| Commons — Town or village green — Registration — Developer acquiring land and seeking order for rectification of register by removal of land from register — Whether court’s jurisdiction to rectify register appellate jurisdiction — Whether determination of application for registration by authority judicial or administrative process — Commons Registration Act 1965 (c 64), s 14
Betterment Properties (Weymouth) Ltd v Dorset County Council
Ch D: Lightman J: 2 March 2007
The jurisdiction conferred upon the court to amend a register of town and village greens under s 14 of the Commons Registration Act 1965 was not an appellate jurisdiction. Accordingly, 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 to the register, whether it was just to rectify the register, what should stand as evidence and what evidence should be admitted.
Lightman J so held in the Chancery Division in determining two preliminary issues which arose in a claim by Betterment Properties (Weymouth) Ltd against the defendant Dorset County Council for an order under s 14 of the Commons Registration Act 1965 for the rectification of the register of town and village greens, by removing therefrom an area of undeveloped land which the claimant had acquired.
In 1997 a member of a preservation society of Markham and Little Francis, Dorset, applied to the defendant authority under s 13 of the Commons Registration Act 1965 for the registration of an area of undeveloped land as a town or village green. S 98 of the Countryside and Rights of Way Act 2000 substituted a new definition of “town and village green”to that contained in the 1965 Act, but that definition did not come into force until 30 January 2001. The defendant authority formed a panel to determine the s 13 registration application and a hearing took place in December 2000. The panel proceeded on the basis that the new, amended definition of town and village green contained in the 2000 Act was applicable. The panel decided to allow the application and the register was amended pursuant to s 13 of the 1965 Act. In 2004, the claimant, a property developer, acquired the land and brought proceedings against the defendant for an order under s 14 of the 1965 Act for rectification of the register by the removal of the area of land from it. The court ordered that there be a trial of two preliminary issues: (i) whether the jurisdiction conferred upon the court to rectify the register by s 14 of the 1965 Act was by way of rehearing or appellate or on some other basis and (ii) whether an application to register land as a town or village green made before 30 January 2001, but not determined before that date, should be determined by reference to the definition of town and village green as it existed before the amendment effected by s 98 of the 2000 Act, or by reference to that amended definition.
LIGHTMAN J said that the language of s 14 did not suggest that the role of the court was the exercise of an appellate or supervisory jurisdiction or that the jurisdiction should only be exercisable if the registration authority in directing registration made an error on the evidence before it or an error of law; the section required only that it should appear to the court, on the evidence before it, that for any reason, factual or legal, no amendment or a different amendment should have been made and that it was just to rectify the error on the register. 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 the exercise of its case management powers would have regard to the process adopted by the registration authority or panel when the s 13 amendment was made and the evidence adduced before it. Accordingly, s 14 imposed no fetter on the evidence or arguments which may be relied upon to establish that no amendment or a different amendment should have been made, even as it imposed no fetter upon the evidence or argument which may be relied upon that it was or was not just to rectify the register. The critical question was whether the registration application gave rise to an administrative or judicial process, as the provisions of the 2000 Act could be presumed to have retrospective effect if proceedings were of an administrative nature. The determination by the panel involved a judicial, not an administrative determination. The only question for the panel was whether the statutory conditions for registration of the land had been satisfied; there was no scope for any administrative discretion or balancing of competing interests. The panel was an administrative body, but that did not mean that its function in determining applications for registration was administrative. Accordingly, the outcome of whether the land was a “town or village green” was to be determined by the definition in force when the application was made and the panel should have determined the application by reference to the unamended definition.
|
