Leeds Group plc v Leeds City Council

Town and village greens – Class C green – Neighbourhood within a locality – Respondents registering land owned by appellant on basis of use by significant number of inhabitants of neighbourhood within a locality – Whether, on proper construction of section 98 of Countryside and Rights of Way Act 2000 Act, 20 year user requirement capable of commencing before coming into force of that provision — Appeal dismissedIn 2004, the respondent council received an application, under section 13(b) of the Commons Registration Act 1965, to register land as a Class C town or village green. The land included an area of which the appellant was the registered freeholder. The application claimed that the land had been used as of right by a significant number of inhabitants of a “neighbourhood within a locality” for lawful sports and pastimes for 20 years, so as to meet the requirement for registration within the second limb of section 22(1A) of the 1965 Act, as amended by the Countryside and Rights of Way Act 2000. In the application, the relevant locality was given as “Yeadon” and the applicant described himself as acting on behalf of residents of areas known as “The Haws” and “Banksfield”, which lay on either side of the application land. Following a non-statutory public inquiry before an inspector, the statutory requirements were found to be met and the land was registered as a green.The appellant challenged the registration under section 14 of the 1965 Act. It submitted that, inter alia, only use of the land by inhabitants of a single neighbourhood within a locality would suffice so that, in this case, the statutory requirements had not been met. The judge dismissed the claim: see [2010] EWHC 810 (Ch); Self=”rc_ucacins784″[2010] PLSCS 122Self=”rc_ucacins794″.The appellant’s appeal against that decision was dismissed: [2010] EWCA Civ 1438; [2011] 02 EG 74 (CS). However, the Court of Appeal granted the appellant permission to raise a new ground of appeal: that sections 98 and 103(2) of the 2000 Act should be construed so as to postpone the operation of the amended definition of town or village green (TVG) to 30 November 2020 (20 years after the coming into force of section 98) in any case where an applicant needed to rely, for the purposes of his application to register land as a TVG, on user that would previously have been incapable of supporting such an application.Held: The appeal was dismissed. The practical consequence of the appellant’s construction of section 22(1A) would be that no application to register land as a TVG based on user by a significant number of the inhabitants of a neighbourhood could be made until a period of 20 years had elapsed after the passing of the 2000 Act. It was inconceivable that parliament intended to bring about such a result when its intention in enacting section 98 had been to remove the evidential difficulty posed by the need for users to be predominantly from a locality. It was in order to plug that loophole, which allowed greens to be destroyed, that the 2000 Act was passed: Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] EGLR 95 applied.In enacting section 98, parliament was striking a balance between two competing interests: users who wished to apply for the registration of land as a TVG, and landowners whose land might be the subject of such an application. The new section 22(1A) introduced a number of new features into section 22(1). In addition to introducing the “neighbourhood” limb, the recreational use had to be (a) by a “significant number” of the inhabitants of a locality or neighbourhood; and (b) continue until the date of the application for registration. The appellant’s construction of section 22(1A) brought those two new requirements, which potentially disadvantaged applicants for registration, into effect on 30 January 2001, while postponing for 20 years the operation of the new feature intended to assist applicants for registration. The combined effect of sections 98 and 103 was unambiguous. Since the user must have continued up to the date of the application, the new definition required one to ask whether, as at that date, there had been 20 years continuing user. Section 103 distinguished between those provisions of the 2000 Act that would come into force two months after the passing of the Act (section 103(2)), and those that would come into force by an order made by statutory instrument (section 103(3)). If parliament had wished to delay the coming into force of the new neighbourhood limb, and/or to make any transitional provisions consequent on its coming into force, section 98 would have been omitted from subsection 103(2) and left as one of the remaining provisions to be dealt with under subsection 103(3).Accordingly, the new policy in section 22(1A) applied in its entirety to all applications made on or after 30 January 2001. The effect of the new policy as a whole was prospective in its effect. If and insofar as there was an element of retrospectivity, there was no real likelihood of unfairness to landowners since any possibility of unfairness was purely hypothetical, and there was no unfairness on the facts of the present case.George Laurence QC and Jane Evans-Gordon (instructed by DLA Piper UK LLP) appeared for the appellant; Clare Parry (instructed by the legal department of Leeds City Council) appeared for the respondent; David Forsdick (instructed by the Treasury Solicitor) appeared for the first interested party; and Robert Williams (instructed by Zermansky and Partners) appeared for the second interested party.Eileen O’Grady, barrister