Has the Supreme Court stalled the 'village green industry'?

The justices' latest ruling appears to side firmly with developers, but the outcome in practice may not be so clear cut. Jean-Yves Gilg reports

Lapse of time was not a sufficient consideration on its own when assessing whether land registered as a village green should be deregistered, the Supreme Court ruled last week in two long-running disputes pitting locals against developers.

In a unanimous decision given by Lady Hale, five justices said a delay in applying for deregistration was not immaterial but there should be evidence of “detriment or prejudice” for it to be taken into account.

Rejecting suggestions by the Court of Appeal earlier that detriment could be inferred after ten years, Lady Hale said “the correct view… is that there must be some solid material from which such inferences can be drawn”. (Adamson v Paddico, Taylor [oao Society for the Protection of Markham and Little Francis v Betterment Properties [2014] UKSC 7)

In the present joint appeals, which involved delays of nine and 12 years respectively, she concluded there was no evidence of such detriment to the local villagers.

For many, the ruling will be seen as a warning shot to what they regard as ‘the village green industry’ – a reference to the numerous local groups campaigning against development plans.

But while the case does not endorse an automatic inference of prejudice as a mere result of delay on the part of applicants for rectification, it also leaves the door open for local groups to contest rectification. In the words of Lady Hale, “the longer the delay, the easier it will be to draw such inferences”.

‘Just’ rectification

Under the Commons Registration Act 1965 land can be registered as a ‘town or village green’ if it has been used “as of right” by members of the local community for lawful sports and pastimes for 20 years or more.

The Act provides for circumstances where the register can be rectified where it is “just” to do so but it does not lay down a procedure or time limits for rectification applications.

In the first case, Taylor v Betterment Properties, a local society applied for land at Markham and Little Francis, near Weymouth, to be registered as a village green in 1994. The council granted registration in June 2001 after a public inquiry and lengthy consultation with villagers.

Developer Betterment Properties acquired the land from the previous owners in 2005 and shortly thereafter applied for deregistration, claiming that not all the land had been used for 20 years or more, and that use had not been ‘as of right’. The Court of Appeal found in its favour and the Supreme Court confirmed its findings.

In the second case, Adamson v Paddico, the Clayton Fields Action Group secured registration for 6.5 acres of grassland in north-west Huddersfield in 1997, even though planning permission for a housing development had been granted in the 1960s and confirmed in the local development plan in 1993.

Paddico bought the land from Geo H Haigh & Co, interveners in the case, and started rectification proceedings in 2010.

At first instance, Vos J allowed rectification. He said the 14-year delay in the application weighed against rectification but was not conclusive. The Court of Appeal reversed his findings, ruling in favour of the action group, saying that the delay was “so excessive as to make it not just to rectify”. Lady Hale restored Vos J’s decision.

Legal oddity

The lack of procedure or limitation in the Act stands as an oddity when compared with the general statutory six-month time limit – even then, the exceptions in the Limitation Act regularly give rise to litigation.

“There are numerous examples where parties’ rights can be compromised if they fail to act timeously,” says SA Law associate solicitor Chris Alexander. “The need for legal certainty and the avoidance of endless litigation is often balanced against the prejudice to the parties from the circumstances of their cases.”

In the present cases, Alexander says, the Supreme Court took “a common sense approach looking at prejudice as opposed to timing”, but “it does not mean that delay is irrelevant in determining applications for rectification of the commons register, only that it is not the overriding factor.”

Nevertheless, it is difficult not to read this ruling as positive for developers.

“This decision is good news for landowners and developers with adverse registrations on their land, which to date they have not sought to challenge,” says Philippa Thomas, solicitor at Mayer Brown. “It confirms that delay alone is not a good reason to allow an incorrect registration to stand but rather there should be ‘solid’ evidence of detriment or prejudice for it to be taken into account”.

But Thomas warns that developers should not assume that courts will always be sympathetic. “Lapse of time is not immaterial but will continue to be a potential factor in the court’s decision on whether it is just to rectify the register or not, therefore landowners and developers should still be cautious in their approach and avoid delaying a rectification claim to minimise the risk of significant prejudice or detriment being caused.”

Four prejudices

How, then, are lawyers to determine whether delay has been long enough to cause detriment or prejudice? Lady Hale, having rejected the Court of Appeal’s automatic inference approach, set out basic guidance focusing on four main categories of prejudice (see box below).

“Lady Hale setting out the types of prejudices has provided more guidance than was perhaps expected,” says Pemberton Greenish solicitor Amy Chance, “although it’s still not immediately clear who is likely to be affected in any given case and the extent of the prejudice.”

Establishing prejudice, Chance suggests, will be a high threshold. “So from a practical point of view, landowners or developers sitting on ‘village green’ land and considering an application for rectification should do it as soon as possible, because the longer they leave it, the more likely it is that objectors will be able to produce evidence of local use.”

She also says that the case may have opened a trap for conveyancers, as applications for rectification under section 14 of the Act will not come up in local searches. But not everybody will necessarily agree that the Supreme Court has reached the right decision. Could it be that developers’ interests were given too much relevance? “One wonders whether the same decision would have been reached if there had been no potential development opportunity,” says Sue Hearn, non-practising property solicitor and course director at CLT.

What’s more, she says, “the case appears to fly in the face of the legal tenet ‘caveat emptor’. In both cases it was the subsequent owners who applied to have the register rectified. How were they so successful when the original landowners failed? Without more detail of what arguments were raised when the registration was first made a cynic may say that perhaps the decision was made and the judgment drafted to fit the decision.”

Against a backdrop of a government policy pushing for more houses to be built, it would be easy to view the ruling as a decision supporting development for political purposes. But the ruling does not provide unequivocal in favour of developers. While not endorsing the Court of Appeal on inference of prejudice, it also makes clear that parties involved in ‘village green’ disputes will have to make a strong enough case for their claims taking account of various possible prejudices either way.

Jean-Yves Gilg is editor of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk