Home > Cases > Betterment Properties (Weymouth) Ltd v Dorset County Council [2008] EWCA Civ 22; (2008) 6 EG 130 (CS); (2008) NPC 15

The appellant local authority appealed against a determination of preliminary issues ([2007] EWHC 365 (Ch)) in favour of the respondent company (B). An application had been made under the Commons Registration Act 1965 s.13 to register land as a town or village green on the basis that relevant use of the land had taken place for 20 years by local inhabitants, under the definition provided in s.22 of the 1965 Act. In 2000, a non-statutory inquiry was held and in June 2001 the panel announced that it accepted the evidence of use over 31 years, applying the definition of town or village green provided in the Countryside and Rights of Way Act 2000 s.98. B later acquired the land and started the instant proceedings to have the land removed from the register under s.14 of the 1965 Act. Preliminary issues arose concerning the jurisdiction of the High Court under s.14 of the 1965 Act and the appropriate definition of town or village green to apply when an amendment to that definition came into force after the passing of the 2000 Act and after the hearing of the inquiry under s.13 of the 1965 Act but before the panel had made its decision.

The appeal would be dismissed.

(1) On an application under s 14 of the 1965 Act, the court was free to adopt the procedure best calculated to enable a just and fully informed decision to be reached as to whether ‘no amendment or a different amendment ought to have been made’, whether it was just to rectify the register, what should stand as evidence and what evidence should be admitted. The court in exercise of its case management powers would have regard to the process adopted by the registration authority or any panel when the amendment of the register under section 13 of the 1965 Act was made and the evidence that had been adduced before it. It would no doubt have in mind that with the passage of time recollections would have dimmed, and potential witnesses might have died or ceased to be available. It might, for example, direct that evidence adduced before the registration authority or any panel, particularly if it had not been challenged, should stand as evidence, and that any finding should stand: (i) as a finding of fact at the hearing before the court; (ii) as evidence; or (iii) as a finding of fact in the absence of evidence to the contrary; and in deciding on the admissibility of evidence the court would no doubt bear in mind that no amendment should be rectified unless it was just to do so, and that it might be unjust to order rectification on the basis of new evidence, which, for example, could no longer be challenged, although it could have been challenged when registration had taken place.

The phrase ‘ought to have been made’ in s 14 of the 1965 Act did not point to a review based on the material that had been before the registration authority rather than a review at large. It was equivocal, and guidance had to be found elsewhere. The absence of Regulations under s 14(b), which could have provided for the correction of errors, supported the view that the process under s 14 itself should be taken to be at large. However, the absence of a time limit was a pointer away from an appeal. Registration of land as a town or village green was of major significance to a landowner, with the blight that it cast on any development. The procedure under s 13 was relatively simple and informal with, in particular, no provision for the service of witness summonses or the disclosure of documents.

(2) The original definition of town or village green in the 1969 Regulations applied where the application under s 13 of the Act was pending on 30 January 2001.

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