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Equity in the UKSC Determines just rectification of registration

About The Author

Thomas Horton (Former Writer)

Thomas studied Law at the University of Birmingham, and graduated with a 2:1 in July 2013. In the elapsed time, Thomas has worked for law firm HowardKennedyFsi LLP as a paralegal in the property department. Thomas has also been awarded a Major Scholarship by the Honourable Society of the Inner Temple and will begin the BPTC with City Law School in September 2014.

‘What happens if land is registered as a town or village green [(TVG)] when it should not have been?’

That is the question that the Supreme Court answered earlier this month when deciding on two pieces of land, in conjoined appeals, that had been registered as village greens, despite planning permission being granted prior to their registrations as a TVGs.

A “TVG” refers to a piece of common land, as defined by Section 22 of the Commons Registration Act 1965, ‘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.’

If a piece of common land meets one of these three criteria, then, in order for it to become a TVG, it must be registered, in accordance with Section 1(1)(a) of the 1965 Act.

The land affected will still have a registered owner, and Section 14 of the 1965 Act therefore provides for an amendment opportunity, should the registration of a TVG be disputed. Section 14(a) refers to the possibility of an individual being induced by fraud not to object the registration of a TVG; Section 14(b) refers to the registered TVG land being amendable when ‘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’. Both of these subsections are subject to whether ‘the court deems it just to rectify the register.’

The case in which the Supreme Court answered the above-stated question concerned Section 14(b); it had already been determined that the registration of the land concerned should not have been made. However, the challenge before the Supreme Court was whether the lapse of time between the registration and the objection was just within the meaning of Section 14.

In the first appeal, Betterment Properties Ltd challenged the registration of land that they had bought in 2005 that had been registered as a TVG in 2001 by a Mrs Horne due to 20 years’ use by local inhabitants for lawful sports and pastimes. Relying on Section 14, Betterment’s action sought to determine whether the whole of the land concerned had been used for the lawful sports and pastimes for twenty years and whether the use had been ‘as of right’. An exploration of the facts by Morgan J in the High Court determined that the use of the land had been contentious, and therefore not as of right until some time later than was compatible with the “20-year requirement” in Section 22 of the 1965 Act. On appeal by the Society for the Protection of Markham and Little Francis (whose original application of the land concerned to be a TVG in 1994 had been successful), it became apparent that the “just” requirement of Section 14 of the 1965 Act had become the most important aspect of the appeals. 

In the second appeal, Paddico challenged the registration of land they had bought in 2005 from Geo H Haigh and Co Ltd, who was the previous owner of the land concerned, which had been registered as a TVG by the Clayton Fields Action Group in 1997. Importantly: the land concerned had been granted planning permissions and been part of local development plans for a housing development between the 1960s and the 1990s. In 2010, in the High Court, Vos J determined that the use of the land had not been by ‘inhabitants of any locality’ within the meaning of Section 22 of the 1965 Act. On appeal, the Court of Appeal agreed with this aspect of the decision, but when determining the “justice” aspect of the rectification of the register, the decision to amend the register was overturned. Sullivan LJ stated in the Court of Appeal that those adversely affected by the registration of the land as a TVG ‘[should] not sleep on their rights. All other things being equal, the longer the delay in seeking rectification the less likely it is that it will be just to order rectification’. Demonstrating a want for certainty in the law and the register of TVG, Carnwath LJ concurred in stating that the public ‘are entitled to rely on the register to order their affairs, public or private.’

Accordingly, the Supreme Court were faced with determining what is the “proper approach” to be taken when determining whether the lapse of time between registration of a TVG and the successful objection to that registration is ‘just’ within the meaning of Section 14 of the 1965 Act.

Many of you may think that the appeals would fall into the ambit of some limitation period; referring to Snell’s Equity, Lady Hale (giving the only judgment) stated:

Where an equitable claim "is not expressly covered by any statutory [limitation] period but is closely analogous to a claim which is expressly covered, equity will act by analogy and apply the same period" (Snell's Equity, 32nd Edn (2010), para 5-018).

However,there has been no analogous limitation period set by Parliament for actions to vindicate private property rights. The equitable doctrine applied by the Supreme Court was that of ‘Laches’: the law supports the watchful not the sleeping. Summarily, the facts will determine whether a delay in the objection under Section 14 of the 1965 Act will ‘constitute a bar to relief’.

The Supreme Court allowed Paddico’s appeal, and dismissed Society for the Protection of Markham and Little Francis’ appeal. The dictum of Lady Hale at paragraph 33 forebodes this outcome at the beginning of her ladyship’s “discussion”: ‘[Section 14] 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.’

Focusing on this relationship between the claimants made the decision simple for the Supreme Court. A requirement to consider external ramifications of amending the register was not necessary, or for want of a better term: countervailing. The injustice suffered by Betterment and Paddico could not be offset by the inhabitants’ loss of the right to use the village green. Moreover, there was no evidence to show that there had been prejudice towards local inhabitants for their decision to buy properties surrounding the green, or towards public authorities that had made decisions in reliance of the registration of the green.   

Whilst focusing on the justice between the parties concerned, the decision of the Supreme Court simultaneously encapsulates the dictum of Sedley J in his decision of R v Bassetlaw District Council, Ex P Oxbyto reflect the public confidence aspect of this decision:

How, one wonders, is good administration ever assisted by upholding an unlawful decision? If there are reasons for not interfering with an unlawful decision, as there are here, they operate not in the interests of good administration but in defiance of it.

Lord Neuberger would be pleased to see that this decision demonstrates that equity has not “had its day”; contrastingly, however, the Supreme Court’s decision demonstrates the concerns noted in my earlier article on the affects of equity with a “complete register”. The competing principles of justice and certainty in our laws, whilst necessary, can ironically surpass each other.

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Tagged: Commercial Law, Equity, Property Law

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