| 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 — Commons Registration Act 1965, s14
Betterment Properties (Weymouth) Ltd v Dorset County Council [2008] EWCA Civ 22; [2008] WLR (D) 37
CA: Laws, Rix and Lloyd LJJ: 6 February 2008
On an application to the High Court to remove land from the register of town and village greens, the parties could adduce whatever evidence they wished, subject to the court’s exercise of its case management powers.
The Court of Appeal so held in dismissing an appeal by the defendant, Dorset County Council, against the decision of Lightman J in the Chancery Division on 2 March 2007, on the trial of two preliminary issues in an application by the claimant developer, Betterment Properties (Weymouth) Ltd, pursuant to s 14 of the Commons Registration Act 1965, to remove from the register land in Weymouth which had been registered in 2001 as a town or village green under s 13 of the Act.
LLOYD LJ said that the first question was as to the nature of the hearing before the High Court under s 14: was the jurisdiction of the court by way of a rehearing, or appellate, or was it on some other basis and if so what? The county council had argued that the role of the court under s 14 was, in essence, to consider an appeal against the decision of the registration authority under s 13, and that although s 14 did not speak of an appeal, that was what the court would be hearing. Accordingly, no evidence should be adduced before the High Court unless it could be justified as fresh evidence which could be admitted on an appeal in accordance with the principles in Ladd v Marshall [1954] 1 WLR 1489. The claimant pointed out that the section was not drafted in terms of an appeal and contended that it was open to any party to adduce whatever evidence it wished, subject to the court's exercise of its case management powers, though the evidence which was before the original inquiry should be put before the court and should be capable of being admitted as evidence subject to the court's directions. In his Lordship’s judgment, the judge was right to accept the claimant’s submission on the first question. His Lordship also agreed with the judge that, the application having been made under the 1965 Act as it stood before amendment by s 98 of the Countryside and Rights of Way Act 2000, which came into force in January 2001 after the hearing of the inquiry under s 13 but before the decision had been made, it should be determined on the basis of the law as it then stood. If Parliament had provided for the amended definition to apply to applications already pending, that would have been a different matter, but it did not.
LAWS and RIX LJJ agreed.
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