Taylor v Betterment Properties (Weymouth) Ltd & Anor

Factual and Procedural Background

The case concerns approximately 46 acres of land near The City, registered by The Council in June 2001 as a town or village green. Originally owned by members of the Curtis family, the land included public footpaths but was not legally accessible beyond these paths prior to registration. In December 1994, an individual ("Applicant") applied to The Council to register the land as a town or village green under s.13 of the Commons Registration Act 1965 ("the 1965 Act"), relying on twenty years' user as of right since 1990. The Council initially refused the application in 1996 but later amended the register in 1998 to provisionally register the land, including an area mistakenly registered (cross-hatched land), which was later agreed to be removed.

A public inquiry was held in 2000 with evidence from both sides, including the Curtis family and the Applicant. The Council decided in 2001 to register the land as a new town or village green applying the amended definition under the Countryside and Rights of Way Act 2000 ("2000 Act"). The Curtis family commenced judicial review proceedings challenging the registration but discontinued them to pursue a s.14 application for rectification of the register. Betterment Properties ("Applicant Company") later acquired the land and initiated the s.14 application in 2005.

The s.14 application raised preliminary issues regarding the nature of the court's jurisdiction and the applicable definition of a town or village green, which were decided in favour of the Applicant Company. The substantive hearing before Morgan J in 2010 considered whether the registration was valid, focusing on user as of right and locality. The judge found there had not been user as of right for twenty years prior to the s.13 application, particularly because the landowners had contested use up to approximately 1984. The judge also found that part of the land (the "Works Site") was fenced off and unavailable for use during construction works from 1979 to 1982, warranting exclusion from registration. The judge concluded it was just to rectify the register to remove the registration.

The Defendant appealed the finding on user as of right and the justice of rectification, with permission granted only on the user as of right issue initially. The appeal raised issues concerning the sufficiency of the landowners' steps to contest user and the appropriate balancing of interests under s.14.

Legal Issues Presented

1. Whether the use of the registered land by local inhabitants was "as of right" (i.e., nec vi, nec clam, nec precario) for the requisite twenty-year period prior to the s.13 application.
2. Whether the fencing off of the Works Site between 1979 and 1982 interrupted the continuity of user required for registration.
3. Whether it was just to rectify the register under s.14 of the 1965 Act, considering factors including delay, change of ownership, and the interests of local inhabitants.
4. The applicable definition of "town or village green" for the s.13 application—whether the amended definition under the 2000 Act or the original unamended definition applied.

Arguments of the Parties

Appellant's Arguments

• The landowners contended that they had taken sufficient and reasonable steps to contest public use of the land, including erecting and re-erecting visible signs prohibiting trespass and maintaining fences, thereby rendering the user contentious and not as of right.
• They argued that the presence of vandalism and removal of signs by some users did not absolve them from contesting user, as they had done all reasonably necessary to manifest their objection.
• The appellant contended that the court should consider actual knowledge of the landowner's objection by the majority of users and that the landowners failed to bring their opposition to the attention of most lawful users, who claimed not to have seen any signs.
• Regarding the Works Site, the appellant argued that the fencing and construction works physically prevented user, interrupting the required continuity.
• On the issue of justice, the appellant submitted that delay in bringing the s.14 application and the fact that the Applicant Company was a subsequent purchaser with knowledge of the registration should weigh against rectification.
• They suggested that additional steps such as public notices or leaflets should have been used to notify users of the objection to use.

Appellee's Arguments

• The Applicant Company argued that the user was not as of right because the landowners had actively contested use through signs, warnings, and fencing, making the user contentious.
• It was submitted that the fencing off of the Works Site for several months prevented continuous use, interrupting the twenty-year period required for registration.
• The Applicant Company relied on the court's broad jurisdiction under s.14 to rectify the register where an error had been made and it was just to do so, notwithstanding delay or change of ownership.
• They argued that the actions of a minority in vandalising signs did not negate the landowners’ opposition, and that the landowners had done all reasonably necessary to make their objection known.
• On justice, they contended that the landowners’ property rights under Article 1 of the First Protocol to the Human Rights Convention were engaged and that rectification was necessary to vindicate those rights.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Oxfordshire CC ex parte Sunningwell PC [2000] AC 335	Definition of "as of right" as nec vi, nec clam, nec precario; user must be peaceable, open, and without license.	Applied to confirm that user must be non-contentious and that landowner’s opposition must be manifest to prevent acquisition of rights by force or stealth.
Regina (Beresford) v Sunderland City Council [2004] 1 AC 889	Confirmed the requirement of user as of right for registration of town or village greens.	Used to support legal framework for user as of right in this case.
Regina (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70	Clarified the meaning of nec vi, nec clam, nec precario and the importance of actual or constructive knowledge of landowner’s objection.	Guided the court’s analysis on whether user was contentious and the sufficiency of landowner’s objection.
Sturges v Bridgman (1879) 11 Ch D 852	Illustrated that user is contentious if done against landowner’s known objection, even without physical force.	Supported the principle that user must be peaceable to establish rights.
Dalton v Henry Angus & Co (1881) 6 App Cas 740	User nec vi equates to peaceable user; owner’s protests can destroy peaceable character.	Used to reinforce that user must not be contentious to establish rights.
Smith v Brudenell-Bruce [2002] 2 P&CR 51	Test for contentious user: owner must do all reasonable acts to contest user to render it contentious.	Adapted and applied to town or village green context to assess whether landowner objected effectively.
R (Oxfordshire and Buckinghamshire Mental Health NHS Foundation Trust) v Oxfordshire CC [2010] LGR 631	Clarified principles on effectiveness of notices and proportionality of landowner’s actions in contesting user.	Applied to evaluate whether notices and other steps taken by landowners were sufficient.
Goodey v Everett (1880)	Considered interruption of user by third party activities and effect on continuity of use.	Referenced in relation to whether fencing of Works Site interrupted user for registration.
R v Newbury District Council ex parte Chieveley Parish Council (1998) PLRC 51	Delay in judicial review can constitute undue delay affecting good administration.	Used to assess relevance of delay and good administration in justice balancing under s.14.
Caswell v Dairy Produce Quota Tribunal [1990] 2 AC 738	Importance of certainty and good administration in public decisions.	Supported consideration of good administration in assessing justice of rectification.

Court's Reasoning and Analysis

The court undertook a detailed factual and legal analysis focusing on whether the user of the registered land was "as of right" for the requisite twenty years. It examined the evidence of signs and fencing maintained by the Curtis family, concluding that these were sufficient to manifest clear objection to public use outside the footpaths. The court accepted that while some lawful users claimed not to have seen signs, this was attributable to vandalism and removal of signs, not to a failure by the landowners to take reasonable steps to contest use.

The court applied established legal principles from key authorities, interpreting "as of right" to require that user be peaceable and non-contentious, meaning the landowner must have done all reasonably proportionate acts to contest use. The court found that until roughly 1984, the landowners actively contested use, making user contentious and preventing the acquisition of rights. After that time, the landowners ceased contesting use, but the twenty-year period prior to the s.13 application was not satisfied.

Regarding the Works Site, the court found that the fencing and construction works physically prevented public use during a period from late 1979 to at least April 1980, interrupting continuous user and justifying exclusion of that part from registration.

On the issue of justice under s.14, the court balanced the landowners' rights against any prejudice to local inhabitants. It held that error in registration alone does not compel rectification; the court must decide whether it is just to rectify. Although delay and change of ownership were relevant factors, they were not determinative absent evidence of prejudice or impact on good administration. The court found no such prejudice sufficient to bar rectification and considered that maintaining an unlawful registration would unjustly infringe the landowners’ property rights.

The court also considered the procedural context, confirming that s.14 proceedings permit a re-hearing on the merits and that the original registration must be assessed under the law applicable at the time the s.13 application was made (i.e., the unamended definition of town or village green).

Holding and Implications

The appeal is dismissed.

The court upheld the decision that the user of the land was not "as of right" for the necessary period and that it was just to rectify the register to remove the town or village green registration. The Works Site was properly excluded due to fencing and interruption of user. The decision affirms that landowners who take reasonable and proportionate steps to contest use effectively prevent acquisition of rights by prescription, even if some users do not see notices due to vandalism. Delay and change of ownership, while relevant, do not preclude rectification unless accompanied by prejudice or harm to good administration.

The ruling clarifies the application of the s.14 jurisdiction to rectify registration errors, emphasizing the balance between protecting landowners' property rights and considering the interests of local inhabitants. No new precedent was established beyond the application of existing legal principles to the facts.