News

Leeds Group PLC v. Leeds City Council [2011] EWCA Civ 1447

DATE: 05 Dec 2011

Land belonging to Leeds Group PLC was registered as a town and village green by the City Council on the basis of the new definition in s.22(1A) of the Commons Registration Act 1965 as amended by s.98 of the Countryside and Rights of Way Act 2000. The landowners challenge to the registration failed in the High Court and Court of Appeal [2010] EWCA Civ 1438. However, the Court of Appeal allowed the Appellant to raise further grounds relating to: (1) whether the construction applied to s.22(1A) made it unfairly retrospective; and (2) whether s.22(1A) was incompatible with article 1 of the First Protocol of the European Convention (“A1P1”). The Leeds City Council did not participate in the renewed appeal, and the Secretary of State for the Environment, Food and Rural Affairs intervened on these additional grounds.

Until the 2000 Act, those applying for land to be registered as a town and village green (“TVG”) had to show that the land had been used as of right for a period of 20 years by inhabitants of a “locality”  - namely a parish, a town or similar. S.98  introduced a new s.22(1A) “neighbourhood” limb (an estate, group of houses  or similar) to the definition of TVG which was designed to make it easier for applicants for registration to satisfy the evidential tests. Use had to be continuing up to the date of the application.  In the case of the Appellant, the new definition had not applied for 17 of the 20 years relied on. The Appellant contended that it was “grotesquely unfair” (and a breach of A1P1) for the legislation to operate so as to allow that 17 years to count given that during those 17 years there was no neighbourhood limb” in the definition. It claimed that the legislation was objectionably retrospective. The Court of Appeal did not agree.

Properly construed, the new definition applied to any application post-commencement of s.22(1A) such that the 17 years did count. Any other construction  would be absurd. There was no unfairness.  Landowners had had time to protect themselves from the effects of the new legislation and it could not be said that the legislative scheme was “manifestly without reasonable foundation”: the A1P1 test following  Pye v. UK.

George Laurence Q.C. and Ms Jane Evans-Gordon for the Appellant. David Forsdick for the Secretary of State.