Westhill Endowment v Birmingham City Council
On 31 October 2016, HHJ Purle QC handed down judgment in Westhill Endowment v Birmingham City Council in proceedings for rectification of the register of town or village greens under section 14(b) of the Commons Registration Act 1965. Guy Fetherstonhaugh QC and Nathaniel Duckworth appeared for the successful claimant.
The proceedings concerned a playing field in Selly Oak, Birmingham. The playing field was registered as a town or village green pursuant to section 15 of the Commons Act 2006 (“the 2006 Act”) following a public inquiry held in 2010.
In early 2016, the owner of the playing field applied for an order removing it from the register pursuant to section 14(b) of the Commons Registration Act 1965 (“the 1965 Act”).
The first question for the Court was whether there was any jurisdiction for it to entertain the claim bearing in mind the following apparent jurisdictional impediments:
(1) Section 14(b) of the 1965 Act is expressed to apply only where the original registration was made under section 13 of the 1965 Act. By contrast, here, the original registration was made under section 15 of the 2006 Act.
(2) Section 53 of and Schedule 6 to the 2006 Act repeal the 1965 Act in its entirety.
However, as the Court held, for some parts of the country a claim under section 14(b) of the 1965 Act is still possible. The Commons Act 2006 (Commencement No. 2. Transitional Provisions and Savings) (England) Order 2007 provides that where a town or village green is registered under section 15 of the 2006 Act before the coming into force of section 1 of that Act, it is deemed to have instead been registered under section 13 of the 1965 Act, with the result that the jurisdiction in section 14(b) of the 1965 Act still applies to it. An analysis of the various transitional provisions revealed that section 1 of the 2006 Act had been brought into force in relation to various pilot areas, but not Birmingham.
As a result, it was not necessary for the owner of the playing field to challenge the registration by means of judicial review: it was entitled to invite the Court to reconsider the matter by way of a rehearing (see Betterment Properties (Weymouth) Ltd v (1) Dorset County Council (2) G Taylor [2007] 2 All ER 1000 and [2008] EWCA Civ 22).
The owner’s primary reason for saying that the playing field should not have been registered as a town or village green was that, for the majority of the prescriptive period, use by local residents had been contentious (ie vi) and not therefore “as of right”. That was because there had been a number of signs in situ around the playing field that stated: “The [owner] permits dog walkers on its grounds but expects people to act in a reasonable way” or words to like effect. The owner contended that it was now established, on the authority of Betterment Properties (Weymouth) Ltd v Dorset CC [2012] 2 P & CR 3 and Winterburn v Bennett [2016] EWCA Civ 482, that signs forbidding public use of the land in question were effective to prevent prescriptive use and that, on their true construction, the owner’s signs forbade anyone other than the permitted dog walkers from using the playing field.
The Court noted that it had been held in R (Newhaven Port Properties Limited) v East Sussex County Council [2015] UKSC 7 that a byelaw containing an express prohibition on use of a harbour by dogs unrestrained by a lead carries an implied permission for use of the harbour by people with dogs on a lead. This was the converse situation. Nevertheless any reasonable reader of the signs in this case would understand that they were permitted to use the playing field for dog walking purposes and forbidden from doing so for any other purposes.
The Court therefore held that the residents’ use of the playing field had not been “as of right” and that it should not therefore have been registered as a town or village green. Although the claim had been brought some six years after the playing field had been registered, there was no obvious prejudice caused to the residents by that delay and it was therefore just to order rectification (see Betterment Properties (Weymouth) Ltd v (1) Dorset County Council (2) G Taylor [2014] 2 WLR 300).
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