Supreme Court allows removal of incorrectly-registered land from village greens register despite delays

Out-Law News | 07 Feb 2014 | 9:59 am | 4 min. read

The Supreme Court has allowed the removal of two pieces of land, that were incorrectly registered as town or village greens (TVGs), from the register preventing their redevelopment, despite the landowners' lengthy delays in applying for the rectifications.

The TVG regime allows land to be registered if it has been used "as of right" for recreational purposes for 20 years. Once registered, local residents have a recognised right to use that land for recreational purposes. It is an offence for a landowner to wilfully do anything on a TVG that will injure the land or interrupt the public's use or enjoyment of it.

Ruling in two cases, one of which concerned a piece of land which was registered as a TVG in April 1997, the judges said that there was no evidence that the delay had caused "significant detriment" to local residents. Although the length of time between incorrect registration and the landowner's application for removal was "not immaterial", a balance had to be struck between the right of the landowners and the rights of local residents, they said.

"Where the applicant is the owner of the land, the starting point, as it seems to me, is that the landowner's rights have been severely curtailed when they should not have been, and the inhabitants have acquired rights which they should not have had," said Lady Hale in her leading judgment.

Dev Desai, an expert in TVG cases at Pinsent Masons, the law firm behind Out-Law.com, said that the decision provided an "exciting opportunity" for owners of TVG land to consider whether there may be grounds to challenge that registration, even if the land had been registered as a TVG "for decades". The law in relation to registration and challenges had been "in a state of flux" for several decades, leaving many unsure about the prospects of success of any rectification application, he said. "However, the law has been clarified and refined over that period and, with the benefit of this latest Supreme Court decision, landowners and prospective investors can see that a very long delay in making a rectification application is not necessarily fatal," he said.

"The Paddico case concerned a village green that was registered in April 1997, over 15 years ago. The Betterment case involved a delay of over 11 years. The Supreme Court decided that this delay did not constitute any real detriment to the local inhabitants who used the land as a village green, since they never should have been given the right to do so. Set against the substantial prejudice to the landowner in not being able to properly exploit and develop the land, the Supreme Court considered that rectification should be allowed to remove the TVG status from both pieces of land," he said.

Desai said that, following the Supreme Court's decision, landowners with land blighted by registration could apply to have that status removed, allowing them to "unlock the development value and potential of the land". It was also possible that some investors could "actively seek out village greens with challengeable registrations" and take "calculated risks in acquiring them for prices based on their village green status", he said.

The Supreme Court's ruling concerned the effect of a lapse of time on an application for rectification of a wrongly-made registration. At issue was a piece of land known as Clayton Fields in Huddersfield, now owned by Paddico, and land known as Markham and Little Francis in Weymouth, now owned by Betterment. In the Paddico case, planning permissions dating back to the 1960s had been granted for housing development on the land but no building had occurred by 1997, when it was successfully registered as a TVG. The registration was initially challenged, but this challenge did not proceed and Paddico began a fresh challenge in 2010. In the Betterment case, the land was registered as a TVG in 2001 and Betterment challenged this when it purchased the land in 2005.

In both cases, issues of whether the land had been wrongly registered had already been settled by the lower courts. Both the High Court and Court of Appeal agreed that the registration of the Betterment land should not stand. The High Court ruled that the Paddico registration should also be rectified, but the Court of Appeal overturned this due to the length of time that had passed between registration and application for rectification. However, the Supreme Court disagreed.

"There is no evidence at all of any specific prejudice to the local inhabitants, other than the loss of the right to use the land for recreation," said Lady Hale. "On the other side of the coin, [the Court of Appeal judge] was wrong to suggest that 'all other things were equal'. Paddico would suffer injustice as a result of being wrongly deprived of the right to seek to develop the land. The company would suffer injustice in being deprived of the likelihood that they would benefit from the overage provisions in the sale contract. The public would suffer prejudice in the land not being available for the use to which the democratic planning procedures had decided that it should eventually be put. In my view the [High Court] judge was entitled to reach the conclusion that he did and his decision should be restored," she said.

"It is noteworthy that there is no time limit for the statutory right to seek rectification of the village green register," said property litigation expert Dev Desai. "Therefore, in order to regulate when a party could make such an application, the Supreme Court drew an analogy with the equitable principle of laches to decide that the crucial question was whether any delay in making a rectification application caused detriment or prejudice. On this basis, the court engaged in a balancing act between the prejudice suffered by local inhabitants and the owner of the village green to come to a just result."

The Court of Appeal is currently considering TVG rectification time limits in relation to transitional provisions in the 2006 Commons Act that created a five year 'grace period'. In July 2013, the High Court ruled that retrospective corrections to an invalid application in relation to the piece of land known as Bushfield Camp, after the time limits for the application had passed, were permitted on the grounds of fairness. The Court of Appeal's decision is due within weeks.