Putting right a mistaken registration is not easy

An erroneous decision to register land as a village green is catastrophic for the owner. Once registered as a green, the land is effectively sterilised for ever. To put right a mistaken registration is not at all easy. This is for two reasons.

First, the law has been in a state of almost continuous development since the seminal Sunningwell case in 1999. Any landowner seeking since then to challenge an erroneous registration will have had to do so against a background of extraordinary judicial activity. Therefore uncertainty as to what the law actually is on matters such as the meaning of the phrase “as of right”, (see section 15 Commons Act 2006), or as to the type of hearing permitted by section 14 of the Commons Registration Act 1965 when mounting a challenge to registration (resolved in 2008 by the Court of Appeal in the first Betterment case); or the meaning of “locality” (not resolved until 2013 by the Court of Appeal in the Paddico case).

Easily rectified

Second, section 14, which remains in force outside certain limited “pioneer” areas of the country despite the repeal of the 1965 Act by the Commons Act 2006, has a sting in the tail. A court will grant rectification only if it is shown the registration ought not to have been made and that it is just to rectify. What does just mean? And, in particular, although section 14 has no limitation period, will it be unjust to rectify if years have elapsed since the mistaken registration? In Betterment (No 2) and Paddico (judgment handed down on 5 February 2014), the Supreme Court has addressed this question of delay or, as Lady Hale preferred to call it, “lapse of time”, as it applied to the facts of those cases.

The majority of the Court of Appeal (Sullivan and Carnwath LJJ) had taken the view in Paddico, but not in Betterment, that enough time had passed between registration and commencement of proceedings to entitle the court to infer prejudice to relevant interests or to good administration, sufficient to warrant refusal of rectification. The Supreme Court has rejected this inferred prejudice approach, preferring Patten LJ’s view that any finding of prejudice should be soundly based on evidence. As there was no material proven prejudice in either case, the Supreme Court restored the decisions of the first instance judges ordering rectification. The fact that in Paddico 12 and a half years
had elapsed since the
original mistaken registration was insufficient of itself to
bar rectification.

Defining locality

The Betterment and Paddico cases were extremely hard-fought in the courts below on the meaning of “locality” in the 1965 Act (both cases) and on the issue of non-peaceable use (Betterment only). Although the landowners were successful on those issues, the Supreme Court only gave permission to appeal on the separate issue (relevant to whether it would be “just” to rectify the registers) of the relevance of delay and the factors relevant to delay. Giving the only judgment, Lady Hale recognised that a landowner who, knowing the facts, had acquiesced in the registration and done nothing over time to challenge the registration might thereby disentitle himself from seeking registration. But for her, “the crux of the matter” would usually be proof of detriment or prejudice whether (i) to local inhabitants; (ii) to other individuals; (iii) to public authorities and the public they serve; or (iv) to the fair hearing of the case.

Under each of these headings, at paragraphs 38-41, she gave helpful examples of the kind of prejudice which might tip the balance in favour of the public. Other things being equal, the more the landowner delays in bringing proceedings, the easier it may be to prove that some relevant prejudice flows from it.

Landowners who can show that a mistake was made in the past in registering their land as a green will be encouraged by the outcome of these cases to claim rectification, even though it may be anticipated that strenuous attempts will be made by local people to prove that they or others have suffered prejudice because of the delay in seeking relief, and that it is accordingly
not just to rectify. The stage seems set for further disputes in this very contentious area
of the law. SJ

George Laurence QC practises from New Square Chambers

www.newsquarechambers.co.uk