Bond Pearce

Many of the recent landmark decisions in respect of town or village green (TVG) applications have found in favour of local inhabitants and thereby prevented development.  However, a number of cases in the last few months have seen developers fighting back and the courts finding in their favour.  Following on from the recent High Court decision ruling that a Council's previous decision to appropriate land for planning purposes can override TVG status (BDW Trading Limited (t/a Barratt Homes) v Spooner) two further cases have seen the High Court prepared to rectify the register to remove land that had previously been registered as a TVG.

In Paddico (267) Limited v Kirklees Metropolitan Council and others [2011] EWHC 1606 (Ch), the land in question was purchased as a speculative investment some seven and a half years after it had been registered as a TVG under the Commons Registration Act 1965.  The developers made an application under section 14 of the Act under which the High Court has the power to order rectification of the register if the court considers that no amendment (or a different amendment) should have been made and that it is just to rectify the register.

Among the questions before the Court was whether or not the land should have been registered in the first place in 1997 as the applicants could not show that their use was within a single locality.  The original application had relied on use from inhabitants of two different localities and Mr Justice Vos found that it wasn't open to him to determine that "any locality" was in the plural (this is in contrast to the position after the amendment (in 2000) to the legislation following which the user may relate to more than one neighbourhood or locality).

Mr Justice Vos also confirmed that "locality" (both before and after 2000) means an administrative district or an area within legally significant boundaries and the localities in question failed that test.

The Judge then went on to consider whether or not it was just to rectify the register within the requirement of Section 14 of the Act.  In considering various factors, the Judge found that the significant delay in bringing the application to trial was a factor against rectification but there was little other prejudice demonstrated by the residents. He also took into account that the planning permission obtained required that part of the land would be made available for public recreational space. The Judge concluded that justice demanded that the register be rectified but expressed his "disquiet at the outcome".