiff in the conviction was evidence of an acknowledgement that the plaintiff did not enjoy as of right. The weight to be given to that fact was a matter for the jury. It was also said that the question from a member of the jury indicated that the jury might have thought that there was perpetual warfare between the parties so that the easement was not as of right but “contentious”. Patteson J drew attention to the fact that the judge did not give the jury any specific guidance as to what enjoyment “as of right” amounted to. Erle J said that if the enjoyment was “contentious” it was not of right. [105] The question of contentious user was considered again in Lyell v Lord Hothfield [1914] 3 KB 911. The plaintiff claimed to have acquired by prescription a right of common over the land of the defendant. For a lengthy period, there was uncertainty as to the boundary of the defendant’s land with the plaintiff’s adjoining land. For a considerable period, the plaintiff’s sheep had grazed on what later |page:141| turned out to be the defendant’s land and the defendant’s sheep had grazed on what later turned out to be the plaintiff’s land. The judge, Shearman J, referred, at p915, to there being “not infrequent disputes” between the shepherds as to who owned the relevant land on which the sheep grazed. The judge stated that these disputes did not lead to blows or to legal proceedings, although on one occasion one of Lord Hothfield’s tenants consulted a solicitor, which wrote a letter. It was held that the user relied on was not as of right because it was contentious and not acquiesced in by the owner of the allegedly servient tenement. The judge referred to the decision in Eaton and to the comment of Bowen J in Dalton. [106] Contentious user was again considered in Newnham v Willison (1988) 56 P&CR 8. In that case, the plaintiff claimed to have acquired a certain right of way by prescription over the defendant’s land. It was necessary to consider whether user had become contentious at a particular point in time. The principal judgment in the Court of Appeal (Kerr LJ and Eastham J) was given by Kerr LJ. He referred to textbook authority and to Eaton, Dalton and Lyell. He said, at p19: In my view, what these authorities show is that there may be “vi” — a forceful exercise of the user —- in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious. If he then overcomes the objections, and in particular if he overcomes them in a physical way, expressed by the word “vi” or “force”, such as by removing an obstruction, then that is sufficient evidence to show that on the one hand the owner of the servient land was objecting to the use, so that the user was no longer as of right, and on the other hand that the person who claims the right was aware that he was not exercising it as of right but in the face of objections by the servient owner. In that case, the servient owner had erected a post so as to restrict the extent of the user by the plaintiff to user authorised by an express grant of a right of way and, for a similar purpose, placed stones and other obstacles on the land. It appears that the post and the stones and other obstacles were removed by the plaintiff after a short interval, but the user by the plaintiff thereafter was held to be contentious and not as of right. In that case, the plaintiff’s solicitor had written to the defendant complaining about the obstructions to the track. Eastham J stated that when the letter was written it showed that there was a contentious situation between the parties. [107] Some of the earlier cases on contentious user were referred to again in Smith v Brudenell-Bruce [2002] 2 P&CR 4. Pumfrey J summarised the legal position in [12] in these terms: 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. [108] In that case, the servient owner had written two letters (on 28 September 1998 and 22 October 1998) making it clear, in strong terms, that the servient owner objected to the user of a track. The judge’s decision in [18], although he said he felt considerable doubt over the question, was that the user was contentious from the date of the second letter, although the two letters stood alone and the servient owner did not take any further steps in respect of the continuing use of the track either by way of written complaint, physical obstruction (which might have been impracticable) or action. He held that the objection in the letters was proportionate to the use complained of. [109] A point as to contentious user arose in Dennis v Ministry of Defence [2003] EWHC 793 (QB); [2003] 2 EGLR 121. The plaintiff complained of the noise caused by noisy aircraft flown by the Ministry of Defence (MoD) in the airspace above the plaintiff’s land. The judge held that the MoD was guilty of an actionable nuisance to the plaintiff. The MoD argued that the user had continued for more than 20 years and that it had acquired by prescription a right to do what would otherwise be an actionable nuisance. This defence was rejected on two grounds. One ground was that the user was not as of right: see [54]. The plaintiff had not consented to the nuisance nor acquiesced in the nuisance. He had complained strongly even to the point of involving his member of parliament. The MoD’s fixed position was that flying would continue and the plaintiff was powerless to stop it. The user was contentious and not as of right. [110] In Field Common Ltd v Elmbridge Borough Council [2005] EWHC 2933 (Ch)*, it was held that the user of a track was not as of right because the user was contentious. The servient owner had written a number of letters in the period 5 December 1989 to 14 July 1993 complaining of the user, and in two of the letters there was a reference to a possible claim to an injunction to restrain the user. The judge held in [44] that the user was contentious and not as of right. ————————————————————————— * Editor’s note: Reported at [2006] PLSCS 3 ————————————————————————— [111] Apart from Lewis, the cases referred to above concerned the law of prescription in respect of private easements. In a case concerning a private easement, the court is usually concerned with user by one person or by a few persons. In a case concerning a TVG, the court is usually concerned with user by a large number of persons. None the less, the principles laid down with regard to private easements have been directly applied to the question of whether an alleged village green has been used “as of right”. As will be seen, many of the village green cases that involved arguments as to contentious user were concerned with the effect of notices placed on the land by the landowner addressed to users of the land. [112] The first case as to contentious user in respect of a village green is R (on the application of Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin); [2004] JPL 975†, decided on 10 November 2003. This case did not concern a notice erected on the land. The relevant history was as follows. On 5 July 2000, the local residents applied for registration of certain land as a TVG. On 15 December 2000, the landowner’s solicitor wrote a letter to the local authority objecting to this application. The letter of objection stated that the applicants had not established that the land was a registrable TVG. Correspondence between the landowner’s solicitor and the local authority continued until April 2001. On 18 April 2001, the landowner’s solicitor wrote again to the local authority reiterating its earlier objections. The local authority provided the correspondence to the applicants. On 8 June 2001, the local authority informed the landowner that the applicants had withdrawn their application for registration. On 5 October 2001, a fresh application for registration of the land as a TVG was made and the landowner’s solicitor objected to that application on 2 May 2002. In this letter of objection, it was contended that any previous user of the land as of right ceased when the landowner objected to the previous application because that objection made the user contentious from that time. Sullivan J dealt with this point in [62] to [71]. He referred, in particular, to Newnham. He accepted that the correspondence did not amount to a state of “perpetual warfare”. He held that if the applicants for registration had refuted the objections and persisted with their application it might well have been reasonable to have expected the landowner to do more to resist the exercise of the claimed right, for example by erecting fencing or putting up notices. However, the reaction of the applicants was to withdraw their application to register the land as a village green. From the landowner’s perspective, it had “seen off” the applicants’ contention that its land was a village green and it did not need to do any more to make it plain that it was not acquiescing in the acquisition of village green rights over its land. Accordingly, the applicants’ user of the land did not continue to be “as of right” after they withdrew their first application on 8 June 2001. ————————————————————————— † Editor’s note: Also reported at [2004] 1 EGLR 85 ————————————————————————— [113] Beresford was decided on 13 November 2003. Beresford concerned an issue as to nec precario rather than an issue as to nec vi. Lord Walker of Gestingthorpe, in [72], referred to the consequence of a landowner erecting a sign on the land giving the public permission to enter the land subject to such permission later being withdrawn and the possibly different consequence of a notice stating “private land — keep out”. Lord Walker suggested that the landowner with a prohibitory |page:142| notice would be in a less strong position if its notice were ignored by the public than the landowner that had erected a permissive notice. [114] In Oxfordshire County Council v Oxford City Council [2006] Ch 43, in the Court of Appeal, Carnwath LJ, when describing the facts of that case, stated that the council had erected a notice on the land that stated: “Access prohibited except with the express consent of Oxford City Council.” Carnwath LJ stated that the purpose of the notice was to put an end to the period of qualifying use by ensuring that it could no longer be “as of right”. [115] A question as to the effect of a notice was raised at first instance in R (on the application of Lewis) v Redcar and Cleveland Borough Council [2008] EWHC 1813 (Admin)*. The issue concerned certain signs erected in 1998 that stated: “Cleveland Golf Club Warning It is dangerous to trespass on the golf course.” In that case, the inspector, who had conducted a non-statutory public inquiry into the matter, had advised the local authority that the signs were sufficient to make user following the erection of the sign no longer as of right. Counsel for the applicants for registration accepted in argument, having regard to the way in which the matter was described by Carnwath LJ in Oxfordshire, that prohibitory notices could have the effect of rendering subsequent use otherwise than as of right. The issue in the case therefore turned on whether the notices were sufficient to have that effect. In [22], Sullivan J pointed out that it would have been easy to erect notices stating “Private property. Keep out” or “Do not trespass”. He commented that the objections in Cheltenham had succeeded, whereas in Lewis the notices had no practical effect on the use of the land. He held that no landowner could reasonably have concluded that by erecting the notices in 1998 it had made it sufficiently clear that it was not acquiescing in the continued use of the land for recreational purposes by local users. ————————————————————————— * Editor’s note: Reported at [2008] PLSCS 212 ————————————————————————— [116] The effect of notices was again considered in R (on the application of Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin); [2010] LGR 631†. The notices in that case read: “No public right of way.” The judge, HH Judge Waksman QC, sitting as a judge of the High Court, referred to Pumfrey J in Smith in [12] and, in particular, to the passage that refers to the servient owner “doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user”. The judge then referred to Sullivan J’s decision in Lewis and to the terms of the notice in Oxfordshire County Council. He then set out the following principles: [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. In my judgment the following principles also apply: (6) Sometimes the issue is framed by reference to what a reasonable landowner would have understood his notice to mean — that is simply another way of asking the question as to what the reasonable user would have made of it; (7) Since the issue turns on what the user appreciated or should have appreciated from the notice, it follows that evidence as to what the owner subjectively intended to achieve by the notice is strictly irrelevant. In and of itself this cannot assist in ascertaining its objective meaning; (8) There may, however, be circumstances when evidence of that intent is relevant, for example if it is suggested that the meaning claimed by the owner is unrealistic or implausible in the sense that no owner could have contemplated that effect. Here, evidence that this owner at least did indeed contemplate that effect would be admissible to rebut that suggestion. It would also be relevant if that intent had been communicated to the users or some representative of them so that it was more than merely a privately expressed view or desire. In some cases, that might reinforce or explain the message conveyed by the notice, depending of course on the extent to which that intent was published, as it were, to the relevant users. ————————————————————————— † Editor’s note: Also reported at [2010] 2 EGLR 171 ————————————————————————— [117] It will be seen that the judge in that case adopted the statement made in Smith that the relevant conduct by the landowner need only be proportionate to the user in question. The judge added a footnote explaining why he had reservations about the reference in Smith to the extent of the necessary conduct being qualified by the means of the landowner. He said: The reference to means by Pumfrey J seems to have its source in the quotation in the judgment from Dalton v Henry Angus & Co, Comrs of HM Works and Public Buildings v Henry Angus & Co (1881) 6 App Cas 740 at 773 where Fry J quotes Willes J’s reference to the need of a party claiming a right by acquiescence to show that the servient owner could have done some act to put a stop to the claim “without an unreasonable waste of labour and expense”. That suggests that reasonableness comes into any means-related argument. So a simple consideration of means does not seem to be enough. Hence my reservation about Pumfrey J’s formulation. [118] Judge Waksman then considered the facts of the case in detail and concluded that the notices did not render contentious the recreational use relied on by the applicants for registration. In summary, the judge held that the notices were directed to the use of paths crossing the land and should not be understood as referring to the recreational use relied on. [119] My attention was also drawn to authorities on the 1932 Act (Fairey v Southampton County Council [1956] 2 QB 439) and section 31 of the 1980 Act (R (on the application of Godmanchester Town Council) v Secretary of State for the Environment [2007] UKHL 28; [2008] 1 AC 221*). There is considerable discussion in those authorities as to the effect of erecting notices on the relevant land. However, I am not able to apply statements in those cases directly to the present context. Under the 1932 Act and section 31 of the 1980 Act, there are express provisions dealing with the effect of a notice and, indeed, with the circumstances where a notice is torn down or defaced. It may be that there is one passage in the speech of Lord Hoffmann in Godmanchester that has a bearing on the effect of a notice on the question of whether user that is contrary to the notice can be as of right. In [24], Lord Hoffmann gives the example of a notice that states “No right of way. Trespassers will be prosecuted”. He suggested that if for upwards of 20 years members of the public ignored the notice and used the way openly and apparently in the assertion of a right to do so, the user would be as of right even though the notice would allow the landowner to take advantage of the proviso to section 31(1) of the 1980 Act and thereby demonstrate that there was no intention to dedicate the land as a public right of way.|page:143| ————————————————————————— * Editor’s note: Also reported at [2007] 3 EGLR 119 ————————————————————————— Contentious user: Application of principles to facts [120] I will now seek to apply the above legal principles to the findings of facts that I have earlier made. The question is whether the user that I have described was contentious user, within the meaning given by the authorities, so that the user was not as of right. In my view, in attempting to answer this question, it is not appropriate to consider one part of the evidence of objections to the user separately from other parts of such evidence. Accordingly, I will not consider what the situation would have been had the user been the subject of the signs erected by the landowner but without any other relevant feature, such as breaking down fences or ignoring warnings-off. It seems to me that I should consider the picture in the round, taking all relevant features into account so as to assess their combined effect. [121] The parties did not dispute that the test identified by Pumfrey J in Smith was a useful general test to be applied for this purpose. I will adapt that test for a case of a TVG 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 Oxfordshire & Buckinghamshire. 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 that I have found to have existed would appreciate that the landowners objected and continued to object to that use of the land and that the landowners 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 onto 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 that 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 landowners were 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. [123] This conclusion means that the user that has been relied on by the applicant for registration, whether in the period beginning 1 August 1970 or in the period measured back from the application in 1997, does not extend to a period of 20 years’ user as of right, that is, without contentious user. [124] In presenting his arguments for the second defendant, Mr Petchey urged me to make findings of fact different from those that I have now made. He did not submit that if I made those findings of fact I should none the less hold that the user was not contentious because the owners of the land had failed to take some further steps that might have been open to it. None the less, I will consider what other steps might have been open to the landowners. [125] In the period during which I have held that the user was contentious, it is difficult to see what more practical steps the landowners should have taken. In particular, I have considered whether the landowners should have taken the step of fencing along the footpaths so as to confine a user of the footpath to that land and prevent such a person getting onto the non-footpath land. During the time the land was grazed, fencing the footpath would have been an inappropriate thing for the user of the land to have done because it would have seriously interfered with the use of the land for grazing. When the land ceased to be used for grazing, I would hold that fencing the footpaths would be likely to be futile. After all, the landowners had tried and failed over a lengthy period to maintain fences on the perimeter of the land. It is unlikely that the landowners would have been any more successful in trying to maintain fences along the footpath and, in my view, the landowners would have been even less successful. [126] Mr Petchey did not argue that the landowners should have brought some form of court proceedings to obtain orders that could be enforced against persons trespassing on the parts of the fields that were away from the footpaths. None the less, I have considered whether it ought to have been apparent to the landowners that legal action was called for and anything short of legal action would be ineffective, so that failure to take legal action would amount to acquiescence in the user. This raises the question of what legal action the landowners could have taken. In my judgment, the landowners could not have brought proceedings for possession of the land. The landowners had not been ousted from possession and the persons using the land were not in possession. This basic principle has recently been restated by the Supreme Court in Secretary of State for the Environment, Food and Rural Affairs v Meier [2008] EWCA Civ 903; [2009] 1 WLR 828. As a result of recent case law, the court is now familiar with the concept of an injunction against persons unknown: see Bloomsbury Publishing plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch); [2003] 1 WLR 1633, Hampshire Waste Services Ltd v Persons Unknown [2003] EWHC 1738 (Ch)* and South Cambridgeshire District Council v Persons unknown [2004] EWCA Civ 1280†, approved by the Supreme Court in Meier. However, as explained in Bloomsbury Publishing, the approach adopted in that line of authority was seen to be legally possible only following the introduction of the Civil Procedure Rules and, in my judgment, in the 1980s the landowners would not have been advised that such a course of action was open. It may be that the landowners could have been advised, in the 1980s, that it was open to them to claim an injunction against the user of the land where they were able to name a defendant and to seek an order from the court that the named defendant be treated as representing all other persons engaged in the activity of which complaint is made: see Bloomsbury Publishing in [10] per Sir Andrew Morritt V-C. Thus, it may well have been the case that it would have been open in law to the landowners to have brought legal proceedings seeking an injunction in that way. ————————————————————————— * Editor’s note: Reported at [2004] Env LR 9 † Editor’s note: Reported at [2004] 4 PLR 8 ————————————————————————— [127] I return to the basic question that falls to be answered, that is, whether the action of the landowners in the period up to, say, 1984 amounted to acquiescence by them in the user of the land or whether such user remained contentious and not as of right. In my judgment, the right reaction to the findings of fact that I have made is that the steps taken by the landowners that fell short of legal proceedings was proportionate to the user in question and that they had done enough to bring home to the persons using the land that the user was contentious and not as of right. In other words, I am not prepared to hold that the landowners were acquiescing in the user just because they did not add legal proceedings to the other steps they were taking to attempt to stop the user. Thus, I think that Mr Petchey was right not to argue that the user became user as of right because the landowners did not bring legal proceedings of some kind in an attempt to stop the user. [128] I have used the words “at least” in [122] above because I can see that there is room for argument as to the position after, say, 1984. It could be argued that the contentious user up to 1984 and the fact that the landowners could not in practice prevent the user from continuing |page:144| meant that they had done all they could to prevent that user, with the result that the user was contentious after 1984. It could therefore be said that the landowners should not be regarded as acquiescing in the user after 1984. The alternative argument would be that there was acquiescence after 1984 because the landowners had stopped their practical attempts at resisting the user and did not resort to legal means to resist the user. [129] If it were necessary to examine the position after, say, 1984, and if the facts were that the physical steps to obstruct the user wholly ceased and no legal proceedings were threatened or brought, it might become progressively more difficult as the years went by to continue to say that the continuing user was contentious. Conversely, it might become increasingly possible to say that the landowners had acquiesced in such continuing user. On the facts of this case, having made a finding that the user remained contentious until, say, 1984, it is not necessary to explore any further the correct legal analysis in respect of the period after that time. Effect of October 1995 objection [130] In view of my above conclusions, it is not necessary to consider the separate point made by Betterment that the objection made by the previous landowners in October 1995 rendered user of the land after October 1995 contentious and not as of right. However, since the matter involves some findings of primary fact and is a relatively self-contained point, I will make my findings and state the conclusions that I would have reached if the point had been a live one. [131] The basic facts that are relevant are as follows. On 15 December 1994, Mrs Horne applied for registration of a new green under section 13 of the 1965 Act. The county council invited a response from the landowners. After an extension of time for lodging that response, the landowners lodged a response on 19 October 1995. The response took the form of a detailed report supported by a large number of witness statements with their exhibits. In large part, the report and the witness statement were backward-looking. In particular, they focused on the period 1970 to 1990, which was understood to be the period relied on by the applicant for registration, as to relevant user of the land. [132] The landowners objected to registration on various grounds. The first was that any relevant user was not by the inhabitants of a locality as required by the statute. The second objection was that the user was not as of right. This objection was on three grounds. The first ground was that the user was not without force. The other two grounds referred to stealth or secrecy and permission. The objection that related to contentious user referred to the period from 1970 to 1990. The conclusion to the report stated that trespass on the land had been strenuously resisted from the 1950s “to the present day”. I have already quoted parts of the statements of Mr Barry Curtis and Mr Maurice Curtis. Mr Barry Curtis said that when the public “have walked across the land” they “are trespassing” and “are there without permission”. Mr Maurice Curtis said that the public “were trespassing”. The landowners’ objection was provided to the applicant for registration and Mrs Horne replied to the objection. She made submissions as to the meaning of “locality”. She also dealt with the allegation that the user was contentious. She questioned much of the evidence relied on by the landowners and, in particular, stated that the notices relied on had not existed. [133] In November 1996, the county solicitor prepared a report for the rights of way subcommittee that was due to meet on 21 November 1996. He summarised the application, the legal principles as he saw them, the landowners’ objection and Mrs Horne’s reply. He recommended that the application for registration be refused essentially on two grounds. These were the points relating to locality and the fact there was no evidence of sports as well as evidence of pastimes. The rights of way subcommittee met on 21 November 1996, accepted this recommendation and refused the application. [134] After the refusal of 21 November 1996, Mrs Horne continued to correspond with the county council. Some of the correspondence may not have been included in the trial bundle. At any rate, by 5 February 1997, Mrs Horne wrote to the county council asking them to consider the matter further. On or around 17 March 1997, she endeavoured to make a further application for registration. [135] Meanwhile, on the ground, there does not appear to have been any change in behaviour. Whatever user of the land was occurring before October 1995 continued after October 1995 without alteration. [136] Having set out the relevant facts, I can now discuss whether the terms of the 1995 objection had the result that user following October 1995 was contentious and not as of right. This question could potentially arise in two slightly different circumstances. The first set of circumstances would be that the user was contentious until, say, 1984, then there was acquiescence after 1984 until October 1995. The second possible set of circumstances is that the user was contentious until, say, 1984 and the position between 1984 and 1995 was open to argument as to whether the user was contentious. [137] In my judgment, the terms of the objection of October 1995 were not sufficient to render the user contentious after October 1995. The principal reason for this conclusion is that nothing changed on the ground in terms of the character or extent of the user. The October 1995 objection appears to have had no effect on the actual user. Further, the landowners did not take any physical steps to follow up their stance nor did they take any other steps to communicate the terms of the objection more widely. I will refer, in a moment, to the evidence as to the extent of publication of the objection. Further, the terms of the objection did not have any effect on the applicant for registration and those supporting her. Mrs Horne replied to the objection and joined issue with it. She did not withdraw the application for registration. The county council did not reject the application on the ground that the historic user had been contentious. When the county council rejected the application, Mrs Horne returned to the fray and renewed her campaign to have the land registered. Further, the terms of the objection were essentially backward-looking and were discussing the user in the period 1970 to 1990. Although it can be argued that the fact of objection in that period should be presumed to be continuing thereafter and the conclusion to the report refers to “the present day” and Mr Barry Curtis’s witness statement uses the present tense, the focus of the 1995 objection is not on the position current at that date. It can also be said (against the landowners’ contention) that because the objection said that user of the land did not mature into a legal right because of the locality point, this would make it less likely that the landowners were concerned to stop the continuation of the user. These various matters in combination seem to me to be sufficient to support the conclusion that the terms of the 1995 objection did not make the user contentious as from that date. [138] In support of its contrary argument, Betterment relies on the decision in Cheltenham Builders. In that case, the application for registration was made on 5 July 2000. The landowner’s solicitor objected to the application on 15 December 2000 and again by letter of 18 April 2001. The objections stated the landowner’s position that the user was not by the inhabitants of the locality and, further, that the land was used with the implied permission of the landowner. The applicant for registration was supplied with copies of this correspondence and, prior to 8 June 2001, the application for registration was withdrawn, although a further application for registration was made on 5 October 2001. Sullivan J discussed the effect of these matters in [70] and [71]. He attached importance to the fact that the application for registration was withdrawn. He stated that if the applicant had refuted the objection and persisted with the application, it might well have been reasonable to have expected the landowner to do more to resist the exercise of the claimed right, for example by erecting fencing or putting up notices. However, he concluded that the objection had “seen off” the applicant’s contention that the land was a village green so that the landowner did not need to do more. It had made it sufficiently clear that it was not acquiescing in the user. The same learned judge commented on this decision in his decision at first instance in Lewis: see [13] and [14]. He attached importance to the fact that the objection had “seen off” the contention that the land was a village green. [139] I am far from certain that I would have reached the same decision as Sullivan J in Cheltenham Builders. However, even if |page:145| I agreed with the way matters were described in that case, the present case is plainly distinguishable. There is no question here of the terms of the objection of October 1995 causing the applicant for registration or other users of the land to abandon their contention that the land could be registered as a village green. [140] There is a separate point with regard to the objection of October 1995. There is a question as to how many people were aware of the terms of the objection of 1995. There is evidence dating from 1999 as to the existence of the Society for the Protection of Markham and Little Francis. At that time, one of the aims of the society was to register the land as a new green for Weymouth. The society had a committee consisting of 11 people. Mrs Horne was then the secretary. The committee included five representatives for five separate areas in the vicinity of the land. It has not positively been shown that the same arrangements existed in October 1995. If I were to assume that the position was the same in 1995, I think I would be justified in assuming that Mrs Horne had told the members of her committee about the terms of the October 1995 objection. It is also possible, perhaps even probable, that the five area representatives communicated the terms of the objection somewhat more widely. In terms of findings of fact, the best that I am able to provide is as follows. As regards the class of persons using the land in and after October 1995, I would conclude that some of those people were aware that an application for registration had been made and that the landowners had objected. Conversely, some, possibly the majority, of the users of the land would not have been aware of that fact. With regard to the people who knew that an objection had been made, I conclude that some would have appreciated that one of the grounds of objection was that the user had previously been contentious, but others would not have known that detail. Works site [141] The conclusion that I have already expressed, that the user was not as of right in the period up to, say, 1984, in respect of the whole site, means that it is unnecessary for me to determine a subsidiary dispute as to the effect on user of certain construction works that were carried out on a part of the site in the period December 1979 to the spring of 1982. However, I heard a substantial body of evidence with regard to these works and, in the circumstances, I will record my findings of primary fact in respect of these works, although I will do so somewhat more concisely than I would have done if this topic had had an effect on the result of the case. [142] The construction works were carried out in the period December 1979 to the spring of 1982. There were some earlier exploratory works involving boreholes and a slit trench but it is not necessary to refer to those matters. The construction works were in connection with a drainage scheme and were of a substantial character. They involved the digging of two wide and deep shafts and the construction of a tunnel across the land. A substantial area of the site was taken up with the works. There was a car park constructed to the north of the site. The two shafts were of a considerable size. Spoil was removed and piled on the land. There were also items of plant and contractors’ vehicles parked on the land. [143] One issue that was very much in dispute at the trial was whether the works site was fenced off and, if so, the line of any such fencing. I received a considerable body of evidence on that topic. That was an issue that was addressed at the non-statutory public inquiry and some of the persons who prepared statements for the inquiry also gave evidence before me. Mr Nash and Mr Retter prepared statements for the inquiry that referred to the works site being fenced. Mr Males prepared a statement for the inquiry that suggested that there had not been fencing around the entire works site. Mr Males gave evidence at the inquiry and, again, he suggested that there had not been fencing around the whole of the works site. Mr Garman gave evidence at the inquiry and he referred to the works site being fenced. Mr Males prepared two witness statements for the trial before me and he gave oral evidence, was cross-examined and re-examined. Mr Garman prepared two witness statements for the trial before me; he gave oral evidence and was cross-examined and re-examined. Further, I heard evidence from Mrs Dunford, a long-time resident of Markham Avenue; she gave evidence for the second defendant. [144] From all the material produced before me, I find that the matters that are of the greatest assistance in making my findings of fact concern the footpath diversion order, a plan prepared by consulting engineers in April 1980 and the evidence of Mrs Dunford, including the photographs that she was able to produce. [145] Before the drainage works were carried out and, indeed, after the drainage works were completed, there was a public footpath running through what became the works site. This path began at the boundary of the land with Markham Avenue and ran in a generally south-westerly direction from that point. Since the works site would need to interfere with this footpath, an order was obtained for a temporary diversion of the footpath. On 29 November 1979, the local authority, acting on behalf of the county council, made an order restricting pedestrian traffic on a part of the footpath. The order referred to the part of the footpath continuing for 170m or thereabouts south-west of its junction with Markham Avenue. The order identified an alternative route for pedestrians that took a pedestrian westwards from Markham Avenue for 110m and then in a southerly direction for 130m, whereupon the pedestrian joined the original footpath. The order stated that it came into effect on 3 December 1979. On 3 December 1979, the local authority gave notice of the making of this order. The order did not incorporate a plan, but the parties have produced a plan that showed clearly where the alternative footpath route was to be. [146] In the course of the trial, there was produced a drawing prepared by a consulting engineer and dated April 1980. The drawing has reference number 60448/3 drawing number 2. This drawing shows an area described as “contractor’s compound and working areas”. The drawing shows the location of the two shafts and the tunnel between them and the continuation of the tunnel from the land, both north and south. The drawing also shows a temporary car park for use by residents. The drawing shows the original footpath and the site of the alternative temporary footpath. What is significant for present purposes is that the drawing refers to fencing of four different kinds shown under the words “fence details” on the plan. Since a thick bold line has been drawn around the contractor’s compound and working areas, it is not always easy to identify the nature of the fencing at every point. However, with the assistance of the oral evidence and the photographs dating from the relevant period, I am able to make the following findings as to the fencing that was erected for a period or periods. [147] Along the northern end of the site, starting at Markham Avenue in the east and continuing for some 110m, 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 engineer drew its 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 the use of, |page:146| certainly the non-contentious use of, that part of the registered land that 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 the time 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 that 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. [150] Mr Petchey submitted that the interference with the use of the registered land in the period from December 1979 to, say, April 1980 and the further interference caused by the other activities on the site was not such as to prevent the registered land as a whole being used for sports and pastimes for a period of 20 years, which included the period December 1979 to the spring of 1982. Conversely, Mr Laurence submitted that the way in which the landowners had asserted their right to control the works site in the period December 1979 to the spring of 1982 effectively showed that they were not acquiescing in any use of any part of the registered land. I do not accept either of these submissions. It seems to me that the erection of the fencing that I have described in the period December 1979 until at least April 1980 had the effect of interrupting the user of that part of the registered land that lay to the east of the western fence. If and in so far as the second defendant seeks to rely on a period of 20 years that is interrupted by the period December 1979 to April 1980, the result will be that the second defendant will be unable to rely on continuous user for such a 20-year period. That conclusion relates only to the land to the east of the western fence. That conclusion would not prevent the second defendant from relying on user (if all other requirements are met) in respect of the remainder of the application site. [151] In view of my conclusion as to the effect of the western fence, it is not necessary for me to demarcate in any more detail the parts of the works site that were separately interfered with in the other ways that I have described. There was considerable controversy at the trial as to whether local residents walked on the works site notwithstanding the presence of fencing and the presence of signs indicating the diverted public footpath. There was also considerable controversy as to alleged vandalism on the works site. It is not necessary for me to make any findings on those matters and I do not do so. Inhabitants of any locality [152] I have now dealt with two issues (the effect of the October 1995 objection and the works site) that it was not necessary for me to discuss for the purpose of disposing of this case. However, I did so in view of the fact that the primary facts in respect of those issues were in dispute and in case my findings on those primary facts might be of assistance, in particular in the event of an appeal. I now turn to a separate question, which is whether such user as has been shown was user by “the inhabitants of any locality” within the original definition of a TVG in section 22 of the 1965 Act. As explained by Lord Hoffmann in Sunningwell at p358B, it is not necessary that the user be only by the inhabitants of the locality; it is sufficient that the land is used predominantly by inhabitants of the locality. [153] The parties made detailed and careful submissions as to the meaning of the phrase “the locality” in the original definition in section 22 of the 1965 Act and, indeed, made similar submissions in respect of the amended definition of TVG in section 22(1A) of the 1965 Act, introduced by section 98 of the 2000 Act. The amended definition refers to “the inhabitants of any locality” and also to “the inhabitants… of any neighbourhood within a locality”. [154] I will refer briefly to the way in which the parties put their rival cases. Mr Petchey submitted that with regard to the common law in respect of customary greens, “locality” did not mean an administrative area known to the law. Further, the meaning of “locality” in the original definition in section 22 was not necessarily the meaning that that word had in the common law relating to customary greens. In the original definition, locality was to be equated with neighbourhood, which meant an area in the vicinity of a green from which the users actually came. In the alternative, if “locality” in the original definition did require there to be an administrative area known to the law, the second defendant could rely on the area of the borough of Weymouth and Portland, or the area of the borough of Weymouth and Portland minus Portland, or the area of the borough of Weymouth in the period 1933 to 1974, or the Westham westward alone. In the further alternative, the second defendant would seek to rely on a combination of electoral wards. [155] Mr Petchey also submitted, in respect of the justice of rectifying the register under section 14, that Betterment should not be allowed to rely on a definition of “locality” that differed from that put forward by counsel for the then landowners at the non-statutory public inquiry in 2000. In that regard, it was pointed out that counsel for the then landowners had submitted that “locality” meant “neighbourhood” and that the original definition and the amended definition meant much the same thing and, further, that the amended definition applied to this case. [156] Mr Petchey also opened up another front in respect of the justice of rectifying the register. He submitted that if the then landowners in 2000 had submitted to the non-statutory public inquiry that the original definition applied and that the applicant for registration did not satisfy the original definition, it would have been open to the applicant for registration, after the coming into force of the new definition on 30 January 2001, to make a fresh application for registration that relied on the new definition. Mr Petchey submitted that such an application would have succeeded and would have resulted in a registration of the same land as a TVG for the benefit of a neighbourhood within a locality in Weymouth. [157] Mr Laurence disputed each and every step in Mr Petchey’s argument. He submitted that each of the areas identified by Mr Petchey as a locality could not, either on the law or on the facts or both, amount to a locality. Further, he submitted that there was no relevant neighbourhood that had been identified by Mr Petchey. Further, Mr Laurence submitted that it was not useful to speculate as to what the applicant for registration might have done after 30 January 2001, by way of submitting a further application for registration, because no such application had been made. Mr Laurence explained that if such an application had been made, there were a number of points he wanted to make to the effect that such an application would have failed in any event. [158] Mr Petchey’s submissions were wide-ranging and detailed. So too were Mr Laurence’s responses to them. To do justice to all those submissions in a judgment would require a considerable amount of elaboration and discussion. None of that would affect the outcome of this case, at any rate at first instance. As regards other cases that may come before the courts raising similar points, any views I expressed would be obiter dicta only. The arguments raised by Mr Petchey were of a character such that it is probable that a definitive ruling on them could be given only by a higher court in any event. Further, it seems to me, that the dispute between the parties did not turn on matters of primary fact but on the correct legal definition of “any locality” and the application of that definition to the facts. Mr Petchey identified a large number of possible areas that could be regarded as a locality. In view of the number of the candidates in play, it would be burdensome, and not particularly useful, for me to discuss each of those areas in this case. Accordingly, I have concluded that the appropriate course for me to adopt is not to deal with the many issues arising as to “locality” and “neighbourhood”, save to say that I express my appreciation to counsel for the thoroughness and clarity of their arguments on these points. |page:147| Is it just to rectify the register? [159] Taking stock at this stage, I have now held that the preconditions to the court having power to order rectification of the register have been established. In particular, I have held that the amendment to the register that was made in 2001, to include the land as a TVG, should not have been made. The outcome of this application under section 14 therefore critically depends on whether the court deems it just to rectify the register. Mr Laurence said that rectification would be just and Mr Petchey said that rectification would be unjust. [160] I begin by considering the effect of registration of land as a TVG. After a considerable period of uncertainty on that point, the law has been settled by the decision of the House of Lords in Oxfordshire County Council. The law is now set out in [50], [51] and [56] of the speech of Lord Hoffmann in that case. Land that is registered as a TVG can be used generally for sports and pastimes. This does not mean that the owner is altogether excluded from the land. The owner still has the right to use it in any way that does not interfere with the recreational rights of the inhabitants. There has to be give and take on both sides. These propositions were in turn elaborated by the Supreme Court in Lewis. Further, land that is registered as a TVG under the 1965 Act is a TVG within section 12 of the Inclosure Act 1857 and within section 29 of the Commons Act 1876. [161] Accordingly, if the land in this case remains registered as a TVG, the landowner will be subject to burdens that ought not to have been imposed because the land should not have been registered in 2001. In the same way, the inhabitants of Wyke Regis will be entitled to enjoy rights over the land that should not have been conferred on them since the land should not have been registered. There is obviously a powerful case therefore for rectifying the register to remove the land from the register of TVG to restore the situation to that which should have existed in and after 2001, freeing the land from burdens and taking away from the inhabitants of Wyke Regis rights that they ought never to have had. [162] Mr Petchey contended that this prima facie conclusion is overidden by a number of considerations particular to this case. He argued that the requirement imposed by section 14, that the register may be rectified only where it is just to do so, shows that the mere fact that the register has been demonstrated to be wrong does not automatically produce the result that the register is to be rectified. People may have acted on the basis of the land being a TVG, such that it is no longer just to rectify the register removing the land. Specifically, he contended, Mr and Mrs Thompson bought a property in the vicinity of the land on the basis that the land was a TVG. It would now involve unfairness to them if the land ceased to be registered as such. There are likely to be other people in a similar position to Mr and Mrs Thompson. A balance has to be struck between the potential injustice to Betterment of not rectifying the register and the injustice to those who might be adversely affected if it is rectified. [163] Mr Petchey submitted that Betterment had brought forward no evidence of any injustice to itself if the register were not to be rectified. He said that Betterment had bought the land after the judicial review proceedings had been discontinued and at a time when the land was registered as a TVG. Further, the court must have regard to the lapse of time. It is now some 10 years since the end of the hearing of the non-statutory public inquiry. Coming to conclusions as to what happened in the period up to 1997 was difficult enough in 2000-01, but it becomes even more difficult when those conclusions have to be arrived at in 2010. The panel heard the evidence in 2000 and was well placed to form its own view as to the effect of that evidence. As Stanley Burnton J pointed out when refusing permission to move for judicial review, the real dispute was as to the weight to be attached to disputed evidence. Mr Petchey submitted that the evidence at the trial under section 14 was not very different to the evidence before the inquiry. This should make the court slow to reach a different conclusion from the original decision maker. If the court thought that the original decision maker arrived at a conclusion that was open to it, whether or not the court would itself reach that conclusion, the right answer, for the purposes of section 14 of the 1965 Act, is that it is not just to set aside the decision of the inquiry 10 years after the inquiry had taken place. [164] Mr Petchey had a further point to which I have alluded above. This point arose out of the fact that the original definition of a TVG was amended with effect from 30 January 2001. That was in the period during which the matter was being considered by the panel. Counsel for the then landowners submitted to the panel that the amended definition should be applied and, indeed, that there was not much difference between the original definition and the amended definition. Mr Petchey submitted that if the case were now to turn on the application of the original definition in place of the amended definition, it would not be just to allow rectification of the register on that account alone. He further submitted that if the then landowners had taken their stance on the original definition at the time of the inquiry, the applicant for registration could have made a further application after 30 January 2001, relying on the new definition, and that application would have succeeded. As I indicated earlier, it is not necessary for me to deal with this submission because, on the facts, I have held that the amendment to the register in 2001 should not have been made on other grounds, namely that the applicant for registration had failed to prove user as of right for a relevant period of 20 years. I have not gone into the wholly separate question of the effect of applying the original definition or the amended definition. [165] I will now deal with Mr Petchey’s various points, taking them in turn. [166] Mr Petchey submitted that Betterment will suffer no injustice if rectification is refused. It seems to me that in order to discuss this point I need to consider the position of the landowners from time to time and, in particular, Betterment, rather than considering the position of Betterment alone. The position of the landowners from time to time is as follows. In 1995, the then landowners, the Curtis family, opposed the registration of the land as a village green. In 1996, the county council declined to register the land as a village green. In 2000 and 2001, the then landowners, the Curtis family, fought the inquiry on the issue of whether the land should be registered. When the county council decided that the land should be registered, the then landowners brought proceedings for judicial review of that decision. There was an issue as to whether an application for judicial review was the correct procedure in view of the existence of section 14 of the 1965 Act. In due course, the then landowners discontinued the proceedings for judicial review, but expressly reserved their right to apply for rectification of the register under section 14. Later still, the Curtis family negotiated over a long period with Betterment for the sale of the land to Betterment. Pausing there, in my view, Betterment has a strong argument that it simply steps into the shoes of the previous landowners and the terms of the transaction between the previous landowners and Betterment do not take away anything that could have been said by the previous landowners on the issue of the justice of rectification. [167] As regards the position of Betterment considered separately, I was presented with a substantial body of evidence from representatives of Betterment and from expert witnesses. Mr Mervyn Stewkesbury, of Betterment, gave evidence as to the negotiations for the purchase of the land by Betterment. Betterment bought some 94 acres of land from the Curtis family. This included the 46 acres or so registered as a TVG. Betterment knew of the registration. However, it also knew that the Curtis family had challenged the registration. Mr Stewkesbury proceeded on the basis, at the time of the purchase, that the registered land had only a nominal market value. However, because the registration was under challenge, he considered that the land had hope value, provided that the registration was to be cancelled and that planning permission could be obtained. He thought it was unlikely that the land had any agricultural value and he was aware that Betterment would be obliged to incur substantial expense and time in maintaining and insuring the land and securing adequate fencing around the perimeter. He said that if Betterment succeeded in the present application, it intended to seek planning permission for at least some of the land currently registered as a TVG. The price paid by Betterment for the overall holding of 94 acres was a matter of commercial judgment and negotiation. It was not a |page:148| matter of expert valuation and there was no breakdown of the price as between the land registered as a green and the other land. He considered that the negotiating position of the previous landowner, on the occasion of the sale to Betterment, was strengthened by the fact that grounds existed to challenge the registration. [168] Mr John Loosemore, of Betterment, gave evidence as to the substantial expenditure incurred by Betterment on the 94 acres of land since Betterment acquired that land. [169] I received a witness statement from a Mr Tony Gregson, a valuer who had assisted Mr Stewkesbury in the negotiations to purchase the land. Although Mr Gregson was involved, he did not provide assistance to Betterment in respect of the precise value of the land since the price paid was a matter of commercial judgment and negotiation. He said that the price paid by Betterment reflected some hope value for the part of the 94 acres registered as a green. [170] Betterment called a town planner, Mr Malcolm Brown, to give evidence on planning matters with regard to the 94 acres now owned by Betterment. In short, Mr Brown considered that Betterment would be better off in planning terms if the registered land was not so registered. This was so even if, which is far from clear, Betterment was able to allocate a part of the registered land to a use as open space, which might be part of the planning gain required by the local planning authority in return for granting planning permission for another part of the 94 acres owned by Betterment. [171] Betterment also called Mr Nigel Jones FRICS, a valuer, to comment on the value of the land at the date of purchase and at the present time on the basis that the land was registered as a green and on the basis that it was not registered as a green. In summary, if the land was not so registered, it would be worth significantly more than if the land were so registered. As at the date of purchase, when the land was subject to registration as a green but there was a prospect of that registration being removed by rectification, the land had a hope value, where the hope was that rectification would be ordered and the hope value was in between the lower value, where the land was registered as a green, and the higher value, where the land was not registered as a green. [172] Having reviewed the evidence as to the position of the landowners, and in particular Betterment, my conclusions are as follows. The previous landowners could show that they would have been at a substantial disadvantage by reason of the land being registered as a green as compared to the situation they would have been in if the land had not been so registered. At the present time, Betterment can also show that it will be at a substantial disadvantage by reason of the registration as compared with the case where the land was not registered as a green. That difference is represented by a substantial amount in money terms. When Betterment bought the land, it paid more than the land was worth if the land were to remain registered as a green; it paid less than the value of the land if the registration were to be rectified. That is precisely what one would expect with a purchase of land where its value is subject to uncertainty as to a future event. Mr Petchey argued that Betterment had taken a gamble. If the gamble were to pay off and the registration were to be rectified, then, he said, Betterment would have a windfall, namely the enhancement in value attributable to the removal of the registration. If, on the other hand, the gamble did not pay off and the registration continued, then, he said, Betterment had taken that risk with its eyes open. I do not regard that submission, describing Betterment as having taken a gamble, as any reliable guide to where the justice of the case lies as regards rectification. I regard it as more accurate to come to the conclusion that any landowner, including Betterment, will be significantly worse off if the registration continues as compared with the alternative of the registration being rectified. I would therefore reach the conclusion that the continuation of a registration that ought not to have been made in the first instance will cause substantial harm to any landowner, including, in this case, Betterment. [173] With regard to the overall justice of declining to order rectification of the register, the second defendant relies on the circumstances in which Mr and Mrs Thompson bought their property, known as Markham House, 146 Wyke Road, Weymouth, for which contracts were exchanged on 20 December 2001. [174] Mrs Thompson gave evidence at the trial and was cross-examined and re-examined. She explained that, in around 2001, she and her husband decided to move house from Cobham, Surrey. They looked at properties in Weymouth and also in Norfolk. In Weymouth, they found Markham House. It can be seen from the plan that Markham House in Wyke Road lies to the south of the 94 acres now owned by Betterment and in 2001 owned by the Curtis family. Immediately north of Markham House is the boundary between the registered land to the east and the remainder of the 94 acres to the west. Mrs Thompson explained that she and her husband found Markham House to be most attractive. They were attracted to the house itself but also to its setting, being surrounded by open land. Immediately to the north of the property, that is, at the rear of the property, was a private paddock and north of the paddock was the land owned by the Curtis family. She said that the discovery of Markham House caused her and her husband to move to Weymouth and not to Norfolk. [175] The vendor of Markham House, Mr Thomas, told Mr and Mrs Thompson about the land that was registered as a green. Mr Thomas said that the registered land could never be built on and that it was a very pleasant walk back from Weymouth through the open countryside. This conversation seems likely to have been shortly before 4 December 2001 because on that date Mrs Thompson carried out some research on the internet. She found a link to the website of the Open Spaces Society and that website had an entry relating to Markham and Little Francis. This described the decision of the county council to register the land as a TVG. The entry contained this sentence: The land is now protected from development and the recreational rights of the community to enjoy traditional activities, of dog walking and children playing have been preserved for future generations. [176] In her witness statement, Mrs Thompson stated that her internet search also gave information about the local plan review process being carried on by the local planning authority. She became aware that owners of land surrounding Markham House were objecting to designation of that land in the local plan, on the basis that the owners wanted it to be designated for building. In her witness statement, Mrs Thompson suggested that the land subject to this objection included the registered land. Mrs Thompson said that she was concerned about the planning point and she contacted Wyke Regis Protection Society. It told her that it considered it unlikely that the landowners would succeed in their objection to the planning policy. Mrs Thompson said that she continued to monitor progress of the local plan review and, in time, the landowner’s objection was rejected. Thus, she felt she had “the double reassurance” that came from, first, the designation of the land as a TVG and, second, the rejection of the landowners’ objection to the planning policy. She stated that if there had been any prospect of development “on the surrounding land” she and her husband would not have bought Markham House and would in all probability have moved to Norfolk. She also added that if development were to take place in the future she and her husband would consider moving. Mrs Thompson did not say in her witness statement that she had had any relevant advice on the TVG point, or the planning point, from her solicitor at the time of her purchase. [177] In the course of Mrs Thompson’s cross-examination, she said that she would have asked her solicitor for advice and he would have given her advice. Later in her cross-examination, Mrs Thompson appeared to remember more distinctly that her solicitor had given her reassuring advice including advice on the TVG. In the course of her evidence, there was produced a search carried out by her solicitor of the registers of common land and TVGs. The search was submitted on the 5 December 2001. The search related to the land being acquired by Mr and Mrs Thompson, namely Markham House and the paddock, and did not relate to the land owned by the Curtis family. It appears from the solicitor’s bill to Mrs Thompson that this was the only search done under the 1965 Act. This means that the solicitor did not search in respect of the land that was registered as a TVG. |page:149| [178] It is relevant, when assessing Mr Thompson’s evidence, to consider some information about the planning position in 2001. This information was collected and put before the court after Mrs Thompson had completed her evidence. In the draft local plan, no part of the 94 acres owned by the Curtis family was designated for development. The Curtis family objected to a number of the planning policies in the draft plan. It engaged Mr Brown, the town planner, who gave evidence at the trial, to assist it with its objections. Although there is a little lack of clarity as to precisely what land Mr Brown suggested should be bought forward for possible development, sufficient clarity is provided by some of the documents prepared by the local planning authority. The local authority identified the land, the subject of the Curtis family’s objection, by reference number HW25, and a plan that showed this land was confined to a part of the land to the west of the registered land and so that it did not include any part of the registered land. Mrs Thompson’s evidence was that she sought reassurance about the Curtis family’s objections to the planning policy. I accept her evidence that she sought this reassurance from the local amenity society. If she had been correctly informed on the situation, she ought to have been informed that the land that was subject to the planning objection was land to the west of the registered land. [179] Mrs Thompson said that she was reassured by what she was told, on enquiry, as to the prospects of success for the objections to the planning policy. In fact, the planning material put before me does not appear to be as reassuring as Mrs Thompson thought it was. In particular, the environment committee of the local authority met on 11 December 2001 to consider, among other things, representations from Mr Brown on behalf of the Curtis family and also representations from Mrs Horne, who, it will be remembered, had been the applicant for registration of the registered land. At the end of the committee meeting, the committee resolved that the officers of the authority should be authorised to investigate the possibility of limited development at the north end of site HW25. Thus, the possibility of a development of some part of the Curtis land did not completely go away on 11 December 2001, although any possible development was to be on the part of the Curtis land furthest from Markham House. [180] Doing the best I can in respect of Mrs Thompson’s evidence, I make the following findings. The vendor, Mr Thomas, told Mr and Mrs Thompson that the land to the north and east of Markham House had been registered as a village green. Mrs Thompson confirmed that by her internet search. The Open Spaces Society website was very reassuring that the land that was registered was protected from development. Mrs Thompson was also aware of the local plan process in respect of some land to the north of Markham House. It is not possible to say whether Mrs Thompson appreciated that the land the subject of Mr Curtis’s objection was land to the west of the registered land or whether she thought that the land that was the subject of the objection included the registered land. In any event, she appears to have been reassured about the prospect of development by what she was told by the local amenity society, although the reassurance may have been more than was truly appropriate. It is difficult to judge whether Mrs Thompson would have been more concerned about development on the registered land or development on the land to the west of the registered land. It is probable that she was concerned about development on both parcels of land. Since the prospect of development on the land to the west of the registered land turned on planning policy that might depend on the changing attitude of the local planning authority over the years to come, it is difficult to reach the conclusion that Mrs Thompson thought that development of that land would never happen. The only reasonable thing for her to have thought, based on the reassurance she apparently received, was that development was unlikely. It seems to me therefore that Mr and Mrs Thompson bought Markham House on the basis that development of the land to the north of Markham House was unlikely. It is entirely possible that they did not distinguish between the registered land and the land to the west of it. If Mrs Thompson had given evidence that she distinguished between the risk of development on the registered land and the other land and that she thought the risk of development on the registered land was much lower than on the other land, I would have considered that to be a reasonable point of view. However, Mrs Thompson did not give that evidence. Instead, in the course of her evidence, she tended to treat all the land to the north in the same way. Based on that, I find that it is more probable than not that Mrs Thompson and her husband did not in the end distinguish between the two parts of the land to the north, so far as the risk of future development was concerned. I also find, on the balance of probabilities, that Mrs Thompson did not ask her solicitor to carry out any search in respect of the registered village green and that her solicitor did not give her any specific advice about the registered land, and anything said by her solicitor was not any part of the reassurance felt by Mrs Thompson to which I have referred. [181] If Mrs Thompson had investigated the situation with regard to the registered land in December 2001 and had discovered the true position, which was that the landowners had reserved the right to seek rectification of the register under section 14 of the 1965 Act, it is not possible to be certain what Mr and Mrs Thompson would have done. That revelation might not have affected their sense of reassurance because, on my earlier findings, they did not distinguish between the registered land and the land to the west of it. In the case of both parcels of land, they relied on the assurance of the local amenity society that development was unlikely. If they had been aware of the possibility of an application for rectification of the register, they would not have known whether that application stood much chance of success. If such an application were to be made and were to succeed, the land that at one time had been registered as a green would have the same prospects or lack of them in planning terms as the land to the west, where they thought that there was very little prospect of that land coming forward for development. [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 they have learnt 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 landowner and Mr and Mrs Thompson, to record that the landowner was not in any way responsible for Mr and Mrs Thompson’s state of mind, whatever it was, when they acquired Markham House. The landowner did not make any representation or promise as to the future use of the land and, indeed, nobody asked the landowner for any information on that score. [185] Mr Petchey submitted that it is potentially unjust to people in the local area who value the use of the registered green to have the registration cancelled as a result of these court proceedings when the essential facts were gone into by the panel in 2000-01 and where, he said, the different decision of this court turns on detailed findings of fact and the weight to be given to disputed evidence. He also submitted that it is possible that the court is in a less good position today to assess the |page:150| evidence as compared with the panel that was considering the evidence nearer to the time of the relevant events. [186] The essential difference between my decision and that of the panel relates to the findings I have made as to the user being contentious for a period of time. In reaching my decision, I have relied on essentially the same material as was before the panel. The panel was fairly brief in giving its reasons for rejecting the landowners’ contention that the user was contentious. At the hearing before me, the submissions that were made as to the issue of contentious user were more elaborate than were the submissions before the panel. Before me, the submissions on the facts were very thorough on both sides. I have tried to set out in some detail my essential findings of fact as to contentious user and my understanding of the legal principles involved. I have reached clear conclusions on those points and my conclusions turn out to be favourable to the landowner. [187] As explained by Lightman J, and by the Court of Appeal, when determining the preliminary issues raised in this litigation an application under section 14 is not a review by way of an appeal against the panel’s decision. Section 14 contemplates that there can be a full review of the legal principles and of the underlying evidence. That is the process that has been undertaken in this case. In these circumstances, I hold that section 14 requires me to give effect to my findings as to contentious user unless there is some other extraneous matter that makes it unjust for me to do so. Mr Petchey suggested that the passage of 10 years since the hearing before the panel might have made it more difficult for this court to come to its conclusions, as compared with the position in 2000-01. Since I have relied on essentially the same material as that before the panel, I do not think there is anything in that point in this case. [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 that, 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 that 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 that 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 that 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 it may have had to members of the public being on its 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. [190] I fully understand that many residents of the local area place a very high value on their ability to use the land for walking and other recreations. Further, many of the residents of the local area regard the registration as a worthwhile curb on the development of the registered land and of the adjoining land to the west. I fully understand that those persons will be very disappointed in those respects if the land ceases to be registered as a TVG. [191] The question of whether it is just to order rectification of the register involves a balancing exercise taking into account all proper points that can be made on behalf of the landowners and all proper points that can be made on behalf of the inhabitants of Wyke Regis. Having considered in detail all the matters that Mr Petchey asked me to consider, I come back to what I earlier described as the prima facie position. If rectification is ordered, the result will be that the landowners will be free from burdens that should not have been placed on them and the inhabitants of Wyke Regis will be denied, in the future, rights that they have enjoyed in the past but that they should never have had. My decision is that this prima facie position is indeed the just position. Result [192] I conclude that it is just to order rectification of the register. With regard to the land owned by Betterment, it is entitled to an order that the registration of that land as a TVG be cancelled. That order will have immediate effect and will not be affected by the point I am about to make in respect of the cross-hatched land. [193] As I pointed out earlier, the land that is registered as a TVG includes the cross-hatched land. That land is not owned by Betterment, and it may be of no concern to Betterment whether the cross-hatched land remains registered as a TVG. However, the cross-hatched land should never have been registered as a TVG. The application in 1997 that led to the registration in 2001 was amended by the applicant so as to remove the cross-hatched land. The county council should therefore not have registered the cross-hatched land as a TVG. In these circumstances, it seems to me to be desirable that the entirety of the registration of the land (Betterment’s land and the cross-hatched land) as a TVG be cancelled. The owner of the cross-hatched land is not a party to these proceedings. However, I do not see how it could be said to be in the interests of that owner for its land to remain registered as a TVG. To accommodate the point that the owner of the cross-hatched land is not a party to these proceedings, I will order that the register be rectified in respect of the cross-hatched land but that order is not to have effect in respect of that land for 28 days following service of the order on Dorset County Council and on the owner of the cross-hatched land. That 28-day period will give the owner of the cross-hatched land the opportunity to state whether it objects to the cancellation of the registration. If that owner does not object, my order will take effect with regard to the cross-hatched land. If it does so object, the order cancelling the registration in respect of that land is not to take effect until that matter is resolved. That matter can be resolved by agreement between Dorset County Council and the owner of the cross-hatched land. In the absence of agreement, it may become necessary for one or other of those parties to apply to the court in the present proceedings for the court to determine what is to happen. I regard the prospect of such an application becoming necessary as remote. [194] In these circumstances, I will direct that the entirety of the register entry be cancelled (but subject to the point I have made about the possible separate treatment of the cross-hatched land). Claim allowed.