Paddico (267) Ltd v Kirklees Metropolitan Council and others

Town and village greens – Locality – Section 22(1) of Commons Registration Act 1965 – Defendant council registering land as green – Claimant landowner applying to remove land from register – Whether requirements for registration met where land used by inhabitants of two neighbourhoods – Application granted In 2004, the claimant development company acquired 6.5 acres of grassland in an otherwise densely built–up area as a speculative investment. In 1997, the land had been registered as a town or village green (TVG) under the Commons Registration Act 1965 and it was used by the inhabitants of two local neighbourhoods. The claimant applied, under section 14 of the 1965 Act, for an order that the land be removed from the register maintained by the first defendant council, thereby freeing it up for development purposes. The second and third defendants were representatives of an action group that resisted the application. The claimant argued that the first defendants should not have registered the land as a TVG because it could not be shown to be land on which the “inhabitants of any locality” had indulged in lawful sports and pastimes as of right for not less than 20 years, within Class C of the definition of a TVG in section 22(1) of the 1965 Act, the term “locality” having been given a specialised meaning by the authorities over many years.The second and third defendants argued that: (i) the user had been demonstrated in 1997 to have been by the inhabitants of a qualifying “locality”; and (ii) if that were not the case and the first defendants had made a mistake in 1997, the more relaxed test introduced by section 98 of the Countryside and Rights of Way Act 2000 could be met. They relied on the difference between section 22(1) of the 1965 Act as originally enacted, which required the recreational usage of the land to be predominantly by the inhabitants of the relevant neighbourhood, and the test under section 22(1A) of the amended legislation, applicable from 30 January 2001, whereby the user could be by “a significant number of the inhabitants of any locality or of any neighbourhood within a locality”. Held: The application was allowed. A locality was to be understood in all the legislation (before and after the amendment to section 22(1)) as meaning an administrative district or an area within legally significant boundaries. To qualify under the original section 22(1), or under the first limb of section 22(1A), the land to be registered as a TVG had to be used by the inhabitants of a single “locality”. In section 22(1A), the term “neighbourhood” was a cohesive area capable of meaningful description and the term “locality” within the expression “neighbourhood within any locality” could mean a locality or localities. Moreover, the phrase “neighbourhood within any locality” could mean either a neighbourhood or neighbourhoods but they did not need to be located within a single locality. In the original Class C definition in section 22(1) (but not in the new definition in section 22(1A) in which the predominance test had been replaced by the requirement for usage by “a significant number” of inhabitants), not all the users of the TVG needed to be inhabitants of the locality in question but the land had to be used “predominantly” by such inhabitants: New Windsor Corporation v Mellor [1975] Ch 380 applied; Betterment Properties (Weymouth) Ltd v Dorset County Council [2010] EWHC 3045 (Ch) followed; Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931, R v Suffolk County Council, ex parte Steed and Steed (1995) 70 P&CR 487 and Leeds Group plc v Leeds City Council [2010] EWCA Civ 1438, [2010] PLSCS 325; [2011] 2 EG 74 (CS) considered. On the material available to them in 1997, the first defendants had not been justified in making the registration since “any locality” was singular in the Class C definition in section 22(1) whereas the user established was by inhabitants of two suburban areas. Further, even if those two areas were properly to be regarded as localities, the fact that it had been demonstrated that there was a reasonably even spread of users over the two localities meant that the TVG ought not to have been registered: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 and Oxfordshire County Council v Oxfordshire City Council [2006] UKHL 25, [2006] 2 EGLR 95 applied.On the evidence, the registration could not have been supported on any other ground when the 1997 application was made. The 1965 Act was to be construed inflexibly and because of the technical meaning of locality in the section 22(1) definition, the defendants could not have satisfied the requirements for registration of the land as a TVG.Balancing all the relevant factors together, justice demanded that rectification be ordered. The land had been registered as a TVG when it should not have been and it was just to order rectification. That conclusion was supported by the fact that, if the register were not rectified, the landowner would be deprived without compensation of its lawful right to develop the land.George Laurence QC and Ross Crail (instructed by DLA Piper UK LLP) appeared for the claimant; the first defendant did not appear and was not represented; the second and third defendants appeared in person.Eileen O’Grady, barrister