“it is accepted that a registration authority … should maintain a strictly neutral stance in the exercise of its statutory function and we agree that it should not and confirm that it has not predisposed itself either for or against continued registration … Our client’s position is one of neutrality and will continue to remain so.”
“39. In its skeleton argument, Essex CC states that, whilst seeking to uphold its decision to register the Land on the evidence before the Inspector, it would take a neutral stance in relation to the additional evidence submitted in these proceedings, including the expert evidence of Mr Hibbert. Pursuant to that stricture, Mr Sharland did not cross-examine any of the witnesses called, nor did Essex CC call any evidence itself. Mr Sharland did not make submissions in respect of TWL’s two new grounds of challenge, as they were not advanced before the Inspector and are, at least to some extent, based on the new evidence.”
“12. —(1) All contracts, deeds, bonds, agreements, licences and other instruments subsisting in favour of, or against, and all notices in force which were given, or have effect as if given, by or to, a relevant authority in respect of any transferred matters shall be of full force and effect in favour of, or against, the body to whom such matters are transferred.”
“The income and property of the Academy Trust shall be applied solely towards the promotion of the Objects.”
“The High Court may order a register maintained under this Act to be amended if— (a) the registration under this Act of any land or rights of common has become final and the court is satisfied that any person was induced by fraud to withdraw an objection to the registration or to refrain from making such an objection; or (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, in either case, the court deems it just to rectify the register.”
“(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies. [ … ] (3) This subsection applies where— (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; (b) they ceased to do so before the time of the application but after the commencement of this section; and (c) the application is made within [the relevant period]. [(3A) In subsection (3), ‘the relevant period’ means— (a) in the case of an application relating to land in England, the period of one year beginning with the cessation mentioned in subsection (3)(b); [ … ] (8) The owner of any land may apply to the commons registration authority to register the land as a town or village green. (9) An application under subsection (8) may only be made with the consent of any relevant leaseholder of, and the proprietor of any relevant charge over, the land. (10) In subsection (9)— ‘relevant charge’ means— (a) in relation to land which is registered in the register of title, a registered charge within the meaning of theLand Registration Act 2002 (c. 9); (b) in relation to land which is not so registered— (i) a charge registered under theLand Charges Act 1972 (c. 61); or (ii) a legal mortgage, within the meaning of theLaw of Property Act 1925 (c. 20), which is not registered under theLand Charges Act 1972 ; ‘relevant leaseholder’ means a leaseholder under a lease for a term of more than seven years from the date on which the lease was granted.” (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; (b) they ceased to do so before the time of the application but after the commencement of this section; and (c) the application is made within [the relevant period]. (a) in the case of an application relating to land in England, the period of one year beginning with the cessation mentioned in subsection (3)(b); [ … ] ‘relevant charge’ means— (a) in relation to land which is registered in the register of title, a registered charge within the meaning of theLand Registration Act 2002 (c. 9); (b) in relation to land which is not so registered— (i) a charge registered under theLand Charges Act 1972 (c. 61); or (ii) a legal mortgage, within the meaning of theLaw of Property Act 1925 (c. 20), which is not registered under theLand Charges Act 1972 ; ‘relevant leaseholder’ means a leaseholder under a lease for a term of more than seven years from the date on which the lease was granted.”
“(1) The owner of any land registered as common land or as a town or village green may apply to the appropriate national authority for the land (‘the release land’) to cease to be so registered. (2) If the release land is more than 200 square metres in area, the application must include a proposal under subsection (3). (3) A proposal under this subsection is a proposal that land specified in the application (‘replacement land’) be registered as common land or as a town or village green in place of the release land. [ … ] (9) An application under this section may only be made with the consent of any relevant leaseholder of, and the proprietor of any relevant charge over— (a) the release land; (b) any replacement land. (10) In subsection (9) ‘relevant charge’ and ‘relevant leaseholder’ have the meanings given by section 15(10).” (a) the release land; (b) any replacement land. “As of right”
“(1) Any person who without lawful authority is present on premises to which this section applies and causes or permits nuisance or disturbance to the annoyance of persons who lawfully use those premises (whether or not any such persons are present at the time) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding£50 . (2) This section applies to premises, including playgrounds, playing fields and other premises for outdoor recreation— (a) of a school maintained by a local education authority … ” (These provisions are now in substance contained in theEducation Act 1996, section 547 .
“The Secretary of State shall promote the education of the people of England and Wales.”
“(1) Regulations shall prescribe the standards to which the premises of schools maintained by [local authorities] … are to conform; and without prejudice to the generality of section 569(4) different standards may be prescribed for such descriptions of schools as are specified in the regulations. (2) Where a school is maintained by a [local authority], the authority shall secure that the school premises conform to the prescribed standards.”
“(1) A [local authority] shall make arrangements for ensuring that [their education functions] are exercised with a view to safeguarding and promoting the welfare of children. (2) The governing body of a maintained school shall make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school.”
“The standard in this paragraph is met if the proprietor ensures that— (a) arrangements are made to safeguard and promote the welfare of pupils at the school; and (b) such arrangements have regard to any guidance issued by the Secretary of State.”
“11. The rival contentions of the parties as to the true construction of Section 14 focus on the evidential basis on which the court can decide that no amendment or a different amendment to the register ought to have been made. The Defendant contends that the court is required to decide this question in the same way as it would be required to decide an appeal by way of rehearing from the decision of the registration authority, that is to say on the evidence before the Panel but subject to the qualification that further evidence may be admitted if the ‘Ladd v Marshall test’ is satisfied and in particular if the evidence in question could not reasonably have been adduced before the Panel. The Claimant contends that the hearing before the court is not an appeal and that the procedure to be adopted on appeals is accordingly inapplicable, and that the parties are subject to no constraint as to the issues of law and fact which they raise subject only to the exercise by the court as master of its own procedure of its case management powers and in particular its powers regarding the admission of evidence.”
“14. … The issue is one of the construction of Section 14. The language of the section affords no basis for any suggestion that the role of the court is the exercise of an appellate or supervisory jurisdiction or that the jurisdiction should only be exercisable if the registration authority in directing registration made an error on the evidence adduced before it or an error of law: compare the position in respect of decisions of Commons Commissioners under sections 6 and 16 of the 1965 Act. The section requires only that it should appear to the court on the evidence before it that for any reason (factual or legal) no amendment or a different amendment should have been made and that it is just to rectify the error on the register.”
“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 section 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 e.g. which cannot now be challenged but could have been when registration took place. [ … ] 20. I accordingly hold in answer to the first question that Section 14 imposes no fetter on the evidence or arguments which may be relied on to establish that no amendment or a different amendment should have been made, even as it imposes no fetter on the evidence or argument which may be relied on to establish that it is or is not just to rectify the register; and that it is a matter for the judge hearing the application under Section 14 in the exercise of his case management powers to decide the procedure to be adopted and what should stand as evidence and what should be admitted as evidence at the trial.”
“18. The hearing of the preliminary issues took place before Lightman J in March 2007: see[2007] EWHC 365 (Ch) . He held that the jurisdiction exercised by the court on a s.14(b) application was not merely appellate or supervisory.”
“‘This access to Stoke Lodge has been in use for at least 40 years until it was filled in by someone during the summer,’ said one woman. ‘It is a favourite short-cut to Stoke Lodge, the shops and the playing fields’.”
“A spokeswoman for Avon County Council, which owns the land, said there were worries about motorcycles being ridden onto the fields and a fence with a kissing gate is to be put up.”
“4. The disposal of school playing fields has attained national significance recently with the publication of a survey carried out by the National Playing Fields Association (NPFA). The survey draws attention to the increasing development pressures on areas of open space within towns and cities, particularly those in education use. It is clear that problems over how to deal with no longer required for educational use school playing fields are being experienced by local authorities throughout the country. 5. At the local level strong concerns have been expressed by Bristol residents. During the consultation period on the Draft Bristol Local Plan the loss of open space was a major issue of debate. Recently two deputations from the Bristol Conservation Group have been presented to Bristol City Council urging action to prevent the loss of important areas of open space, and requesting that full public consultation by Avon County Council takes place on all proposals to dispose of land, playing fields, open space and historic buildings … A full list of ‘surplus’ sites was requested to be made public and that land be handed over to sporting groups and resources allocated to maintain sites. [ … ] 8. Officers from Avon’s Education and Property Services Departments are continuing a review of the land requirements of the Education Service in Avon. The review has focused specifically on assessing the current level of school playing field provision with respect to minimum statutory requirements. The review has identified a number of school sites where the playing field area appears to be in excess of those statutory requirements. [ … ] 10. A report to Avon County Council’s Education Committee of1 February 1994 considered the results of the review. The Committee resolved the consideration of the report be deferred and a further report providing additional information be presented to a future meeting of the Education Committee The Education Committee is to consider a further report on the review at its meeting on 12th April. At this meeting the Education Committee will be requested to consider specific proposals in respect of three sites in the city. The sites are set out in Table 1. It is anticipated that further areas of land currently listed in Table 2 will be brought forward for detailed consideration by the Education Committee in due course. [ … ] 13. The Education Committee only holds land for two purposes: (i) to meet statutory requirements concerning minimum standard [sic] at individual schools; and (ii) to secure adequate facilities for recreation, social and physical training, for school aged pupils in the LEA area vas a whole.”
“[BRISTOL CITY LOGO] Private grounds These grounds are private property and there is no right of public access. Legal action will be taken against any trespassers. Any request for the use of these grounds should be made in writing to the Divisional Director of Property and Local Taxation. The exercising of dogs on these grounds is forbidden.”
“One of Bristol’s most picturesque playing fields could be fenced off from the public at a cost of£1 million , to the outrage of people living nearby. The City Council has tabled plans to enclose Stoke Lodge fields in Stoke Bishop to preserve them for use by Cotham School, improve the quality of the football pitches and satisfy health and safety concerns … Technically, the public have never been allowed access to the fields, which are council-owned …”
“From the initial consultation, ideas were invited about how the council should best set its spending priorities for the coming year and beyond. The comments returned largely fell in around 70 different themes. These are summarised, together with the Council’s outline responses in Appendix 4.”
“Idea: I feel further fencing off of school playing fields as [sic] a waste of money. The£1,000,000 of BCC education money earmarked for fencing and other improvements to Stoke Lodge parkland could be better spent on other capital projects in the education department (CYPS). Schools such as Cotham and Brightstowe could share much underused facilities such as playing fields. Response: we are happy to reassure people, once again, that we will not be fencing off the Stoke Lodge playing fields, quashed this rumour once and for all.”
“Idea: School playing fields – could they not be used as recreation grounds used by local people of all ages and facilitated by play rangers, specialist sports coaches, fitness coaches, tai chi practitioners, etc? Might the costs be offset by a reduction in youth offending, obesity, diabetes, mental ill-health and the benefits include cross-generational interaction and support, happy healthy people, community cohesion, etc, etc? Could playing fields be transferred as a community asset to local community enterprises which would find innovative ways of raising the money for maintenance and service provision from feepaying activities (such as allotments round the edge, birthday parties, music festies, craft fairs) while still providing free access for many other regular activities and their participants, and the schools could become beneficiaries/partners – or they could set up a social enterprise and do it themselves? Response: Yes – a really interesting idea we could look at in connection with the individual schools. Do you have any particular playing fields in mind and any particular uses we could explore?”
“We had some major disruption today with dogs coming into the lesson. One dog came in and ran off with cones and chased students. Many of the students are anxious around dogs. The owner offered no apology but simply stated ‘I suppose this is what you get when you have a dog walking area and a school using the park’. I asked the woman if she could put her dog on a leash. Another 2 dogs came running into the lesson, again the owners seemed to have no control of their animals.”
“Please find attached a video of 3 dogs that came into my year 9 rugby lesson today and towards the end of the clip you see one of the dogs doing a poo on our pitch.”
“DM voiced his fears that, because of Cotham’s views on health & safety they will want to exclude areas of Stoke Lodge by fencing.”
“Cotham School are seeking … to erect fencing for the school’s exclusive use of the site. Rather selfishly in my view they wish to exclude members of the public and prevent them enjoying use of the parkland, which they have done for many decades … ”
“Where the owner of any land … to which this Part applies deposits with the commons registration authority a statement in the prescribed form, the statement is to be regarded, for the purposes of section 15, as bringing to an end any period during which persons have indulged as of right in lawful sports and pastimes on the land to which the statement relates.”
“COTHAM SCHOOL PLAYING FIELD MEMBERS OF THE PUBLIC ARE WARNED NOT TO TRESPASS ON THIS PLAYING FIELD In particular the exercising of dogs or horses, parking vehicles, flying model aircraft/drones, playing golf, the use of motorcycles and the carrying on of any activity which causes or permits nuisance or disturbance to the annoyance of persons lawfully using the playing field will render the offender liable to prosecution for an offence under section 547 of the Education Act (1996) REQUESTS FOR AUTHORISED USE SHOULD BE DIRECTED TO COTHAM SCHOOL Cotham School accepts no liability to users for any unauthorised use of the playing field.” (Section 547 of the Education Act 1996 had in the meantime replacedsection 40 of the Local Government (Miscellaneous Provisions) Act 1982 , though expressed in identical terms.) Within 24 hours of their erection, they had become known in the community, and a local MP made a statement about them. The evidence before me was that the City Council initiated enforcement proceedings against the claimant in relation to the signs. I do not know what happened to those proceedings. But the signs are still in place, although both have been vandalised. MEMBERS OF THE PUBLIC ARE WARNED NOT TO TRESPASS ON THIS PLAYING FIELD REQUESTS FOR AUTHORISED USE SHOULD BE DIRECTED TO COTHAM SCHOOL Cotham School accepts no liability to users for any unauthorised use of the playing field.”
“Did you ever see any notices/signs to prevent or discourage the use of the land by local people/the community?”
“65. … so far as concerns the use of Area B as a school playing field, that use engages the statutory duties of [Lancashire County Council] in relation to safeguarding children on land used for education purposes. LCC has to ensure that children can play safely, protected from strangers and from risks to health from dog mess. The rights claimed pursuant to the registration of the land as a town or village green are incompatible with the statutory regime under which such use of Area B takes place … ”
“5. In any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that Schedule. [ … ] Schedule 1 [ … ] ‘Land’ includes building and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land. [ … ]”
“In this Act – (a) references to the ownership or the owner of any land are references to the ownership of a legal estate in fee simple in the land or to the person holding that estate; (b) references to land registered in the register of title are references to land the fee simple of which is so registered.”
“92. … But our silence on the point should not be treated as endorsement of the parts of the judgments below in which TWL’s arguments on this issue were rejected.”
“The decision in the case [Attorney-General v Antrobus[1905] 2 Ch 188 ] was that the reasons why people used the road were irrelevant. It was sufficient that they used it as of right. I rather doubt whether, in explaining this term parenthetically as involving a belief that they were exercising a public right, Tomlin J meant to say more than Lord Blackburn had said in Mann v. Brodie(1881) 10 App Cas 378 , 386, namely that they must have used it in a way which would suggest to a reasonable landowner that they believed they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which, as I hope I have demonstrated, depends upon evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose, the actual state of mind of the road user is plainly irrelevant.”
“36. … the English theory of prescription is concerned with ‘how the matter would have appeared to the owner of the land’ (or if there was an absentee owner, to a reasonable owner who was on the spot).”
“88. The opposite of ‘peaceable’ user is user which is, to use the Latin expression, vi. But it would be wrong to suppose that user is ‘vi’ only where it is gained by employing some kind of physical force against the owner. In Roman law, where the expression originated, in the relevant contexts vis was certainly not confined to physical force. It was enough if the person concerned had done something which he was not entitled to do after the owner had told him not to do it … 89. English law has interpreted the expression in much the same way … If the use continues despite the neighbour’s protests and attempts to interrupt it, it is treated as being vi and so does not give rise to any right against him. 90. In short, as Gale on Easements, 18th ed (2008), para 4-84, suggests, user is only peaceable (nec vi) if it is neither violent nor contentious. [ … ] 92. If, then, the inhabitants’ use of land is to give rise to the possibility of an application being made for registration of a village green, it must have been peaceable and non-contentious.”
“20. In the present case, the Council's argument is that it acquired and has always held the Field pursuant to section 12(1) of the 1985 Act and its statutory predecessors, so the Field has been held for public recreational purposes; consequently, members of the public have always had the statutory right to use the Field for recreational purposes, and, accordingly, there can be no question of any ‘inhabitants of the locality’ having indulged in ‘lawful sports and pastimes’ ‘as of right’, as they have done so ‘of right’ or ‘by right’. In other words, the argument is that members of the public have been using the Field for recreational purposes lawfully or precario, and the 20-year period referred to in section 15(2) of the 2006 Act has not even started to run – and indeed it could not do so unless and until the Council lawfully ceased to hold the Field under section 12(1) of the 1985 Act. 21. In my judgment, this argument is as compelling as it is simple. So long as land is held under a provision such as section 12(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land ‘by right’ and not as trespassers, so that no question of user ‘as of right’ can arise. In Sunningwell at pp 352H-353A, Lord Hoffmann indicated that whether user was ‘as of right’ should be judged by ‘how the matter would have appeared to the owner of the land’, a question which must, I should add, be assessed objectively. In the present case, it is, I think, plain that a reasonable local authority in the position of the Council would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities, given that the Field was being held and maintained by the Council for public recreation pursuant to section 12(1) of the 1985 Act and its statutory predecessors. [ … ] 27. It was suggested by Mr Edwards QC in his argument for Ms Barkas that, even if members of the public were not trespassers, they were nonetheless not licensees or otherwise lawfully present when they were on the Field. I have considerable difficulty with that submission. As against the owner (or more accurately, the person entitled to possession) of land, third parties on the land either have the right to be there and to do what they are doing, or they do not. If they have a right in some shape or form (whether in private or public law), then they are permitted to be there, and if they have no right to be there, then they are trespassers. I cannot see how someone could have the right to be on the land and yet be a trespasser (save, I suppose, where a person comes on the land for a lawful purpose and then carries out some unlawful use). In other words a ‘tolerated trespasser’ is still a trespasser. 28. Furthermore, the fact that the landowner knows that a trespasser is on the land and does nothing about it does not alter the legal status of the trespasser. As Fry J explained, acquiescence in the trespass, which in this area of law simply means passive toleration as is explained in Gale (or, in the language of land covenants, suffering), does not stop it being trespass … ”
“35. … the visibility or not of the signs in relation to what I shall refer to as lawful user also raises a more fundamental question of law as to whether and to what extent signs stating the landowner’s opposition to the use of his land must ultimately come to the knowledge and attention of all users if the landowner has in fact taken all reasonable steps to achieve this. [ … ] 38. If the landowner displays his opposition to the use of his land by erecting a suitably-worded sign which is visible to and is actually seen by the local inhabitants then their subsequent use of the land will not be peaceable. It is not necessary for Betterment to show that they used force or committed acts of damage to gain entry to the land. In the face of the signs it will be obvious that their acts of trespass are not acquiesced in. But in some cases (and this is one of them) the landowner’s attempts to assert his opposition to the unauthorised use of his land may face the practical difficulty that a minority of users will not only defy his assertion of ownership but will also take active steps to remove or vandalise the signs which are put up. In these circumstances the failure of lawful users to see the signs may be attributable to their unlawful removal. But the appellant contends that in the absence of the signs, the use of the registered land by the majority of lawful users was peaceable. [ … ] 41. … Assuming that the notice is in terms sufficiently clear to convey to the average reader that any use of the relevant land by members of the public will be treated as a trespass then it will be irrelevant that individual users either misunderstood the notice or did not bother to read it. The inhabitants who encounter the sign have to be treated as reasonable people for these purposes to whom an objective standard of conduct and comprehension is applied … [ … ] 48. … If the landowner erects suitably worded signs and they are seen by would-be peaceable users of the land then it follows that their user will be contentious and not as of right. That is the easy case. The alternative is an objective test based on knowledge being attributed to a reasonable user of the land from what the landowner did in order to make his opposition known. If the steps taken to manifest that opposition are sufficient to bring it to the attention of any reasonable user of the land then it is irrelevant that particular users may not have been aware of it. The steps to be taken do not have to be fail safe in that regard. But they must be proportionate to the user which the landowner wishes to prevent. 49 All the relevant authorities in this area proceed on the assumption that the landowner must take reasonable steps to bring his opposition to the actual notice of those using his land. Disputes about whether the wording of the notices was sufficient to make it clear that any use of the land was not consented to and would be regarded as a trespass would be irrelevant if the landowner did not have to make his position known. They assume that some process of communication is necessary. If the landowner keeps his opposition to himself and makes no outward attempt to prevent the unauthorised use of his land he may be taken to have acquiesced. [ … ] 52. I agree with the judge that the landowner is not required to do the impossible. His response must be commensurate with the scale of the problem he is faced with. Evidence from some local inhabitants gaining access to the land via the footpaths that they did not see the signs is not therefore fatal to the landowner’s case on whether the user was as of right. But it will in most cases be highly relevant evidence as to whether the landowner has done enough to comply with what amounts to the giving of reasonable notice in the particular circumstances of that case. If most peaceable users never see any signs the court has to ask whether that is because none was erected or because any that were erected were too badly positioned to give reasonable notice of the landowner’s objection to the continued use of his land. [ … ] 56. … the occasions on which a member of the Curtis family or one of their employees actually challenged someone using the land were too infrequent to be treated as sufficient in themselves to make the local inhabitants’ user of the land contentious. [ … ] 60. It seems to me that there is a world of difference between the case where the landowner simply fails to put up enough signs or puts them in the wrong place and a case such as this one where perfectly reasonable attempts to advertise his opposition to the use of his land is met with acts of criminal damage and theft. The judge has found that if left in place, the signs were sufficient in number and location; and were clearly enough worded; so as to bring to the actual knowledge of any reasonable user of the land that their use of it was contentious. In these circumstances is the landowner to be treated as having acquiesced in that user merely because a section of the community (I am prepared to assume the minority) were prepared to take direct action to remove the signs? [ … ] 63. It would, in my view, be a direct infringement of the principle (referred to earlier in the judgment of Lord Rodger in Redcar (No 2)) that rights of property cannot be acquired by force or by unlawful means for the court to ignore the landowner’s clear and repeated demonstration of his opposition to the use of the land simply because it was obliterated by the unlawful acts of local inhabitants. Mrs Taylor is not entitled in effect to rely upon this conduct by limiting her evidence to that of users whose ignorance of the signs was due only to their removal in this way. If the steps taken would otherwise have been sufficient to notify local inhabitants that they should not trespass on the land then the landowner has, I believe, done all that is required to make users of his land contentious. 64. It follows from this that the Curtis family were not required to take other steps such as advertising their opposition in order to rebut any presumption of acquiescence. In my view, the judge was correct to hold that there was not user as of right for the requisite 20 years.”
“36. In my judgment, the authorities do not support the proposition that a servient owner must be prepared to back his objection either by physical obstruction or by legal action or the proposition that the servient owner is required to do everything, proportionately to the user, to contest and to endeavour to interrupt the user. As it seems to me, the decision of this court in Betterment[2012] 2P&CR 3 is inconsistent with these propositions. The court there accepted that the erection and re-erection of signs was all that the owner needed to do to bring to the attention of those using the land that they were not entitled to do so. [ … ] 40. In my judgment, there is no warrant in the authorities or in principle for requiring an owner of land to take these steps [ie physical barrier, oral objections, letters of objection, or legal proceedings] in order to prevent the wrongdoers from acquiring a legal right. In circumstances where the owner has made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land cannot be said to be ‘as of right’. Protest against unauthorised use may, of course, take many forms and it may, as it has in a number of cases, take the form of writing letters of protest. But I reject the notion that it is necessary for the owner, having made his protest clear, to take further steps of confronting the wrongdoers known to him orally or in writing, still less to go to the expense and trouble of legal proceedings.”
“24. … For example, there may be a notice which says ‘No right of way. Trespassers will be prosecuted’. Nevertheless, for upwards of 20years members of the public may have ignored the notice and used the way, openly and apparently in the assertion of a right to do so. Their user will satisfy section 31(1) but the landowner, even on the most objective test, will have satisfied the proviso.”
“32(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.”
“71. … This leads at once to the paradox that a trespasser (so long as he acts peaceably and openly) is in a position to acquire rights by prescription, whereas a licensee, who enters the land with the owner's permission, is unlikely to acquire such rights. Conversely a landowner who puts up a notice stating ‘Private Land - Keep Out’ is in a less strong position, if his notice is ignored by the public, than a landowner whose notice is in friendlier terms: ‘The public have permission to enter this land on foot for recreation, but this permission may be withdrawn at any time’.”
“64. The landowner does not have to meet force with force. He can achieve the same effect by making non-forcible objection or protests directed towards the users of his land. In Newnham v Willison(1988) 56 P & CR 8 , there was a dispute as to the existence of a right of way. … Having analysed the Authorities, Kerr LJ said this at p.19: ‘In my view what these authorities show is that there may be 'vi' – a forceful exercise of the user-in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious’.” [ … ] 70. In this context, the reaction of the applicants for registration to the landowner's objection must be relevant. If they had refuted the objection and persisted with their application, then it might well have been reasonable to have expected the landowner to do more to resist the exercise of the claimed right, for example, by erecting fencing or putting up notices. However, the reaction of the applicants after initially disputing the points made in the claimant's solicitor's letters of objection, was to withdraw their application to register the land as a village green. From the claimant's perspective, therefore, it had ‘seen off’ the applicants' contention that its land was a village green. Why did it need to do any more to make it plain that it was not acquiescing in the acquisition of village green rights over its land?” ‘In my view what these authorities show is that there may be 'vi' – a forceful exercise of the user-in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious’.”
“Protest against unauthorised use may, of course, take many forms … ”
“29. When dealing with ‘the issues’ the report correctly stated that the onus was upon the applicants for registration to prove on the balance of probability that the site had become a village green. Thus the applicants had to demonstrate that the whole, and not merely a part or parts of the site had probably been used for lawful sports and pastimes for not less than 20 years. A common sense approach is required when considering whether the whole of a site was so used. A registration authority would not expect to see evidence of use of every square foot of a site, but it would have to be persuaded that for all practical purposes it could sensibly be said that the whole of the site had been so used for 20 years.”
“159. Taking stock at this stage, I have now held that the pre-conditions to the court having power to order rectification of the register have been established. In particular, I have held that the amendment to the register which was made in 2001, to include the land as a town or village green, should not have been made. The outcome of this application under section 14 therefore critically depends on whether the court deems it just to rectify the register. Mr Laurence says that rectification would be just and Mr Petchey says that rectification would be unjust. 160. I begin by considering the effect of registration of land as a town or village green. After a considerable period of uncertainty on that point, the law has been settled by the decision of the House of Lords in Oxfordshire County Council v Oxford City Council[2006] 2 AC 674 … Land which is registered as a town or village green can be used generally for sports and pastimes. This does not mean that the owner is altogether excluded from the land. The owner still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants. There has to be give and take on both sides … 161. Accordingly, if the land in this case remains registered as a town or village green, the landowner will be subject to burdens which ought not to have been imposed, as the land should not have been registered in 2001. In the same way, the inhabitants of Wyke Regis will be entitled to enjoy rights over the land which should not have been conferred upon them, as the land should not have been registered. There is obviously a powerful case therefore for rectifying the register to remove the land from the register of town or village green to restore the situation to that which should have existed in and after 2001, freeing the land from burdens and taking away from the inhabitants of Wyke Regis rights which they ought never to have had. 162. Mr Petchey contends that this prima facie conclusion is overidden by a number of considerations particular to this case … ”
“33. … although the interests of the wider public are not irrelevant, the section is principally focussing on justice as between the applicant for rectification of a registration and the local inhabitants who are the beneficiaries of that registration. 34. Where the applicant is the owner of the land, the starting point, as it seems to me, is that the landowner's rights have been severely curtailed when they should not have been, and the inhabitants have acquired rights which they should not have had. It does not follow that the lapse of time is immaterial. None of the appellate judges thought that it was. Parliament has seen fit to deprive people of their right to bring proceedings to vindicate their rights after a certain period of time no matter how unjust this might seem to be … But Parliament has not seen fit to set a deadline for these applications, nor is there an obvious close analogy within the Limitation Acts. The better analogy would therefore appear to be with the equitable doctrine of laches, which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice. 35. As to (a), this is unlikely to be a problem in most of these cases: the original landowner will have been notified of and had an opportunity of objecting to the proposed registration and a subsequent purchaser such as Betterment or Paddico will have had the opportunity of consulting the register before deciding to buy … 36. As to (b), acquiescence may be especially relevant where an application for rectification is made by someone other than the landowner … 37. As to (c), detriment or prejudice, this, it seems to me, will usually be the crux of the matter. Because this is a public register and there are public as well as private interests involved I would not limit the potential prejudice caused by rectification to the prejudice to the local inhabitants who will no longer be entitled to use the land for lawful sports and pastimes … ”
“The 2006 Act was not intended to foreclose future use of the land for education purposes to which it is already dedicated as a matter of law.”
“65 … As regards the land held by LCC pursuant to statutory powers for use for education purposes, two points may be made. First, so far as concerns the use of Area B as a school playing field, that use engages the statutory duties of LCC in relation to safeguarding children on land used for education purposes. LCC has to ensure that children can play safely, protected from strangers and from risks to health from dog mess. The rights claimed pursuant to the registration of the land as a town or village green are incompatible with the statutory regime under which such use of Area B takes place. Secondly, however, and more generally, such rights are incompatible with the use of any of Areas A, B, C or D for education purposes, including for example construction of new school buildings or playing fields. It is not necessary for LCC to show that they are currently being used for such purposes, only that they are held for such statutory purposes … ”
“ … all notices in force which were given … by … a relevant authority in respect of any transferred matters shall be of full force and effect in favour of … the body to whom such matters are transferred.”
“The answer is that it is not necessary to draw it at any precise point. It is enough for us to say that the present case is on the right side of any reasonable line that could be drawn.”