Leeds Group plc v Leeds City Council

Town and village greens – Class C green – Neighbourhood within a locality – Section 22(1A) of Commons Registration Act 1965 – Respondents registering land owned by appellant on basis of use by significant number of inhabitants of neighbourhood within a locality – Whether requirements for registration met where land used by inhabitants of two neighbourhoods – Whether user sufficient to show assertion of right where no basis in law for right to arise at time user began – Appeal dismissedIn 2004, the respondent council received an application, under section 13(b) of the Commons Registration Act 1965, to register land on the outskirts of Leeds 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 as a Class C green 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 accordingly registered as a green.The appellant brought proceedings under section 14 of the 1965 Act to challenge the registration. It submitted that, inter alia, only use of the land by inhabitants of a single neighbourhood within a locality would suffice so that, if the land was used by inhabitants of both The Haws and Banksfield as two separate neighbourhoods, the statutory requirements were not met. The judge rejected that submission and dismissed the claim: see [2010] EWHC 810 (Ch); [2010] PLSCS 122.The appellant appealed. It raised a further point that the quality of user by the inhabitants had been insufficient to give rise to a right of recreation since its predecessor in title could not, prior to 2001 when the second limb of section 22(1A) came into force, have reasonably been expected to resist the assertion of any right by people living in the immediate vicinity of its part of the land given that there was not at that time any basis in law for user by such a limited class of people to give rise to a right of registration as a green.Held: The appeal was dismissed.(1) The starting point for construing section 22(1A) of the 1965 Act was section 6(c) of the Interpretation Act 1978, by which the singular was to include the plural unless the contrary intention appeared. With the concept of “any neighbourhood” in section 22(1A), no such contrary intention appeared, either expressly or by inference. The language of section 22(1A) did not suggest that the words “any neighbourhood” had to mean only one neighbourhood and there was no logical reason why those words should not include two or more neighbourhoods. Although parliament had substantially retained the pre-existing common law position relating to the word “locality” – under which use as of right by the inhabitants of a locality would give rise to a right of recreation but the claim would fail if those who used the land came from more than one locality – there was no reason to infer that all aspects of the common law locality rule were intended to be grafted onto the new concept of “neighbourhood within a locality”. Assuming that parliament had intended to remove unnecessary technical obstacles to the registration of land that was providing a valuable recreational facility for local inhabitants, it would be contrary to the legislative intention to confine “any neighbourhood within a locality” to only one neighbourhood. It would distort the legislative intention, and would produce absurdity, to hold that a bar to registration arose if the evidence demonstrated that the recreational function was valuable for two or more neighbourhoods rather than merely one: Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95 considered. That interpretation did not open the door to registration too wide owing to the requirement that only user by a “significant number” of inhabitants of the neighbourhoods in question would suffice.(2) Although a right could arise only where the conduct relied on was sufficient to show the landowner that a right was being asserted against it, any reasonable owner would be put on notice that a public right to use its land for recreational purposes was being asserted provided that the user of the land for that purpose was more than trivial or sporadic: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85, R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11; [2010] 1 EGLR 153 and R (on the application of Alfred McAlpine Homes Ltd) v Staffordshire County Council [2002] EWHC 76 (Admin); [2002] 2 PLR 1 considered. The landowner would not know, without carrying out a detailed investigation, whether those using its land for recreational purposes came from a particular locality or a neighbourhood or neighbourhoods. None the less, the fact that their recreational user of the land was more than trivial or sporadic would suffice to put the landowner on notice that a right of way might be asserted. It had then to choose between warning them off or finding that the apparently asserted right had been established. The inspector had found that ample and open recreational use had been made of the land for the necessary 20-year period by a significant number of local inhabitants and such use had clearly been of such a level and been carried out in such a manner as would reasonably be regarded as the assertion of a public right. The registration of the land as a green should be upheld.George Laurence QC and Jane Evans–Gordon (instructed by DLA Piper UK LLP, of Leeds) appeared for the appellant; Morag Ellis QC (instructed by the legal department of Leeds City Council) appeared for the respondents.Sally Dobson, barrister