Paddico (267) Ltd v Kirklees Metropolitan Council & Ors [2011] EWHC 1606 (Ch)

[2011] EWHC 1606 (Ch)Case No HC10C00295
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/06/2011
Before
MR JUSTICE VOS
Between
Paddico (267) LimitedClaimant(1) Kirklees Metropolitan CouncilDefendants(2) William John MageeDefendant(3) Thomas Michael Courtney HardyDefendant
Mr George Laurence Q.C. and Ms Ross Crail (instructed by DLA Piper UK LLP) appeared for Paddico (267) Limited for The Kirklees Metropolitan Council did not appear and was not representedMr William Magee and Mr Thomas Hardy appeared in person for in personHearing Hearing dates: 25 th, 26 th, 27 th May, 7 th and 13 th June 2011Judgment

Introduction

[1]Paddico (267) Limited (“Paddico” or the “Claimant”) seeks an order that the register of town and village greens (the “Register”) maintained by Kirklees Metropolitan Council (the “Council”) be rectified by the removal from it of the entry relating to an area of grassland amounting to some 6½ acres in the otherwise densely built up Edgerton district of north west Huddersfield known as Clayton Fields (the “Land” or “Clayton Fields”). The application is made pursuant to section 14 of the Commons Registration Act 1965 (the “1965 Act”).[2]Mr William John Magee (“Mr Magee”) and Mr Thomas Michael Courtney Hardy (“Mr Hardy”) (together “Messrs Magee and Hardy” or the “Defendants”) have appeared in person to oppose the application in their capacities as respectively Chairman and Secretary of the Clayton Fields Action Group (the “CFAG”). The Council declined to take an active part in the proceedings, and neither attended nor was represented at the hearing. I was told that it was ‘neutral’ and that it would abide by any order the court might make.[3]In the broadest of outline, Paddico is a development company, which acquired Clayton Fields in October 2004 from George Haigh & Company Limited (“George Haigh Ltd.”), some 7½ years after it had been registered as a town or village green (“TVG”) under the 1965 Act, as a speculative investment. It hopes, by this application, to remove the registration of the Land and thereby to free it up for development purposes. The CFAG, on the other hand, wishes to preserve the registration so that Clayton Fields can continue to be used by local residents for sports and leisure pastimes, as it has been for many years past.[4]The law of TVG registration is by no means straightforward and has been the subject of numerous recent authoritative decisions. I have been ably assisted in understanding the latest legal position by the submissions of Mr George Laurence Q.C. and Ms Ross Crail. They and their instructing solicitors, DLA Piper UK LLP have, in the best traditions of their professions, attempted also fairly to put forward the opposing position bearing in mind that the Defendants have been unrepresented and the Council has not attended. I want also to thank Mr Hardy and Mr David Bowen for their courteous and helpful submissions on behalf of the Defendants and the CFAG.[5]Mr Laurence has submitted, and I accept, that there are effectively three basic questions that I must answer that arise from section 14 as follows:- i) Whether the Land ought or ought not to have been registered as a TVG by the Council for the reasons it relied upon on 14th April 1997? ii) If the Land ought not to have been registered, whether its registration can be supported on any of the alternative bases for which the Defendants contend? iii) Whether the court deems it just to rectify the register within the requirement of section 14 of the 1965 Act?[6]Mr Laurence’s primary submission is that the Council was wrong to register the Land as a TVG in the first place in 1997 because it had not been shown and could not have been shown that it was land “on which the inhabitants of any locality have indulged in such [lawful] sports and pastimes as of right for not less than twenty years” within what is known as “class c” of the definition of “town or village green” in section 22(1) of the 1965 Act. The reason, says Mr Laurence, why that requirement was not met was that the usage of the Land was not shown to have been by the “inhabitants of any locality”, the term “locality” having been given a highly technical and specialised meaning by the authorities over many years. According to Paddico’s submissions, “locality” was to be taken as meaning a “legally recognised administrative district”, and user had to be predominantly by inhabitants of such a legally recognised administrative district. At the time of the registration, the CFAG identified the relevant “locality” in its application form as “Edgerton/Birkby”, and again according to Paddico, there was no such legally recognised administrative district as “Edgerton/Birkby” or indeed either Edgerton or Birkby, so the application should have failed.[7]Before me, the CFAG’s representatives have attempted to show two things: first, that the user was demonstrated, in 1997, to have been by the inhabitants of a qualifying “locality”, and secondly, that if that was not the case and a mistake was made by the Council in 1997, the necessary criteria can now be met because the requirement for user by the inhabitants of a “locality” has been relaxed by the introduction of section 98 of the Countryside and Rights of Way Act 2000 (the “2000 Act”). As from 30th January 2001, the user could be either “by a significant number of the inhabitants of any locality or of any neighbourhood within a locality”. According to the CFAG, therefore, a new application made now would anyway be able to show user by the inhabitants of the neighbourhoods of Edgerton and Birkby surrounding Clayton Fields. They rely on the Church of England parishes of Holy Trinity Huddersfield (“Holy Trinity Parish”) and St John the Evangelist Bay Hall (“St John Parish”), the Edgerton Conservation Area, and the urban settlements of Edgerton and Birkby identified by the Council from the data obtained from the 1991 Census.[8]Before dealing with these arguments in greater detail, I should set out some of the background and history that has given rise to this application.

Clayton Fields

[9]Paddico is the current registered proprietor of the vast majority of Clayton Fields, under title numbers WYK 34112 and YWE 6677. A narrow strip on the northern edge of Clayton Fields to the north of the stream known as Clayton Dike is owned by the Council. The remainder of Clayton Fields (which consists of two small plots on the southern edge of the land) is believed to be owned by the West Yorkshire Integrated Transport Authority.

Chronological background

[10]The first references in the historical materials to the village of Edgerton were in 1311 (only 122 years after the accession of Richard I) according to the Public Record Office in Kew, and on a map of the Huddersfield area dating from 1370.[11]The first reference to the village of “Bikebye” was in 1586 according to a book entitled Place Names of the West Riding of Yorkshire Part 2, Cambridge, 1961. It appears that Birkby Manor became part of Huddersfield Manor in 1599, when it was purchased by the Ramsden Estate.[12]Clayton Fields was first named on a 1580 plan as part of the Stony Lee Estate (otherwise known as the Lee Head Estate). It was part of the manor of Bay Hall until 1599, when it too was purchased by the Ramsden Estate.[13]In 1868, the parish of Huddersfield (which included Edgerton and Birkby) came to be administered by the Huddersfield County Borough Council. In 1920, the then Huddersfield Corporation bought most of the Huddersfield area from the Ramsden Estate.[14]On 31st October 1966, planning permission was granted for 2 bungalows on Clayton Fields located off Deveron Grove. A list of sites where development was started before 6th April 1967 shows work as having commenced in relation to this permission on 6th December 1966.[15]On 30th January 1967, planning permission was granted for 20 houses, 23 bungalows and 12 blocks of flats on part of the Land. Mr James Haigh of George Haigh Ltd said in a statutory declaration dated 17th March 1997 that foundations were excavated and concreted after the permission was obtained, so that the development was to be considered as having been commenced. The list of sites where development was started before 6th April 1967 shows work as having commenced in relation to this permission on 7th March 1967.[16]On 31st July 1970, the extended period allowed for registration of TVGs under section 1 of the 1965 Act expired.[17]In 1972, Clayton Fields was allocated for housing within the Huddersfield Town map. On 1st April 1974, the Kirklees Metropolitan Council was established. On 5th January 1977, the Edgerton Conservation Area was designated as such by the Council, and on 9th January 1981, the designation of the Edgerton Conservation Area appeared in the London Gazette.[18]In August 1986, the Huddersfield Local Plan was adopted showing Clayton Fields allocated for housing development on the Proposals Map.[19]In August 1990, Clayton Fields is alleged by the Defendants to have become a TVG.[20]On 16th November 1990, the Council wrote to George Haigh Ltd.’s solicitors in relation to an intended tree preservation order on Clayton Fields saying that they had checked the Council’s records and that the January 1967 planning permission was still valid as work had commenced.[21]In September 1992, the Land was occupied by caravan dwellers, and George Haigh Ltd. obtained an order for possession of Clayton Fields against them.[22]In 1993, the deposit draft of the Kirklees Unitary Development Plan (the “UDP”), designating Clayton Fields as a site for housing, was advertised in the London Gazette and in local newspapers to invite public consultation.[23]In July 1996, George Haigh Ltd. submitted a planning application in respect of Clayton Fields seeking detailed consent for 25 affordable homes and outline consent for 47 houses. The application included some two acres of public open space and footpaths. Though officers recommended approval of the detailed part of the application, and refusal of the outline part of the application, in the event, the members of the Council failed to deal with it, meaning that there was a deemed refusal.[24]On 14th November 1996, George Haigh Ltd. lodged an appeal from the Council’s refusal of the July 1996 planning application to the Secretary of State.[25]On 4th December 1996, Messrs Magee and Hardy (in their respective capacities as Chairman and Secretary of the CFAG) made an application for the addition of Clayton Fields to the Register under section 13 of the 1965 Act and the Commons Registration (New Land) Regulations 1969 (SI 1969/1843) (the “1969 Regulations”) (the “1996 application”). I shall return to the details of the 1996 application, but, as I have already said, the application form identified the relevant locality as “Edgerton/Birkby”. Nothing in the 1996 application indicated that the Defendants were aware of the need to show that the users of the Land were predominantly the inhabitants of a legally recognised administrative district. The entry in the Register dated 4th December 1996 reads as follows: “All that piece of Land known as Clayton Fields, Huddersfield in the Metropolitan Borough of Kirklees, as marked with a green verge line inside the boundary on the register map and distinguished by the number of this register unit. Registered pursuant to the application No KMC/UG2 made 4 December 1996 by Wm. Magee and Thomas Hardy on behalf of [CFAG]”.[26]At some point in 1997, an inspector examined the draft UDP and reported that Clayton Fields should remain allocated for housing, with a footnote that “a development brief including requirements for access, footpaths, open space and the protection of trees is to be prepared”.[27]On 13th March 1997, Mr David Ellis, a local resident, made a statutory declaration opposing the 1996 application. On 17th March 1997, Mr James Haigh of George Haigh Ltd. and Mr Richard Wade-Smith, a partner in Wilbraham & Co, solicitors for George Haigh Ltd., made further statutory declarations opposing the 1996 application. Mr Wade-Smith’s declaration expressed the view that the “locality must form a ‘distinct and identifiable community’”. He continued at paragraphs 13.2 and 13.3 as follows:- “13.2. The ‘specific locality’ in this instance appears to be Edgerton, a suburb of Huddersfield. In order to qualify under the definition of ‘locality’ the ‘users’ of Clayton Fields must come from within the locality of Edgerton. Likewise the inhabitants of Edgerton who ‘use’ Clayton Fields must be of a sufficient number within Edgerton to qualify as a locality – it is not sufficient to argue that the locality forms one or two streets. 13.3 The statutory declarations which support the application indicate that the members of the [CFAG] cover a wider area than Edgerton itself with the authors of the statutory declarations living in Birkby, Lindle, Lockwood and Fixby … In Edgerton itself over one half of the [CFAG] live on Queen’s Road and George Avenue only. Thus in applying the criterion that a [TVG] should serve a ‘distinct and identifiable community’ it is difficult to reason that the applicant forms a ‘distinct and identifiable community’ because members of the [CFAG] are dispersed too widely. Alternatively the concentration of the [CFAG] in Queen’s Road and George Avenue is too narrow to constitute a locality and therefore cannot be described as a ‘distinct and identifiable community’”.[28]On 4th April 1997, Messrs Magee and Hardy responded to Messrs Ellis, Haigh and Wade-Smith with a statutory declaration in relation to the locality including the following:- “13.2 The application clearly states the locality to be Birkby and Edgerton and a map is attached showing these areas. 13.3 If the declarations of authors from Lindley (not Lindle sic), Lockwood and Fixby are examined it will be immediately obvious that the declarations refer to periods when the authors lived within the Birkby/Edgerton locality … We submit that this paragraph is therefore incorrect and that our evidence does come from within a clearly defined locality of sufficient size. 18. … it seems that the author of this declaration has not properly examined our definition of locality as Birkby and Edgerton as defined on the map attached to the application. This clearly constitutes a “locality” as required…”.[29]On 14th April 1997, the Council held an oral hearing before its Policy (General Purposes) (Executive) Sub-Committee (the “Committee”), which had delegated authority to determine the 1996 application. George Haigh Ltd. was represented by Counsel, Mr David Manley, but Mr Hardy represented the CFAG in person. Mr Hardy submitted that “Birkby and Edgerton are, we believe, perfectly clearly defined areas. It is a perfectly clear locality … and that all the people who are making this claim are from that area”. In response, Mr Manley referred to a number of authorities culminating in the decision by Harman J in Ministry of Defence v. Wiltshire County Council [1995] 4 All ER 931 (the “Ministry of Defence case”), the effect of which he summarised as follows:
“In other words, the claim as of right must relate to something more than just a committed group of people who live in one, two, three or four streets. It has to relate to a unit recognised by law, most probably a parish, but sometimes other properties … A locality is a distinct and recognisable place that the law recognises. In this case, you have a plan … [showing] where the members of the [CFAG] live, and they do not as a matter of clear fact or law all come from the locality …”
. In his reply, Mr Hardy said:
“I think the issue of locality is one which, quite frankly, is a nonsense … we believe Birkby and Edgerton are well defined localities which have existed in Huddersfield for a very long time, as long as parishes certainly … Mr Wade-Smith … actually had two goes at biting the cherry, because he tried to claim that it could not be a [TVG], because the residents of Queens Road were too small a number and in the next breath saying because some of the declarers come from Lindley and Fixby and Lockwood, it cannot be because it is too big. Let us make up our minds on this. Birkby and Edgerton are well defined localities and we are residents from there; it is a community”
. After a short adjournment, the Chairman of the Committee said simply this: “The decision of this committee is that the application for the registration of land at Clayton Fields, Edgerton under the [1965 Act] section 13 is granted. That is the decision of this committee. Thank you”.[30]On 14th April 1997, Clayton Fields was added to the Register under register unit number KMC/UG2. The entry of that date read as follows: “Registration confirmed and finalised. Decision of Reg. Authority 14/4/97”.[31]In May 1997, George Haigh Ltd. commenced proceedings pursuant to section 14 of the 1965 Act to rectify the register by the removal of the registration of the Land (the “May 1997 proceedings”). In support of the May 1997 proceedings, an affidavit was sworn by a Mr Alyn Kenneth Nicholls on 29th August 1997, to which he appears to have exhibited at page 374 of AKN 10 a plan prepared by the Council showing the settlement boundaries of Edgerton and Birkby and the other suburbs or districts of Huddersfield (the “Settlement Plan”). Little seems to have been made of the Settlement Plan by the CFAG, though Mr Nicholls’s affidavit does appear to have been the first time that the boundaries of the areas known as Birkby and Edgerton had been shown, in any debate between these parties, to have been delineated. I will say a little more about the provenance of the Settlement Plan in due course.[32]The May 1997 proceedings were in due course automatically stayed for want of prosecution pursuant to CPR 51 PD 19(1). It appears that George Haigh Ltd. was advised (Paddico says wrongly) that it could not succeed in its application. I was shown counsel’s opinion, but it did not seem to me to be a useful exercise to examine its contents in any detail.[33]On 30th November 2000, the 2000 Act, introducing a revised definition of class c TVG’s into section 22(1) of the 1965 Act, received the Royal Assent. From 30th January 2001, applications for registration were governed by the amended section 22 (by section 98 of the 2000 Act).[34]On 26th October 2004, George Haigh Ltd. transferred the parts of Clayton Fields which it owned to Paddico. On 15th March 2005, Paddico was registered as proprietor with freehold title absolute of the parts of Clayton Fields previously owned by George Haigh Ltd., under title numbers WYK 34112 and YWE 6677.[35]On 12th July 2007, revisions to the boundary of the Edgerton Conservation Area made in March 2007 were published by the Council in the London Gazette.[36]On 19th August 2009, Deputy Master Collaço Moraes refused an application by Paddico to lift the stay on the May 1997 proceedings. Paddico’s appeal was subsequently rejected by Mann J on paper, and the renewed oral application for permission to appeal before Sales J was also rejected on 24th March 2010. Neither Mann J nor Sales J considered the merits of the application under section 14.[37]On 28th January 2010, Paddico issued a new Part 8 claim form in these proceedings against the Council and Messrs Magee and Hardy, seeking an order for the removal of Clayton Fields from the register of TVGs pursuant to section 14 of the 1965 Act.[38]On 21st June 2010, a notice of discontinuance was filed in respect of the May 1997 proceedings.[39]On 22nd November 2010, the Council wrote to Paddico’s solicitors, DLA Piper, confirming that they would not be taking an active part in these proceedings.[40]On 24th March 2011, Mr Magee wrote to Paddico’s solicitors enclosing some 87 up-to-date sworn declarations from users of Clayton Fields upon which the CFAG sought to rely.[41]On 13th May 2011, Mr Magee informed Paddico’s solicitors that the CFAG would rely on evidence relating to the ecclesiastical parish boundaries in the vicinity of Clayton Fields.[42]On 16th May 2011, Paddico’s solicitors wrote to the Court saying that the application for a protective costs order listed to take place before Master Bowles on 17th May 2011 had been compromised by an agreement as to the costs of these proceedings to the effect that each party would be responsible for their own costs.[43]On 3rd June 2011, Ms Sara Wilson of the Council emailed Paddico to answer some questions it had raised concerning the Settlement Plan. The Council indicated that the settlements shown in that plan were used in the early 1990s by the Council’s research section to provide 1991 Census information at ‘small geographies’, that the Council did not know when they were compiled, and that the boundaries were arbitrary and had no legal standing. The email further indicated that the boundaries had changed slightly over the years as, for example, when the settlement of Highfields (which adjoined Edgerton) was merged with Edgerton because Highfields was too small for statistical analysis.

The 1996 application

[44]The documentation comprising the 1996 application requires careful examination as it shows the basis upon which the Council acted in registering Clayton Fields as a TVG under section 13 of the 1965 Act.[45]The first document that appears to have been lodged with the Council is a copy of the notes that are included in the 1969 Regulations (the “Notes”). It is an unfortunate reality that those who drafted these Notes included nothing to alert an unsuspecting applicant as to the true legal meaning of the word locality as it is used in section 22(1) of the 1965 Act. Instead, the Notes contented themselves with reciting the section 22(1) definition of a TVG, leaving the applicant in the dark as to how the authorities had understood the meaning of the words “inhabitants of a locality”.[46]The 1996 application Form 30 itself was dated 4th December 1996, and was completed in manuscript by Messrs Magee and Hardy. Part 3 was headed “Particulars of the Land to be Registered i.e. the land claimed to have become a town or village green”. The three simple questions under that heading were “Name by which usually known”, “Locality” and “Colour on plan herewith”, which the Defendants answered respectively “CLAYTON FIELDS”, “Edgerton/Birkby”, and “Red”. In Part 4, the Defendants answered that the Land had become a TVG in August 1990. In Part 5, the Land was said to have become a TVG by “regular use over 20 yrs for games, past times & recreation by local residents”. The supporting documents referred to in Part 8 were the “Plan marked CFAG1. Area surrounded in Red” and the “Supporting declarations” from some 68 local residents. In Part 9, Messrs Magee and Hardy referred also to the “Attached Notes marked CFAG II”.[47]The statutory declaration required by the 1969 Regulations was completed by Mr Hardy. He declared that he had read the Notes, that the facts in the Application were truly stated and that he was not aware of any other facts that should be brought to the attention of the Council as likely to affect its decision. The Plan CFAG 1 and an attached narrative, which was exhibited to the declaration, identified Clayton Fields and its boundary, but included no significant parts of the surrounding areas.[48]The next document was headed “Notes to Clayton Fields Village Green Registration Application”, referring in detail to the history of the allegedly 50 years of public usage of the Land. Paragraph 4 explained how the then owner, George Haigh Ltd., had said in an attached article dated 1st October 1996 in the Huddersfield Daily Examiner that it had never objected to the public using the Land, though it had never before made that clear, so “there can never have been any possibility of “permissive use””. Paragraph 7 referred to the fact that the Land “lies within the Edgerton Conservation Area”. Paragraph 8 referred to the sworn statutory declarations showing user for more than 20 years, and paragraph 9 attached a second area plan showing “the areas of Birkby and Edgerton (the locality) with respect to Clayton Fields”. That plan had Birkby and Edgerton marked as areas, but did not show any boundaries for them.

The Commons Registration Act 1965

[49]Section 1 of the 1965 Act provides as follows:- “(1) There shall be registered, in accordance with the provisions of this Act and subject to the exceptions mentioned therein, — (a) land in England or Wales which is common land or a town or village green; … (2) After the end of such period, not being less than three years from the commencement of this Act, as the Minister may by order determine— (a) no land capable of being registered under this Act shall be deemed to be common land or a town or village green unless it is so registered; …”[50]Section 13 of the 1965 Act provides as follows:- “Regulations under this Act shall provide for the amendment of the registers maintained under this Act where—(a) any land registered under this Act ceases to be common land or a town or village green; or(b) any land becomes common land or a town or village green; or(c) any rights registered under this Act are apportioned, extinguished or released, or are varied or transferred in such circumstances as may be prescribed; . . .”[51]Section 14 of the 1965 Act provides as follows:- “The High Court may order a register maintained under this Act to be amended if - ... (b) the register has been amended in pursuance of section 13 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of regulations made under this Act; and ... the court deems it just to rectify the register”.[52]Four conditions must, therefore, be satisfied for an application under section 14 of the 1965 Act to succeed:- i) The register has been amended in pursuance of section 13 of the 1965 Act; ii) It appears to the court that no amendment or a different amendment ought to have been made; iii) It appears to the court that the error cannot be corrected in pursuance of regulations made under the 1965 Act; iv) The court deems it just to rectify the register.[53]It is the second and fourth of these four conditions that have given rise to the three issues identified by Mr Laurence.[54]Section 22(1) provided in its original form, which was in force at the time of the 1996 application, as follows:- ““town or village green” means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years”.

The 1969 Regulations

[55]The Commons Registration (New Land) Regulations 1969 (SI 1969 No 1843) came into force on 3rd January 1970.[56]Regulation 3 provided as follows:- “(1) Where, after 2nd January 1970, any land becomes common land or a town or village green, application may be made subject to and in accordance with the provisions of these Regulations for the inclusion of that land in the appropriate register and for the registration of rights of common thereover and of persons claiming to be owners thereof. … (4) An application for the registration of any land as common land or as a town or village green may be made by any person, and a registration authority shall so register any land in any case where it registers rights over it under these Regulations. … (7) An application must be— (a) in Form 29, 30, 31 or 32 as appropriate; … (c) accompanied by such documents (if any) as may be requisite under regulation 4 below; (d) supported— (i) by a statutory declaration as set out in the appropriate form of application, with such adaptations as the case may require …; and (ii) by such further evidence, if any, as, at any time before finally disposing of the application, the registration authority may reasonably require”.[57]Regulation 4 provided as follows:- “(1) Subject to paragraph (2) below, every application must be accompanied by, or by a copy or sufficient abstract of, every document relating to the matter which the applicant has in his possession or under his control, or of which he has a right to the production”.[58]Section 98 of the 2000 Act amended section 22(1) by substituting the following definition of a TVG: ““town or village green” means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or which falls within subsection (1A) of this section. (1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either—(a) continue to do so, or(b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions. (1B) If regulations made for the purposes of paragraph (b) of subsection (1A) of this section provide for the period mentioned in that paragraph to come to an end unless prescribed steps are taken, the regulations may also require registration authorities to make available in accordance with the regulations, on payment of any prescribed fee, information relating to the taking of any such steps”.[59]No regulations prescribing a period were ever made for the purposes of paragraph (b).

The Commons Act 2006

[60]The Commons Act 2006 (the “2006 Act”) will repeal and replace the 1965 Act. Section 15 of the 2006 Act governs applications for registration of land as a TVG made from 6th April 2007, but applications before that date are still governed by the 1965 Act. Commons Act 2006 (Commencement No 2, Transitional Provisions and Savings) (England) Order 2007 (SI 2007/456). The lack of regulations under section 22(1A) inserted by the 2000 Act was catered for by provisions in section 15 of the 2006 Act for applications to be made within a specified period of years after the cessation of qualifying user. Section 14 of the 1965 Act is to be repealed in respect of registrations after 1st October 2008 in pilot areas (not including the area of Kirklees Metropolitan Council), Commons Act 2006 (Commencement No 4 and Savings) (England) Order 2008 (SI 2008/1960). but it survives to govern this application. Section 19 of the 2006 Act concerning corrections to the register, which will replace section 14 of the 1965 Act, provides for a mistake in making an entry on the register to be corrected. Section 19(5) provides that a register may not be corrected if the authority considers that, by reason of reliance reasonably placed on the register by any person, it would “in all the circumstances be unfair to do so”. I mention this latter provision, since it seems it will replace the requirement for it to be ‘just’ to rectify the register.[61]The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 (the “2007 Regulations”) provide the new forms for the application to register a TVG under the Commons Act 2007. Form 44 includes a question 6 under the title “Locality or neighbourhood within a locality in respect of which the application is made” as follows:
“Please show the locality or neighbourhood within the locality to which the claimed green relates, either by writing the administrative area or geographical area by name below, or by attaching a map on which the area is clearly marked”
. Note 6 alongside this question reads:
“It may be possible to indicate the locality of the green by reference to an administrative area, such as a parish or electoral ward, or other area sufficiently identified by name (such as a village or street). If this is not possible, a map should be provided on which a locality or neighbourhood is clearly marked”
. It will be immediately obvious that this statutory question and the statutory note do not seem to envisage a definition of locality as prescriptive as that suggested by Mr Laurence. Messrs Magee and Hardy rely upon this statutory exposition of the meaning of locality as demonstrating that, even as late as 2007, the word “locality” was not understood by Parliament to mean quite what Mr Laurence contends.

The three categories of land registrable as a TVG

[62]The legislation, and in particular the definition of a TVG in section 22(1) of the 1965 Act in both its un-amended and amended form, makes it clear that there are three categories of TVGs as follows:- i) Class a: land which had been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality; ii) Class b: land on which the inhabitants of any locality had a customary right to indulge in lawful sports and pastimes; iii) Class c: land on which the inhabitants of any locality had indulged in such [i.e. lawful] sports and pastimes as of right for not less than 20 years.

Areas and districts in which Clayton Fields is situated

[63]Before dealing with the authorities, it is useful to consider the areas or districts in which Clayton Fields is situated. I use these words in an attempt to view the situation neutrally, since I will in due course have to consider whether any one or more of the candidate areas or districts qualify as “localities” or “neighbourhoods” under the relevant legislation. I will also deal under this heading with the evidence as to the places in which those who have used Clayton Fields reside.[64]I shall deal first with the figures concerning the 68 people who made statutory declarations that were placed before the Committee in 1997. They emanated from a total of 47 separate households. It appears that, in approximate terms:- i) 37 of those making declarations were living in the Edgerton area on the Settlement Plan, and 25 were living in the Birkby area. ii) 28 of those making these declarations were resident inside the Edgerton Conservation Area, and 40 outside (the figures do not quite add up). iii) 36 out of the 68 persons making declarations in 1997 resided in Holy Trinity Parish (which includes most of Edgerton) and 27 in St John Parish (which includes most of Birkby and which existed up to 25th November 1986).[65]In March 2011 in the context of these proceedings, the CFAG provided a further 87 sworn declarations concerning usage of Clayton Fields both before and after the 1996 application. There is some overlap between the declarations. The declarations are somewhat difficult to analyse because they relate to disparate time periods, but, in round terms, it seems that 114 declarations in total deal with a period prior to the 1996 application, and of those persons:- i) 68 of those making declarations were living in the Edgerton area on the Settlement Plan, and 32 were living in the Birkby area. ii) 57 of those making these declarations were resident inside the Edgerton Conservation Area, and 57 outside. iii) 55 out of the 114 persons resided in Holy Trinity Parish (which includes most of Edgerton), 33 in St John Parish (which includes most of Birkby and which existed up to 25th November 1986), and 35 in North Huddersfield Parish (which existed from 25th November 1986).[66]In relation to all these figures, the Defendants pointed out that they were conservative because, in each case, some of the declarations were from people who were then resident outside the area, but spoke of a time when they had resided close to Clayton Fields and had used it for recreation.[67]Rather than exhibit plans to this judgment, I should explain the areas that I have just mentioned as follows:- i) The Settlement Plan shows Edgerton as an irregular but broadly rectangular area with Clayton Dike, a stream running east-west close to the northern boundary of, but inside, Clayton Fields, on Edgerton’s northern boundary. On a rough estimate, Clayton Fields constitutes approximately 5% of the area of Edgerton. Edgerton is bordered on the east by Highfields, which later versions of the Settlement Plan merge with Edgerton, on the west by Lindley and on the north by Birkby. Clayton Fields, therefore, lies in effect in between Edgerton and Birkby, and some way from any other district. ii) The Edgerton Conservation Area was formally designated by the Council on 5th January 1977, but the plans showing its extent are dated November 1976. It is a smaller area than Edgerton on the Settlement Plan and more irregular, but it includes the bulk of Clayton Fields (being the area of Clayton Fields to the south of the Clayton Dike) to the east of the Conservation Area. It does not include any of Birkby. Clayton Fields probably amounts to something like 7 or 8% of the Edgerton Conservation Area. iii) The only relevant parish that remained constant in extent for the 20 year period prior to the 1996 application was the Holy Trinity Parish, which comprised an area of Edgerton with Clayton Dike again running east-west along its northern boundary. Holy Trinity Parish also does not include any part of Birkby. A rough estimate would put Clayton Fields as constituting some 4% of the Holy Trinity Parish. The other parishes that I have mentioned were changed in extent in the 20 year period prior to the 1996 application, but included parts of Birkby to the north of Clayton Fields. These parishes were much larger than Holy Trinity Parish, and describing their extent and the precise changes of their boundaries is hardly likely to be a useful exercise.

Introduction to the authorities

[68]A detailed understanding of this area of the law can be obtained most easily from reading Lord Hoffmann’s two important speeches in R v. Oxfordshire County Council, ex parte Sunningwell Parish Council[2000] 1 A.C. 335 (the “Sunningwell case”), and in Oxfordshire County Council v. Oxford City Council & Ors [2006] 2 A.C. 674 (the “Oxfordshire case”). In his reply submissions, Mr Laurence accepted that what Lord Hoffmann said in these judgments about the meaning of locality in the 1965 Act was obiter.[69]In the broadest of outline, classes a and b of the section 22(1) definition of a TVG include land that was, before the 1965 Act, already a TVG by virtue of statutory provision (class a) or by virtue of a customary right to indulge in lawful sports or pastimes (class b). Any customary right was presumed to go back to the accession of Richard I in 1189, and therefore meant that those seeking to establish it could be met by proof that the land could not have been used in the required way since that time. The class c definition was presumably introduced to get over this hurdle and allow citizens to apply to register TVGs on proof of 20 years qualifying user, without the need to rebut any suggestion that in the preceding 755 odd years, the land had not or could not have been so used. It is against this background that what is said in the cases needs to be understood. But I do not intend to deal with them all at length, since they are complex and sometimes contradictory. I shall concentrate my attentions on what has been said in the authorities about the meaning of a locality and a neighbourhood and as to the requirement for it to be “just” to rectify the register under section 14.[70]At the end of the day, the question of what is meant in the section 22(1) definition by the term locality is one of statutory construction. Many views have been expressed, but the point never appears to have been directly decided under the 1965 Act in a case where it was contended that the inhabitants whose evidence supported the claim did not inhabit a single locality, and that the application was invalidated because some other users were inhabitants of another locality. One might be forgiven for thinking that it was absurd that a town green should be ruled out of registration, where it lies between two suburban areas or localities or neighbourhoods, and it is used by the inhabitants of each. But if that turns out to be the correct position as a matter of law and fact, I may be required to reach that conclusion.

The authorities in chronological order

[71]In the middle of the 19th century, there seems to have been a battle as to the way in which local customary rights might be established. Sir George Jessel MR’s first instance and ex tempore decision in Hammerton v. Honey (1876) 24 WR 603 is often cited for the proposition that such rights cannot arise if inhabitants outside the immediate locality used the green as well as those of that immediate locality. It seems that the Master of the Rolls was unaware of or unimpressed with the House of Commons Select Committee report of 11 years before (1865 HC Parliamentary Papers volume III 259), which had suggested that the rule (which he repeated) was based on no very intelligible principle. He said this at page 604:- “Again what must be the usage proved? It must not only be consistent with the custom alleged, but if I may use the expression, not too wide. For instance, if you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody elsein the world who chose danced and played cricket, you have got beyond your custom. I know that there have been some observations made in cases which come to this – that the general legal usage is not destroyed because an occasional illegal usage is shown: but that does not apply where you have evidence of a totally different state of things which does not support a local custom at all. That, I think, is the general law of this case”.[72]It will be observed that Jessel MR was speaking about the establishment of a local custom, and that it was in that context that he held one could prove too much by showing illegal user. I will, I hope, be forgiven for observing that this is a world away from saying what is the meaning of the word “locality” in a statute 90 years later. Indeed, it is not even clear from the report that the evidence that he rejected concerned the place the users of Stockwell Green inhabited, as opposed to the use they made of the green. All the report tells us is that Jessel MR declined to hear the defendants’ evidence, but examined the plaintiffs’ evidence “which he held to be wholly insufficient” to establish the alleged custom to use and enjoy the green as a place of recreation and amusement by long user.[73]Two years later in Cox v. Schoolbred The Times 15th November 1878, Jessel MR seems to have rejected another such claim on the basis that the only two witnesses called for the plaintiff admitted that “people from the neighbouring places [apart from Pangbourne] had also been in the habit of playing upon and using Shooters’-hill”.[74]Mr Laurence placed the greatest reliance on Edwards v. Jenkins [1896] 1 Ch 308, an ex tempore decision of Kekewich J, in which he decided that a custom to exercise a right of recreation on a piece of land could not exist in favour of the inhabitants of three parishes rather than one. The case is not altogether easy to understand as it seems in one place to contemplate that user by the inhabitants of three parishes could establish a custom, but then says it could not. Lord Hoffmann described this case as the “strictest application of the locality rule” (paragraph 11 of the Oxfordshire case). There, Kekewich J said this:- “The only question, therefore, is whether it is properly laid in "all the inhabitants for the time being of the said parish, and of the adjoining or contiguous parishes of Carshalton and Mitcham." It seems to me that though there is no authority exactly deciding that such an allegation is bad, all the cases so directly point that way that I ought to consider the point concluded by authority”. Having referred to the old cases of Fitch v. Rawling (1795) 2 H. Bl. 93, and Bourke v. Davis (1890) 44 Ch D 110 (where Kay J considered that a custom might be confined to the inhabitants of a district), Kekewich J rejected the attempt by the defendants to re-amend to delete the allegation that there had been usage by the inhabitants of the neighbouring parishes. He said at pages 313-4: “But I cannot see how a number of parishes can, without specific evidence, be said to be situated in a particular district so that land in one of the parishes is land in a particular district. I take it that the judges have used the word "district" as meaning some division of the county defined by and known to the law, as a parish is; and that I should be extending their meaning if I were to say that a custom of this kind could be claimed as regards several parishes. Mr. Edwards is right, I think, in his criticism of the other cases cited by Mr. Warmington. I think they do go to this, that where a custom is asserted as regards the inhabitants of a particular parish, then, if the evidence goes to shew that the privilege has been exercised by the inhabitants of other parishes, the proof is inconsistent with the allegation, and the case fails on that ground. But it is to be observed that in all such cases, if the larger custom could have been set up, a custom, that is, for inhabitants of adjoining parishes, then leave to amend ought to have been applied for, and if applied for, would, I should say, have been granted, so as to admit of the larger custom being proved. It seems to follow that the reason why those cases failed was because the evidence was inconsistent with the allegation, and no allegation could be introduced by amendment so as to be sustainable in law. That brings me to the last point. Mr. Edwards has asked for leave to amend. I am extremely unwilling to refuse leave to amend in any case … He now asks for an amendment by striking out the words referring to Carshalton and Mitcham, so as to claim a custom for Beddington only. It is clear to my mind that if the amendment were made the evidence adduced would shew that the custom affects not only the parish of Beddington, but the other parishes, and I should be in precisely the same position as the Master of the Rolls was in the case of Cox v. Schoolbred …, and should have to decide against the defendants, because they had proved a custom larger than they claimed”.[75]In New Windsor Corporation v. Mellor [1975] 1 Ch. 380 (the “New Windsor case”), the Court of Appeal decided that the inhabitants of New Windsor had a customary class b right to use a two-acre piece of land in the middle of New Windsor known as Bachelors’ Acre for sport and recreation. Lord Denning MR said this about the persons in whose favour such a right could exist at pages 386-7:- “To be good, too, a custom must be certain. So, when all sorts of people came and played cricket on a field, it was held that the custom was good if it applied only to the inhabitants of the village and their guests, but not if it applied to all the world at large: see Fitch v. Rawling (1795) 2 Hy.B1. 394. In Edwards v. Jenkins [1896] 1 Ch. 308 Kekewich J. held that a custom for the inhabitants of three parishes to play on a field in one of these parishes was bad: but I do not think this is correct. So long as the locality is certain, that is enough. It is obvious that the custom may virtually deprive the owner of the land of any benefit of it: because he cannot use it in any way so as to hinder the villagers in their pastimes. But, nevertheless, the custom is good. It was so held where villagers proved a custom to erect a maypole and dance around it "and otherwise enjoy any lawful and innocent recreation at any times in the year": see Hall v. Nottingham (1875) 1 Ex D. 1, 2” (emphasis added). Browne LJ agreed with Lord Denning MR. Brightman LJ also agreed but said this about the locality point at page 396:- “I should prefer to reserve my opinion as to whether Edwards v. Jenkins [1896] 1 Ch. 308 is good law. There is some authority for supposing that a customary right cannot normally exist over land in one locality for the benefit of the inhabitants of a different locality. Nevertheless, were it relevant to this appeal, I would feel it difficult to understand why such a right cannot exist over land in one locality for the benefit of the inhabitants of that and one or more other localities, which was in effect the right unsuccessfully claimed in Edwards v. Jenkins. For myself, I express no concluded view”.[76]In the Ministry of Defence case heard on 3rd May 1995, Harman J rectified the register under section 14 of the 1965 Act so as to remove the registration of an area of land between a row of houses occupied by military personnel and the Ministry’s airbase. In his judgment, Harman J said that neither he nor counsel had ever heard of such an application before. The case was decided primarily on the basis that the user by the inhabitants of the Ministry’s houses was not “as of right” as was required, of course, by the definition of class c TVGs. Harman J concluded on this point as follows at pages 936-7:- “Upon that basis there can be no possible claim of right here arising, and the activities are not activities which could give rise to a claim of right sufficient to found a basis that the activity is enough to create a village green. That would be, in my view, the end of the case and it would then be just to rectify the register because, in my view, it would be unfair and burdensome, that is unjust, to a landowner to have an entry made upon a register which hampers and burdens him in the exercise of his rights over his own land when those burdens have no proper existence at all in law. My judgment therefore is that the motion should succeed”. Harman J then dealt with the locality point as rather an afterthought as follows:- “Other points were argued. In particular, Mr Drabble QC argued that it was impossible for a village green to be created by the exercise of rights save on behalf of some recognisable unit of this country -- and when I say recognisable I mean recognisable by the law. Such units have in the past been occasionally boroughs, frequently parishes, both ecclesiastical and civil, and occasionally manors, all of which are entities known to the law, and where there is a defined body of persons capable of exercising the rights or granting the rights. The idea that one can have the creation of a village green for the benefit of an unknown area -- and when I say unknown I mean unknown to the law, not undefined by a boundary upon a plan, but unknown in the sense of unrecognised by the law -- then one has, says Mr Drabble, no precedent for any such claim and no proper basis in theory for making any such assertion. In my belief that also is a correct analysis. I shall not go through the detail of it, but as a secondary reason for my judgment I would assert that it is impossible for the residents of Cadnam Crescent, alternatively of Cadnam Crescent and Milton Road, to be the persons in whose favour there could be created a right for the inhabitants of those two roads in perpetuity, and it seems to me that it would be a total departure from any of the authorities that have been cited. The legal impossibility of such a right is supported in the present case by the fact that the so-called village green is wholly undefined. It has no boundaries even on a plan”.[77]In R. v. Suffolk County Council, ex parte Steed and Steed [1995] 70 P. & C.R. 487 (the “Steed case”), Carnwath J rejected an application for judicial review of Suffolk County Council’s decision to refuse to register a park as a TVG. The main ground relied upon by the judge was that the users had to believe themselves to be exercising a public right; that holding was later overruled in the Sunningwell case. In addition, however, Carnwath J held that the users had to emanate from a locality which was more than a place or geographical area. He said this at page 502:- “… In the present statutory context, I do not think that a piece of land used only by the inhabitants of two or three streets would naturally be regarded as a “town or village green”. The word “locality” in the definition of village green should be interpreted with regard to its context. Such an approach is also consistent with that of Kekewich J. in Edwards v. Jenkins, where the issue was whether a green could exist for the benefit of three parishes. He held that it could not. He referred to the authorities which showed that the use must be that of the inhabitants of a “district”, and continued: “I take it that the judges have used the word “district” as meaning some division of the county defined and known to the law, as a parish is; and that I should be extending their meaning if I were to say that a custom of this kind could be claimed as regards several parishes [emphasis added]. Although the actual decision has been doubted (see New Windsor case,) the words underlined fairly reflect the earlier cases there cited, and indeed the concept of a “local law” as explained in Hammerton v. Honey. The word “locality” in the Act seems intended to bear the same connotation as the word “district” as used in such cases”.[78]These cases represented the state of the law when the Council came to decide the 1996 application. It can readily be understood how, if the Council had had a more complete review of the authorities drawn to their attention (which they did not), they could have reached the conclusion that usage of Clayton Fields by the inhabitants of the districts or localities of Edgerton and Birkby was sufficient to permit registration. The leading authority in 1997 was not the secondary reasoning of Harman J in the Ministry of Defence case, but rather the clear decision of the Court of Appeal in the New Windsor Corporation case, and the persuasive obiter dictum of Brightman J, who concurred in the result with Lord Denning MR. Whilst a different conclusion could have been reached, it would not have been an obvious one for a number of reasons: i) First, the words of the 1965 Act that had to be construed were ““town or village green” means land … on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years”. It is not a natural construction, leaving aside the definition of class b greens immediately before, to read “any locality” as meaning a single locality, rather than “any one or more localities” (see section 6(c) of the Interpretation Act 1978). ii) It is an even less natural construction to read the words “on which the inhabitants of any locality have indulged in such sports and pastimes” as implying that any user by a person from another locality should render it impossible to rely on the user by the inhabitants of the first locality to establish the registration of the TVG. The words simply do not say that. iii) Stripped of the historical baggage, by far the most natural meaning of the words of the definition focus the reader’s attention on the user by the inhabitants of the relevant locality or localities, rather than on any extraneous usage by others. One would need to have read a series of rather unclear authorities in a very specific way to reach the conclusion that locality must be a single legally recognised administrative district, and that registration was made impossible if any significant number of the inhabitants of another locality also used the land in question. Lord Denning’s authoritative dictum suggested first that Kekewich J had been wrong in Edwards v. Jenkins to think that “a custom for the inhabitants of three parishes to play on a field in one of the parishes was bad” and, secondly, that “so long as the locality is certain, that is enough”. iv) I would have thought also that it was, in 1997, rather counter-intuitive to construe the 1965 Act as having been intended by Parliament to rule out of registration a town green lying between two well known localities or districts or suburbs and used by the inhabitants of both of them for recreational purposes.[79]Be that as it may, after 1997, the law was by no means static. A series of hard fought disputes ensued in most of which Mr Laurence or Ms Crail or both have appeared for one side or the other. I will have also to consider in due course whether it is relevant that these cases followed 1997 or whether I should simply assume that the law has always been the same whether or not the courts had enunciated it clearly at that time.[80]The House of Lords delivered their speeches in the Sunningwell case on 24th June 1999. The House decided that “as of right” in section 22(1) reflected the common law concept of nec vi (without force), nec clam (not secretly), nec precario (without permission), but did not require a subjective belief in the existence of the right, so that the decision in Steed was overruled. The House did not decide the locality point, but Lord Hoffmann (with whom the rest of the House agreed) made the following obiter comments about it at pages 357-8:- “This brings me conveniently to Miss Cameron's second point, which was that the evidence of user was too broad. She said that the evidence showed that the glebe was also used by people who were not inhabitants of the village. She relied upon Hammerton v Honey (1876) 24 WR 603, 604, in which Sir George Jessel MR said:
"if you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom."
That was with reference to a claim to a customary right of recreation and amusement, that is to say, a class b green. Class c requires merely proof of user by "the inhabitants of any locality". It does not say user only by the inhabitants of the locality, but I am willing to assume, without deciding, that the user should be similar to that which would have established a custom. In my opinion, however, the findings of fact are sufficient to satisfy this test. It is true that people from outside the village regularly used the footpath. It formed part of a network of Oxfordshire Circular Walks. But there was little evidence of anyone other than villagers using the glebe for games or pastimes. Mr Chapman does record one witness as saying that he had seen strangers enjoying informal recreation there. He summed up the position as follows:
"The evidence of the [parish council] witnesses and of the members of the public who gave evidence was that informal recreation on the glebe as a whole (as opposed to use of the public footpath) was predominantly, although not exclusively, by inhabitants of the village. This made sense because there is nothing about the glebe to attract people from outside the village. The [board] accepted that the village was capable of being a 'locality' . . ."
I think it is sufficient that the land is used predominantly by inhabitants of the village”. It will be observed that Lord Hoffmann’s observations were against the background of a finding that the legal requirements were satisfied on the evidence in that case. "if you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom." "The evidence of the [parish council] witnesses and of the members of the public who gave evidence was that informal recreation on the glebe as a whole (as opposed to use of the public footpath) was predominantly, although not exclusively, by inhabitants of the village. This made sense because there is nothing about the glebe to attract people from outside the village. The [board] accepted that the village was capable of being a 'locality' . . ."[81]In R (Laing Homes Ltd.) v. Buckinghamshire County Council[2003] 3 PLR 60 (the “Laing case”), Sullivan J allowed Laing Homes Ltd.’s application for judicial review of the County Council’s decision to register a TVG, but rejected the argument that the locality needed to be specified in the application form, could not be later amended, and that the Ecclesiastical Parish of Hazlemere did not qualify as a locality. In paragraphs 129-155, Sullivan J adopted a more liberal approach to the identification of a qualifying locality than Mr Laurence has urged on me, and endorsed the Inspector’s approach at paragraph 142 to the effect that “it is clear from the scheme of the [1965 Act] and the Regulations that the question of what is the relevant “locality” (or if appropriate “neighbourhood within a locality”) in the section 22 sense is a matter of fact for the Registration Authority to determine (albeit in accordance with the correct legal principles) in the light of all the evidence, which may indeed contain a number of conflicting views on the topic. There is no requirement in the Form or Regulations for an applicant to commit himself to a legally correct (or any) definition of the “Section 22 locality” (or “neighbourhood”)”. The facts relating to the locality in that case appear to have been somewhat similar to the facts in this case in that the users came from two distinct areas (the Widmer End ward of Hughendon Parish and the Park and Brackley ward of Hazlemere Parish) abutting the intended TVG. The Court approved what was effectively a device that had been adopted at the last minute, namely to get round the awkward definition of ‘locality’ by identifying a single area – the Ecclesiastical Parish of Hazlemere – in which all the users resided. Mr Laurence submitted that the application form did require the section 22(1) locality to be specified, but I do not accept that contention for the reasons given by Sullivan J in the passage to which I have referred. In essence, Part 3 of the form is headed “Particulars of the land to be registered i.e. the land claimed to have become a [TVG]”, and does not ask any specific question about the locality served by the TVG.[82]In R (Cheltenham Builders) v. South Gloucestershire District Council [2004] J.P.L. 975 (the “Cheltenham case”), Sullivan J held that the registration of a TVG was manifestly flawed and could not stand whether under section 14 or by way of judicial review. He reached this conclusion on a number of grounds, even before considering the meaning of locality. But he did decide also that the locality identified had simply been an area arbitrarily edged red on a plan, and that such a delineation was insufficient (paragraphs 41 to 47). He expressed the view in paragraph 73, however, that “[g]iven their wider importance, the unresolved questions [concerning locality] should be determined in a case where the inhabitants do come from an area that is sufficiently cohesive to be described in ordinary language as a locality, but which is not a division of the county known to law”. It seems to me that this might be just such a case. Despite this introduction, Sullivan J dealt in some detail with locality, concluding that:- i) The word locality in section 22(1A) should be construed as having the same meaning in classes a, b and c (paragraph 81). ii) Apart from the doubt expressed by Lord Denning MR in the New Windsor case, the authorities were unanimously to the effect that, at common law, a customary right to indulge in lawful sports and pastimes could exist only for the benefit of some legally recognised administrative division of the county, and that that was the sense in which Parliament used the word locality when defining class b and c village greens in 1965 (paragraph 81). iii) On any other approach, there would be no practical distinction between a locality and a neighbourhood (paragraph 83). This was a point emphasised before me by Mr Laurence. iv) Parliament's belief that the burden placed upon applicants for TVG registration to demonstrate that the users were the inhabitants of any locality was unduly onerous and should be lightened by the introduction of the neighbourhood concept, was entirely in accordance with the (almost) unanimous view expressed in the authorities (paragraph 84). v) A neighbourhood need not be a recognised administrative unit. A neighbourhood must have a sufficient degree of cohesiveness (paragraph 85). vi) A locality in the case of class a and class b village greens means an administrative unit, not one or more administrative units, and locality has the same meaning in subsection (1A). The word “within”, signifies that a “neighbourhood” must be wholly inside a single locality (paragraph 88). vii) When enacting the 2000 Act, Parliament had not intended to create additional obstacles for applicants, but it managed to do so. There was an urgent need for Parliament to revisit this area of the law (paragraph 89).[83]The question of user “as of right” was revisited by the House of Lords in Beresford v. Sunderland City Council [2004] 1 A.C. 889 (the “Beresford case”) which was another case where the House of Lords allowed the appeal so as to permit the registration of a TVG. The detail of the decision is not relevant to what I have to decide, but I should mention in passing Lord Walker’s speech in which he explains what is meant by “as of right”, whilst remarking that it might have been thought that after Lord Hoffmann’s speech in the Sunningwell case, there was little more to be said on the topic.[84]In Humphries v. Rochdale Metropolitan Borough Council unreported 18th June 2004 (the “Rochdale case”), HH Judge Howarth considered a section 14 application. Having found that the TVG ought not have been registered, he commented at paragraph 143 on the question of justice. He said that he could see no evidence that rectification would be in any way unjust to the residents of Castleton, but that by refusing to rectify he would be forcing economic loss on the landowners (who would otherwise be able to develop the land) without any possibility of compensation.[85]The speeches in the Oxfordshire case were delivered on 24th May 2006. Lord Hoffmann’s speech was approved by Lords Walker and Rodger. Lord Hoffmann began with an erudite exposition of the history, in the course of which he said at paragraph 11 that “[in the]New Windsor [case] Lord Denning MR thought that Kekewich J [in Edwards v. Jenkins] had gone too far. "So long as the locality is certain, that is enough." But there is no doubt that the locality rule was the pinch-point through which many claims to customary rights of recreation failed to pass”. The main decision in the Oxfordshire case was that registration of a TVG gave rise to rights for the relevant inhabitants to indulge in lawful sports and pastimes, the landowner retaining the right to use the land in such a way as did not interfere with those rights. In continuing his historical exposition, Lord Hoffmann recorded the ratio decidendi of the Sunningwell case, then observing at paragraph 25 that:
“Once 20 years' user had been established, the only substantial hurdle which the applicant for registration had to overcome was, as it had been in the Victorian cases on customary greens, proof that the user had been by the inhabitants of a defined locality. This requirement was relaxed by the House in Sunningwell [2000] 1 AC 335, 357-358 only to the extent of saying that not all the users needed to be inhabitants of the locality in question. It was sufficient that the land was used "predominantly" by such inhabitants”
. Since the question was not germane to the decision the House had to reach, I am sure that Lord Hoffmann was not intending to take his observation beyond what had been said in the Sunningwell case, nor to give the point any greater authority. It had been obiter in Sunningwell and remained obiter in Oxfordshire. Lord Hoffmann then described the amendment by section 98 of the 2000 Act, and continued in paragraph 27 as follows:- “Any neighbourhood within a locality" is obviously drafted with a deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries. I should say at this point that I cannot agree with Sullivan J in R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] JPL 975 that the neighbourhood must be wholly within a single locality. That would introduce the kind of technicality which the amendment was clearly intended to abolish. The fact that the word "locality" when it first appears in sub-s (1A) must mean a single locality is no reason why the context of "neighbourhood within a locality" should not lead to the conclusion that it means "within a locality or localities".” This dictum too is accepted by Mr Laurence to be obiter.[86]I turn now to deal, as briefly as I can, with the extended litigation in Betterment Properties (Weymouth) Limited v. Dorset County Council (the “Betterment case”). Lightman J’s decision as to procedural matters on 2nd March 2007 ([2007] 2 All ER 1000) was approved by the Court of Appeal (Laws, Rix and Lloyd LJJ) on 6th February 2008 ([2009] 1 WLR 334). The substantive issues were then decided by Morgan J on 23rd November 2010 ([2010] EWHC 3045(Ch)), from whom an appeal is pending. Lightman J said this about the procedure under section 14 at paragraphs 15 and 16:- “15. In my judgment on the face of the statute the court is free to adopt the procedure best calculated to enable a just and fully informed decision to be reached whether “no amendment or a different amendment ought to have been made”, whether it is 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 will have regard to the process adopted by the registration authority or any panel when the amendment of the register under s 13 of the 1965 Act was made and the evidence adduced before it. It will no doubt have in mind that with the passage of time recollections will have dimmed and potential witnesses may have died or ceased to be available. It may (for example) direct that evidence (in particular if unchallenged) adduced before the registration authority or any panel shall stand as evidence and any finding by it shall stand:(a) as a finding of fact at the hearing before the court;(b) as evidence; or(c) as a finding of fact in the absence of evidence to the contrary; and in deciding on the admissibility of evidence the court will no doubt bear in mind that no amendment shall be rectified unless it is just to do so and that it may be unjust to order rectification on the basis of new evidence eg which cannot now be challenged but could have been when registration took place. 16. This approach accords with what Parliament must have had in mind in conferring the jurisdiction to rectify. First it is no trivial matter for a public or private landowner to have land registered as a town or village green. If the entry in the register cannot be corrected under s 14, registration can effect (potentially catastrophic) blight on user and development. Section 16 of the 2006 Act when it comes into force will authorise the Secretary of State in the circumstances and on the conditions there set out to direct deregistration and accordingly where the provisions of that section can be invoked the blight may no longer be permanent, but the consequences of registration remain serious. Second the procedure on the application for registration is intended to be relatively simple and informal. There is no provision for the service of subpoenas or for orders for disclosure. Relevant evidence may only emerge later. It may be difficult (if not impossible) at a later date to identify the exact nature and limits (let alone the credibility) of the evidence adduced in support of (or against) the application or of the registration authority's conclusions as to the credibility or relevance of any particular evidence. Because of the absence (for any of a number of reasons) of objection to the application, it may have been appropriate for the Applicant for registration to limit the evidence he adduced or the relevant evidence may have been unavailable. The problem is complicated when (as in this case) there is a change in ownership of the servient land. The new owner is likely to be at a disadvantage knowing the earlier course of events. To limit the evidence available in the High Court to the evidence adduced before the registration authority is calculated to raise serious practical problems, give rise to unfairness and to emasculate the jurisdiction. Parliament must surely have preferred to vest in the court the power to decide whether the admission of any particular evidence was calculated to promote the achievement of justice”.[87]Lightman J’s dicta were specifically approved by Lloyd LJ in the Court of Appeal at paragraphs 27-30.[88]Morgan J’s main decision in the Betterment case was that the user relied on was neither peaceable nor “as of right”. He did not decide the locality issue, though he mentioned the competing arguments at paragraphs 152 to 158. Lloyd LJ has given permission to appeal Morgan J’s decision on the peaceable user point, but has refused permission to appeal on paper on the justice issue. It is understood that the application may be renewed in due course orally.[89]On the question of justice, Morgan J alluded to the powerful case for rectifying the register on the ground that the inhabitants of Wyke Regis would be entitled to enjoy rights over the land which should not have been conferred on them (paragraph 161), and then turned at paragraph 172 to the position of Betterment as the purchaser of the land after it had been registered as a TVG. The position of the landowner in that case seems to have been similar to the position of Paddico in this case. Morgan J said this:- “Having reviewed the evidence as to the position of the landowners, and in particular Betterment, my conclusions are as follows. The previous landowners could show that they would have been at a substantial disadvantage by reason of the land being registered as a green as compared to the situation they would have been in if the land had not been so registered. At the present time, Betterment can also show that it will be at a substantial disadvantage by reason of the registration as compared with the case where the land was not registered as a green. That difference is represented by a substantial amount in money terms. When Betterment bought the land, it paid more than the land was worth if the land were to remain registered as a green; it paid less than the value of the land if the registration were to be rectified. That is precisely what one would expect with a purchase of land where its value is subject to uncertainty as to a future event. Mr Petchey argued that Betterment had made a gamble. If the gamble were to pay off and the registration were to be rectified then, he said, Betterment would have a windfall, namely, the enhancement in value attributable to the removal of the registration. If, on the other hand, the gamble did not pay off and the registration continued then, he said, Betterment had taken that risk with its eyes open. I do not regard that submission, describing Betterment as having made a gamble, as any reliable guide to where the justice of the case lies as regards rectification. I regard it as more accurate to come to the conclusion that any landowner including Betterment, will be significantly worse off if the registration continues as compared with the alternative of the registration being rectified. I would therefore reach the conclusion that the continuation of a registration which ought not to have been made in the first instance will cause substantial harm to any landowner, including in this case” (emphasis added).[90]Finally, before reaching the conclusion that it was just to rectify the register, Morgan J said this at paragraphs 184-191:- “184. It is also right, when considering the justice of the case, as between the landowners and Mr and Mrs Thompson, to record that the landowners were not in any way responsible for Mr and Mrs Thompson's state of mind, whatever it was, when they acquired Markham House. The landowners did not make any representation or promise as to the future use of the land and, indeed, nobody asked the landowners for any information on that score.185. Mr Petchey submits that it is potentially unjust to people in the local area who value the use of the registered green to have the registration cancelled as a result of these court proceedings when the essential facts were gone into by the panel in 2000/2001 and where, he says, the different decision of this court turns upon detailed findings of fact and the weight to be given to disputed evidence. He also submits that it is possible that the court is in a less good position today to assess the evidence, as compared with the panel which was considering the evidence nearer to the time of the relevant events.186. The essential difference between my decision and that of the panel relates to the findings I have made as to the user being contentious for a period of time. In reaching my decision, I have relied upon essentially the same material as was before the panel. …187. As explained by Lightman J, and by the Court of Appeal, when determining the preliminary issues raised in this litigation, an application under s 14 is not a review by way of an appeal against the panel's decision. Section 14 contemplates there can be a full review of the legal principles and of the underlying evidence. That is the process which has been undertaken in this case. In these circumstances, I hold that s 14 requires me to give effect to my findings as to contentious user, unless there is some other extraneous matter which makes it unjust for me to do so. Mr Petchey suggested that the passage of ten years since the hearing before the panel might have made it more difficult for this court to come to its conclusions, as compared with the position in 2000/2001. As I have relied upon essentially the same material as that which was before the panel, I do not think there is anything in that point in this case.188. Mr Petchey submitted that the court should be more reluctant to rectify the register when the register entry has remained in existence for a period of some 9½ years, from around June 2001 to the present time. However, during those 9½ years, residents in the local area have had the benefit of the registration which, on my findings, they should not have had. I do not see why the fact that the local residents have in the past, by reason of the registration, enjoyed rights which they should not have had, produces the result that they should now be able to enjoy such rights in perpetuity.189. Betterment has referred to all the events which occurred in the intervening 9 ½ years and has submitted that time has not been wasted in getting the case to the point it has now reached. It is no doubt the case that the matter could have been progressed more quickly at certain stages. I get the sense that Betterment has not treated this litigation as one which required an urgent resolution. After all, Betterment still does not have any planning permission for development for any of its land. However, any disadvantage suffered by reason of delay since 2001 appears to me to have been felt by Betterment (with reference to any responsibilities they may have had to members of the public being on their land) rather than by the residents of the local area, who have been able to enjoy the land without interference from the landowner. In the end, I do not see that the mere passage of time is material, one way or the other, to the issue of the justice of rectifying the register.190. I fully understand that many residents of the local area place a very high value on their ability to use the land for walking and other recreations. Further, many of the residents of the local area regard the registration as a worthwhile curb on the development of the registered land, and of the adjoining land to the west. I fully understand that those persons will be very disappointed in those respects if the land ceases to be registered as a town or village green.191. The question of whether it is just to order rectification of the register involves a balancing exercise taking into account all proper points that can be made on behalf of the landowners and all proper points that can be made on behalf of the inhabitants of Wyke Regis. Having considered in detail all of the matters which Mr Petchey has asked me to consider, I come back to what I earlier described as the prima facie position. If rectification is ordered the result will be that the landowners will be free from burdens which should not have been placed upon them and the inhabitants of Wyke Regis will be denied, in the future, rights which they have enjoyed in the past, but which they should never have had. My decision is that this prima facie position is indeed the just position” (emphasis added).[91]I have set out Morgan J’s reasoning on the justice point at length, because many of the factors are similar in this case.[92]Regina (Lewis) v. Redcar and Cleveland Borough Council (No 2) [2010] 2 A.C. 70 was another case in which the Supreme Court allowed an appeal to permit the registration of a TVG. The issues were, however, very different from those in this case. Mr Laurence relied on the case for the proposition that, after registration, the landowner retained the right to use the land as it had done before – in that case as a golf course – so that the rights of the inhabitants and of the landowner could in such a case co-exist (see Lord Hope at paragraphs 70-71).[93]In R (on the application of Oxfordshire and Buckinghamshire Mental Health NHS Foundation Trust and another) v. Oxfordshire County Council (Deluce and others interested parties) [2010] LGR 631 (the “Warneford Meadow case”), HH Judge Waksman Q.C. considered the dicta in the Sunningwell case that I have set out above, and concluded that what he called the “predominance test” no longer applied in relation to “neighbourhood within any locality” under section 22(1A). The Judge said that at paragraphs 67 to 71:- “67. There was some debate before me whether this enunciation of the Predominance Test was part of the ratio of Sunningwell or not. This is because it was based on an assumption that the user for class (c) rights should be the same as the user for class (b) customary rights. For present purposes however I shall treat it as if it is part of the ratio. The other members of the House of Lords agreed with Lord Hoffmann and this part of his judgment forms part of the headnote. Moreover it was regarded as such by Carnwath LJ in the Court of Appeal in Oxfordshire (supra) at [2006] Ch 43 at paras 63 and 64 and indeed by Lord Hoffmann himself in that case at [2006] 2 AC 674 at para 25.68. The Authority submits that this further and implicit requirement of s 22 in respect of class (c) rights must necessarily have been carried through into its amended successor, s 22(1A). I disagree for the reasons given below.69. First, the provision had changed in two material respects. The area from which users must come now includes a “neighbourhood” as well as a locality. On any view that makes qualification much easier because it was accepted that a locality had to be some form of administrative unit, like a town or parish or ward. Neighbourhood is on any view a more fluid concept and connotes an area that may be much smaller than a locality. But in addition the requirement is now not that there is land on which “the inhabitants of any locality . . . have indulged . . .” but rather land on which “a significant number of the inhabitants of any locality . . . have indulged”. It is said that this latter change does no more than state what was obvious anyway – that there needed at least to be a significant number from the locality, rather than just a handful. But without more this need not follow. It could equally indicate a change from a requirement that the users predominantly come from the locality (or now neighbourhood) to a requirement that the users include a significant number from it so as to establish a clear link between the locality (or now neighbourhood) and proposed TVG even if such people do not comprise most of the users. That overall, the requirements were relaxed is supported by para 65 of the judgment of Carnwath LJ in Oxfordshire (supra) where he said that the 2000 Act introduced:
“the new concept of 'neighbourhood within a locality', and required no more than a 'significant' number of local users. Whatever precisely that expression means (which happily is one of the few issues not before us), it can only have the effect of weakening still further the links with the traditional tests of customary law.” 70. Thus there is no reason now to assume that the user required for class (c) rights should be the same as for class (b) rights. 71. On that footing, I reject the notion that the Predominance Test has been carried forward into s 22(1A). That provision is clear in its terms and provided that a significant number of the inhabitants of the locality or neighbourhood are among the users it matters not that many or even most come from elsewhere”. “the new concept of 'neighbourhood within a locality', and required no more than a 'significant' number of local users. Whatever precisely that expression means (which happily is one of the few issues not before us), it can only have the effect of weakening still further the links with the traditional tests of customary law.”
[94]On the footing that the provision was ambiguous, Judge Waksman then looked at Hansard when the 2000 Act was introduced and recorded the following at paragraph 74:- “On 16 November 2000 Baroness Farrington introduced the Government amendment which became s 22(1A). She stated at columns 513-514 that the Government understood the difficulties mentioned by Baroness Miller and the amendment directly addressed two of her concerns:
“It makes it clear that qualifying use must be by a significant number of people from a particular locality or neighbourhood. That removes the need for Applicants to demonstrate that use is predominantly by people from the locality and means that use by people from outside that locality will no longer have to be taken into account by registration authorities. It will be sufficient for a significant number of local people to use the site.” “It makes it clear that qualifying use must be by a significant number of people from a particular locality or neighbourhood. That removes the need for Applicants to demonstrate that use is predominantly by people from the locality and means that use by people from outside that locality will no longer have to be taken into account by registration authorities. It will be sufficient for a significant number of local people to use the site.”
[95]In Leeds Group PLC v. Leeds City Council [2010] EWCA Civ 1438 (the “Leeds case”), the Court of Appeal (Tomlinson LJ dissenting) held that the term “neighbourhood within any locality” in section 22(1A) can mean a singular neighbourhood or more than one neighbourhood. Sullivan LJ mentioned the absurdity of the situation in a case such as this where a TVG between two neighbourhoods could not be registered. He said this at paragraphs 26-27:- “26. … Like the judge, I can see no logical reason why “any neighbourhood” in sub-s 22(1A) should not include two or more neighbourhoods. There is nothing in the language of the subsection to suggest that “any neighbourhood” must mean only one neighbourhood. The fact that Parliament chose to retain the “Common Law baggage” associated with “locality” in limb (i) of the subsection is not a reason to infer that it intended that all aspects of the common law locality rule were to be grafted onto the new concept of “neighbourhood within a locality” in limb (ii). Lord Hoffmann's observations in para 27 of the Oxfordshire case were obiter, but they are, at the very least, persuasive. Lord Rodger and Lord Walker agreed with his speech (paras 114 and 124). If the amendment to s 22(1) was intended to abolish technicalities, and was obviously drafted with a deliberate imprecision to that end, it would be contrary to Parliament's intention to confine “any neighbourhood within a locality” to only one neighbourhood within a locality. By its very nature a locality is likely to contain a number of neighbourhoods. Mr Laurence submitted that this approach to sub-s 22(1A) would open the door to registration too wide, to the disadvantage of landowners. However, Parliament while abolishing technicalities in the limb (ii) of Class C, also made it clear that in respect of both limbs only user by a significant number of the inhabitants of the locality, neighbourhood or neighbourhoods, as the case may be, will suffice. 27. When considering whether there is a contrary intention for the purposes of s 6(c) [of the Interpretation Act 1978] it is helpful to stand back from the language of the subsection, and to look at the factual context in which it was enacted. In para 13.37 of his Report the Inspector said:
“13.37 Furthermore common sense suggests to me that there must be numerous instances within built-up areas where the very existence of an open space of any size will tend to create the impression of distinct neighbourhoods (even if within the same locality) on either side – precisely because the open space between them is itself not criss-crossed by connecting built-up streets. In my judgment it would be an absurdity, and a manifest distortion of Parliament's intentions, to hold that a town or village green can only validly be registered in such circumstances where it can be shown that all, or the predominant bulk, of the users came from the 'neighbourhood' on one side of the open space, and not the other.”
The judge found the Inspector's views on this issue “particularly convincing”; so do I. Take the factual circumstances of this case by way of example. Banksfield is located to the west of Yeadon Banks, The Haws to the east. The two neighbourhoods are separate because they are physically separated in part by Yeadon Banks, in part by a former dye works and in part by a road, Otley Lane. Mr Laurence accepts that if he is right, user by a significant number of the inhabitants of either Banksfield or The Haws (ie the inhabitants to one side or the other of Yeadon Banks) would suffice for the purposes of registration under limb (ii) of Class C, but user by a significant number of the inhabitants of both neighbourhoods on both sides precludes registration. Such an outcome is fairly described as an absurdity. If Parliament's intention in enacting the 2000 Act was to remove unnecessary technical obstacles to the registration of land that was performing a valuable recreational function for local inhabitants, it would be a manifest distortion of its intentions to hold that, if the evidence demonstrates that that recreational function is valuable for two (or more) neighbourhoods rather than merely one neighbourhood, that is a bar to registration” (emphasis added). “13.37 Furthermore common sense suggests to me that there must be numerous instances within built-up areas where the very existence of an open space of any size will tend to create the impression of distinct neighbourhoods (even if within the same locality) on either side – precisely because the open space between them is itself not criss-crossed by connecting built-up streets. In my judgment it would be an absurdity, and a manifest distortion of Parliament's intentions, to hold that a town or village green can only validly be registered in such circumstances where it can be shown that all, or the predominant bulk, of the users came from the 'neighbourhood' on one side of the open space, and not the other.”[96]Arden LJ agreed in the following terms at paragraphs 56-57:- “56. There is no necessary link between a locality (an administrative area) and a neighbourhood. A neighbourhood is not a sub-division of a locality. This may be a further point that led Lord Hoffmann to his conclusion that it is unlikely that Parliament intended a neighbourhood to be wholly within a single locality. By parity of reasoning with the various points that Lord Hoffmann made, since it is common knowledge that many villages and towns have more than one neighbourhood, it is in my judgment unlikely without some clear indication to that effect that Parliament intended that no Class C TVG should be registered if it was used by a significant number of inhabitants from more than one neighbourhood. The landowner is protected by the other requirements of s 22(1A), particularly the requirement for use to be continuing. 57. The statutory presumption in s 6 of the Interpretation Act 1978 is that in any Act, unless the contrary intention appears, the singular includes the plural. This applies to the words in s 22(1A) but the context is a sufficient contrary intention for the word “locality” where it first appears in that sub-section to be confined to the singular for the reasons given in Lord Hoffmann's speech in the Oxfordshire case. It is unusual for the same word to be used in different sense in the same enactment but in this case Lord Hoffmann has powerfully suggested that “a locality” does not mean any single locality when the word “locality” is next used in sub-s (1A). Is the word “neighbourhood” in s 22(1A) to be interpreted as “any single neighbourhood” like the word “any locality” when in first appears? In my judgment, and in respectful disagreement with Tomlinson LJ, for the reasons given above and those given by Sullivan LJ there is no such contrary intention in s 22(1A)” (emphasis added).

Summary of the present legal position

[97]Ultimately, having considered the main cases on the topic, which I have sought to summarise above, it seems to me that the following propositions can be drawn from them:- i) A “locality” is to be understood in all the legislation (before and after the amendment) as meaning an administrative district or an area within legally significant boundaries (Lord Hoffmann at paragraph 27 in the Oxfordshire case; Sullivan J at paragraphs 133-4 in the Laing case; Sullivan J at paragraph 81 in the Cheltenham case; Harman J at page 937 in the Ministry of Defence case; Carnwath J at page 502 in the Steed case). ii) To qualify under the original section 22(1) or under the first limb of section 22(1A), the land to be registered as a TVG must be used by the inhabitants of a single “locality” (Lord Hoffmann at paragraph 25 in the Oxfordshire case; Sullivan J at paragraph 81 in the Cheltenham case; Arden LJ at paragraph 57 of the Leeds case). iii) In section 22(1A), the term “neighbourhood” is to be understood as being a cohesive area (Sullivan J at paragraph 85 in the Cheltenham case), and must be capable of meaningful description in some way (paragraph 79 of Judge Waksman in the “Warneford Meadow” case). iv) In section 22(1A), the term “locality” within the term “neighbourhood within any locality” can mean either a locality or localities (Lord Hoffmann at paragraph 27 of the Oxfordshire case; Arden LJ at paragraph 57 in the Leeds case). v) In section 22(1A), the term “neighbourhood within any locality” can mean either a neighbourhood or neighbourhoods (Sullivan LJ at paragraph 26 and Arden LJ at paragraphs 56-7 in the Leeds case), and the neighbourhoods concerned do not need to be located within a single locality (Lord Hoffmann at paragraph 27 in the Oxfordshire case; Arden LJ at paragraph 56 in the Leeds case). vi) In the original class c definition in section 22(1) (but not in the new class c definition in section 22(1A) in which the predominance test has been replaced by the requirement for usage by “a significant number” of inhabitants), not all the users of the TVG need to be inhabitants of the locality in question, but it is sufficient that the land is used “predominantly” by such inhabitants (Lord Hoffmann at pages 357-8 of the Sunningwell case, and at paragraph 25 in the Oxfordshire case; Sullivan LJ at paragraphs 24-26 of the Leeds case; and Judge Waksman at paragraphs 69-71 in the Warneford Meadow case).[98]It is important in resolving this case to know what is meant by the word “predominantly”, as it was used by Lord Hoffmann in the Sunningwell and Oxfordshire cases. I have assumed that the word carries its Oxford English Dictionary definition, described as being in later use, of: “primarily, largely, chiefly, for the most part”.[99]In the early part of this judgment, I have gone into the details of the material that was before the Committee in 1997, because I was concerned to try to understand, if that were possible, how it reached the decision it did. On analysis, however, it is not easy to see the Committee’s train of thought. What seems most likely to have happened is that Mr Manley’s submission as to the technical meaning of “locality” was not considered very thoroughly by the Council, probably on the basis submitted to me by Mr Hardy, namely that the members of the Committee knew precisely where Edgerton and Birkby were, recognised them as what any normal lay person would regard as a locality and therefore concluded that the requirements of the 1965 Act were satisfied. This seems to have been the most likely course of events, because no other localities, save for Edgerton and Birkby had been suggested to the Committee, and no map or plan showing any boundaries for Edgerton or Birkby were ever shown to the Committee. And, of course, it had not been suggested by the Defendants to the Committee that either the Edgerton Conservation Area or Holy Trinity Parish should be regarded as the appropriate locality for the purpose of satisfying section 22(1).[100]I should emphasise that the reasoning of the Committee is not strictly relevant to the decision I have to reach, since, as was made clear in the Betterment case, this is in no sense an appeal from the Council’s decision. Nonetheless, it is useful to understand what the Council decided, if that is possible, since I am to determine whether the Land ought or ought not to have been registered as a TVG in 1997.[101]In my judgment, on the materials available to the Committee in 1997, it was not justified in making the registration for one simple reason, namely the proper legal meaning of the words “any locality” in the class c definition in section 22(1). Despite the views that I expressed earlier as to the meaning of the term “locality” viewed in 1997, it has, I think, now been accepted at too high a level for me to gainsay that the term “any locality” is singular in the class c definition:
“on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years”
. I am bound to say that I would have construed the words “any locality” in the class c definition, in the original section 22(1) and in both limbs of section 22(1A), had I been starting with a clean sheet of paper, as meaning “locality or localities” in the way that Lord Denning MR and Brightman J suggested in the New Windsor case. I would also observe once again that the law was far less clear when, in 1997, the Committee made its determination. But since the matter has now been clarified, albeit obiter, at the highest level, I do not regard it as open to me to hold that “any locality” can be plural in section 22(1) or in the first limb of section 22(1A).[102]In these circumstances, the Committee must have thought that the user established was by inhabitants of the two suburban areas that they knew familiarly as Edgerton and Birkby – after all that is what was contended forcefully before them. But if that is what they did think, it was not good enough to satisfy the legal requirements. It is true that the legal requirements were nowhere properly stated in the 1965 Act or in the 1969 Regulations (or even in the 2007 Regulations), but that cannot provide an escape. In short, even if each of Edgerton and Birkby were properly to be regarded as localities (an issue with which I will deal under the next heading), the fact that it was demonstrated that there was a reasonably even spread of users over the two localities meant – I would say absurdly, echoing the dicta of Sullivan LJ in the Leeds case – that the TVG ought not to have been registered on the material before the Committee in 1997.[103]I have reached this conclusion despite my ready acknowledgement that the local councillors were likely to know very much more about the Huddersfield area than I could ever know, and were therefore likely to be in a much stronger position than I to reach a reliable conclusion on this issue.[104]This issue raises two sub-issues:- i) First, whether the registration could have been supported on any other grounds when the 1996 application was made? ii) Secondly whether, if the application had been made at a later stage, it could have been successful?[105]Messrs Magee and Hardy have made every effort to identify areas which could be shown to have satisfied the statutory tests. But they have been faced with two problems: first, the location of the users of Clayton Fields who made statutory declarations in 1997, and secondly, the fact that Clayton Fields lies between two fairly clearly understood local areas, namely Edgerton and Birkby. These problems have combined to make their task an extremely difficult one. Whichever way they approached the problem, they ran into difficulties. It will be immediately apparent that I was unashamedly sympathetic to their predicament, since it seemed and seems to me that Clayton Fields is pre-eminently the kind of TVG which the legislation would have expected to be registrable. Nonetheless, I am bound by the wealth of authority that I have sought to summarise above, and can only decide the case according to the law and the evidence.[106]On the evidence, it seems to me that the registration could not have been supported on other grounds when the 1996 application was made. I say this because the 1965 Act is to be construed in the inflexible way that I have mentioned above, and, whichever way one looks at the areas involved, on the evidence available at that time, the Defendants would have fallen foul of one or other of these rules:- i) It is hard, I am afraid to describe the districts of Edgerton and Birkby as localities within the definition, because, on the evidence, however ancient and well understood locally they are as areas of Huddersfield, they cannot really be described as either “administrative districts” or “areas within legally significant boundaries”. The Council has said that they are of no legal significance. And even if they could each be described as a locality, they are not a single locality, but two localities. On the law as it has now been held to be, demonstrating user by the residents of two localities did not allow the Land to qualify for registration in 1997. As the figures I have set out above show, the residents who made statutory declarations in 1997 were pretty evenly split between Edgerton and Birkby, with a few more in Edgerton than in Birkby. With the best will in the world, the users with whom the Committee were confronted could not properly be described as having been predominantly in either Edgerton or Birkby. I should say, in passing, that I was not impressed with Mr Laurence’s suggestion that the distribution of residents was inadequately spread over either Edgerton or Birkby. Not surprisingly, the majority of the users making declarations lived closest to Clayton Fields with a scattering of users further away. That is precisely what one would expect and would not, in my judgment, be an appropriate reason for rejecting registration. None of the authorities drives me to such an illogical and unfair conclusion. Nonetheless, as I have said, I cannot hold that registration could have been justified in 1997 on the basis of the Edgerton and Birkby districts shown on the Settlement Plan. ii) The Edgerton Conservation Area could be regarded as a locality. It was designated under section 277 of the Town and Country Planning Act 1971, and therefore had legally significant boundaries, but it was not formally designated for the whole 20 years prior to the 1996 application (albeit that it was only a few weeks short of that period). But more importantly, the users who made declarations in 1997 were not predominantly the inhabitants of the Conservation Area, rather they too were evenly split between it and parts of Birkby outside the Conservation Area. What has been described as the predominance test simply could not have been passed. iii) The parishes also suffer from the same problems. Clayton Fields lies between two parishes, and the residents are evenly split. Moreover, even though the parishes can be regarded as localities for the purposes of section 22(1), it would not have been possible for the Defendants to have passed the predominance test in respect of any one parish. The Holy Trinity Parish comes the closest, but I cannot find that 36 out of 68 users amounts to a predominant number, using the definition I have mentioned of “primarily, largely, chiefly, for the most part”.[107]I am therefore forced to the reluctant conclusion that, because of the technical meaning of locality in the section 22(1) definition in the 1965 Act, the Defendants could not have satisfied the requirements for the registration of Clayton Fields as a TVG at the time of the 1996 application on the evidence then available. It has not escaped my attention that, if the Defendants had been advised by perspicacious lawyers, they might simply have obtained and deployed declarations from, for example, persons residing only in the Holy Trinity Parish. Had they done so, they could easily have succeeded in obtaining a valid registration. But they did not. And moreover, having obtained declarations from Birkby residents, and even knowing that users came from Birkby as well as Edgerton as was only to be expected, it would have been incumbent upon them to mention that fact on the application form, so the point is again of no assistance to the Defendants.[108]I turn then to the question of whether an application made at a later stage could have been successful. This is a rather more complex question because it raises questions about the appropriate approach to such a question.[109]Mr Laurence has made the following submissions on this point, which he contends make it clear that no subsequent application for registration could have been successful:- i) First, he submitted that any user after the registration was not “as of right” within the section 22(1) definition, because it was not undertaken “nec precario” (i.e. without consent), but lawfully pursuant to the TVG registration, albeit that that registration should not have been made. Thus, argues Mr Laurence, no 20 year period of qualifying user could ever have been shown after the registration, and the court should not determine that registration could have been obtained at a later stage. This argument is bolstered by the submission that the 1996 application was prompted by George Haigh Ltd.’s attempts to obtain a revised planning permission in 1996. Thus, it may be assumed that, if registration had been refused, George Haigh Ltd. would have taken steps to protect its position to prevent any qualifying user taking place thereafter, for example by erecting appropriate signs indicating that user was with its permission, but that such permission could be withdrawn at any time (see paragraph 72 of Lord Walker’s speech in the Beresford case). ii) Secondly, Mr Laurence submits that, even after section 22(1A) was introduced by the 2000 Act, the Defendants could not have satisfied the requirement for user by a significant number of inhabitants of any neighbourhood within any locality. In this regard he relies on a number of points, but primarily contends that none of the areas relied upon satisfies the requirements of section 22(1A), that the distribution of inhabitants is inadequate, and that the new legislation is not retrospective so can only apply to user for the 20 years after it came into force on 30th January 2001. I understand this latter point may soon be raised in the Court of Appeal in the Leeds case.[110]Mr Laurence’s point on user after registration not being “as of right” is undoubtedly correct as a matter of law. As it seems to me, however, if that were sufficient automatically to prevent opposition to an application for rectification by removal of a registration, it would nullify the effect of section 14. Thus whilst the point is good and must be taken into account, it must be considered again when one comes to consider the justice of the case under the next heading.[111]As for the second point, I am less convinced. It seems to me that, since the predominance test has gone under section 22(1A), the Defendants could at least have shown after the new law came into being that a significant number of the inhabitants of the Holy Trinity Parish as both a qualifying locality and a qualifying neighbourhood, or of Edgerton and of Birkby as neighbourhoods within the larger locality of Huddersfield or Kirklees, had undertaken qualifying user. I do not accept Mr Laurence’s spread or distribution point, so it seems to me that, had an application been made after the 2000 Act had come into force, and had the “as of right” point not been available, registration would have been possible.[112]I put it to Mr Laurence that the question of justice under the 1965 Act must be at large, so that the court should be at liberty to take into account any matter that it thinks relevant to the rectification of the register. Whilst Mr Laurence cautiously accepted that proposition, his main submission was that, if the Land ought not to have been registered in the first place, and its registration was not supportable on any alternative basis, it would normally be just to rectify the register. In this regard, of course, he prayed in aid the judgments of Morgan J in the Betterment case (paragraph 187 in particular), and of Judge Howarth in the Rochdale case.[113]In this case, it seems to me that it would not necessarily be just to rectify the register if the only reason why a new registration could not, had the original registration not been made, have been obtained after the original registration, was that the applicants could not show user “as of right” as a direct result of the mistaken registration itself. But here there is an additional factor, namely the clear evidence that George Haigh Ltd. was not intending at the hearing of the 1996 application or thereafter, to acquiesce in the continued user of Clayton Fields for recreational purposes. That means that there is no reasonable probability that the Defendants could in fact have legitimately secured a registration at all.[114]My reasoning is as follows: first, the original application ought, for the reasons I have given, to have been refused. Secondly, had the original application been refused, it may reasonably be supposed that George Haigh Ltd. would have taken steps to protect its position and to prevent a successful new application being made whether under the original legislation or, later, under the amended legislation. It would, in all probability, have pursued its application for planning permission or sought to implement its 1967 planning consent. Either way, it would have been likely to have taken steps to ensure that local residents knew it was not accepting that there was any entitlement to register Clayton Fields as a TVG. It could have put up signs of the kind suggested by Lord Walker or taken a range of other measures, like fencing, designed to achieve the same effect. Also to be weighed in the balance is the fact, as I have explained earlier in this judgment, that it has only become clear that the Committee was legally wrong in its decision since the 1996 application was heard. This may not be a very strong factor, since the law, once expressed in a decision, is assumed always to have been as later expressed, but I think it is still a factor which reduces somewhat the weight of the fact that registration ought not to have been granted in the first place.[115]In this state of affairs, I need to consider what other factors are or could be relevant to the question of the justice of the claim for rectification. One matter that has, as we have seen, been repeatedly mentioned in the cases is the question of delay. I note immediately, that perhaps surprisingly, there is no limitation period applicable to applications under section 14.[116]Mr Laurence argued that delay could, or at least should, not be a factor militating against the justice of rectification. He argued, as had Judge Howarth in the Rochdale case and Morgan J in the Betterment case, that the residents had had a benefit by being allowed to use Clayton Fields for recreation for 14 years longer than they ought to have done. The justice, said Mr Laurence, lies firmly in favour of restoring to the landowner that of which he has been wrongly deprived.[117]In my judgment, these factors are not quite as straightforward as Paddico would suggest. It is clear that Paddico(a) has taken a risk in purchasing Clayton Fields knowing of the registration and knowing that it would have to litigate to reverse the registration, and(b) paid less than the developable value of the Land, only being obliged to pay a proportion of the profits to George Haigh Ltd. I accept that these factors do not specifically count against Paddico in the balance of justice, but they can be taken into account. More important, however, would be any steps taken in reliance on the wrong registration (c.f. section 19(5) of the 2000 Act providing that a register may not be corrected if the authority considers that, by reason of reliance reasonably placed on the register by any person, it would “in all the circumstances be unfair to do so”). Such reliance was relied on as a factor in the Betterment case, where residents had bought properties on the faith of the registration (see Morgan J at paragraph 171ff). In this case, there is no such evidence; there is simply the clearly expressed and heartfelt plea by the users of Clayton Fields to be allowed to continue to use it, having now done so for many years without interruption, and since 1997 pursuant to the registration. Since 1997, the registration has itself created a reasonable expectation in the users that they would be allowed to do so for the foreseeable future; though that is tempered somewhat by the fact George Haigh Ltd. issued the 1997 proceedings challenging the registration very shortly afterwards.[118]For my part, I do not think one can just say that the residents have had the benefit of using the land for years longer than they should have done. Delay in challenging the registration, which has occurred in this case does weigh against rectification. It is perhaps unlikely, however, to be conclusive.[119]Here I have to balance all the factors together. In my judgment, the fact that the registration was not justified in 1997, and would, if it had not been allowed in 1997, have been very unlikely to have ever been obtained is a very strong, but not conclusive, factor in favour of the justice of rectification. It is supported by the fact that, if the register is not rectified, the effect will be to deprive the landowner of its lawful right to develop the Land without compensation. The delay that George Haigh Ltd., and then Paddico, have been guilty of in bringing this application to a hearing (altogether some 14 years) is a significant factor against rectification. But there is little other prejudice that has been demonstrated by the residents. Indeed, it seems to me that I can take into account that the planning permission obtained and sought by the landowner requires that part of the Land is made available for public recreational space.[120]Balancing all these factors together, justice demands that I should order rectification. Clayton Fields was registered as TVG when it ought not to have been. In my judgment, the balance comes down fairly clearly in favour of it being just to order rectification.

Conclusion

[121]I should not leave this case without expressing my disquiet at the outcome. It is caused almost entirely by the fortuity of Clayton Fields lying geographically between districts, neighbourhoods, parishes and localities, and by the unsatisfactory state of the law prior to the 2000 Act. I am by no means sure that the strict interpretation of the word locality in section 22(1) of the 1965 Act was mandated by the older cases, but that construction has now been reiterated too often and at too high a level for it easily to be changed. It may be hoped that the hangover of cases governed by the old law will be few and far between, and that the more liberal and intelligible rules contained in the 2000 Act and ultimately in the 2006 Act will hold sway for the future.[122]I have concluded, therefore, that the register should be rectified so as to remove the 1997 registration of Clayton Fields as a TVG. I will end this judgment by expressing the hope that the residents of Edgerton and Birkby will be allowed to continue to use Clayton Fields pending its redevelopment, and that, as part of the redevelopment, local residents will be allowed a reasonable area for lawful recreational pursuits, sports and pastimes. A sensitive development should be able to achieve that objective. And in that way, perhaps, justice will ultimately be done.

Cited in 7 later judgments