Adamson & Ors v Paddico (267) Ltd [2014] UKSC 7

The Supreme Court considered the relevance of delay when applying to rectify the register of town and village greens under section 14 of the Commons Registration Act 1965. It dismissed the inhabitants' appeal in Betterment and allowed the landowner's appeal in Paddico, ordering rectification in both cases.

Facts

These conjoined appeals concerned two parcels of land erroneously registered as town or village greens under the Commons Registration Act 1965, and applications to rectify the register under section 14 of that Act.

Betterment

In 1994, an application was made on behalf of the Society for the Protection of Markham and Little Francis to register approximately 46 acres of land in Weymouth, owned by the Curtis family, as a town or village green. Following a non-statutory public inquiry, Dorset County Council registered the land in June 2001. Betterment Properties (Weymouth) Ltd subsequently purchased the land at a discount and, in December 2005, commenced section 14 proceedings. Morgan J found that the use had not been "as of right" and ordered rectification, considering the lapse of time immaterial. The Court of Appeal upheld the order, although Sullivan and Carnwath LJJ would have placed greater weight on delay.

Paddico

In 1996, an application was made to register approximately six and a half acres at Clayton Fields, Huddersfield, despite the land having long been allocated for housing. Kirklees Metropolitan Council registered the land in April 1997. Geo. H. Haigh & Co Ltd commenced rectification proceedings but, following the Sunningwell decision, did not pursue them. In 2005, the company sold the land to Paddico, retaining overage provisions. Paddico commenced fresh section 14 proceedings in January 2010. Vos J ordered rectification, finding the land had not been used predominantly by inhabitants of a single locality. The Court of Appeal, by a majority (Sullivan and Carnwath LJJ), reversed that decision on the basis of the 12-year delay.

Issues

The sole issue before the Supreme Court was the relevance of the lapse of time between registration and an application for rectification to whether it would be "just" to rectify the register under section 14(b) of the 1965 Act. The substantive findings that the entries ought not to have been made were not under challenge.

Arguments

Mr Charles George QC, for the inhabitants, contended that there is a strong public interest in upholding public registers and that delay after the applicant knew or ought to have known of the illegality should militate against rectification, supported by analogies with judicial review and other registers.

Mr George Laurence QC, for Betterment and Paddico, objected to the majority view in the Court of Appeal that prejudice could be inferred from delay alone without supporting material. He argued some solid material was required.

Mr Carter, for the intervening company, emphasised that the overage provisions meant the original landowner retained a real interest in rectification.

Judgment

Lady Hale, with whom the other Justices agreed, identified three possible analogies for the proper approach: (1) public law principles applicable to judicial review, (2) statutory limitation periods, and (3) the equitable doctrine of laches.

Public law analogy

Lady Hale doubted that "good administration" pointed strongly in one direction, sharing Sedley LJ’s observation in Corbett v Restormel Borough Council that good administration is not assisted by upholding unlawful decisions. She found the analogy with other public registers unpersuasive given the different statutory contexts.

Statutory limitation

Parliament had deliberately not prescribed a limitation period and no close analogy existed within the Limitation Acts.

Laches

The better analogy was with the equitable doctrine of laches, requiring (a) knowledge of the facts, (b) acquiescence, or (c) detriment or prejudice. Lady Hale identified four categories of potentially relevant prejudice: prejudice to local inhabitants; prejudice to other individuals who had taken decisions in reliance on the registration; prejudice to public authorities and the public they serve; and prejudice to the fair hearing of the case itself.

Critically, the Court endorsed Patten LJ’s approach in Betterment that there must be:

material before the court to show that other public or private decisions are likely to have been taken on the basis of the existing register which have operated to the significant prejudice of the respondents or other relevant interests

Speculation or assumptions are insufficient, although the longer the delay, the easier it may be to draw inferences from solid material.

Application

In Betterment, the delay between June 2001 and December 2005 was relatively short, with no evidence of prejudice beyond the position of Mr and Mrs Thompson who had contracted to buy only six months after registration. The Court of Appeal’s decision to allow rectification was upheld.

In Paddico, although the delay of nearly 13 years was substantial, there had been an earlier abortive application, the law had been in considerable flux, and there was no specific evidence of prejudice to inhabitants beyond loss of recreational use. Conversely, Paddico, the company (via overage provisions), and the public (given the planning allocation for housing) would suffer prejudice if rectification were refused. The trial judge’s decision to order rectification was restored.

Implications

The decision clarifies the approach to lapse of time in rectification applications under section 14 of the Commons Registration Act 1965. Lapse of time is a relevant but not determinative factor; there is no fixed time limit and no presumption either way. The court rejected the approach of the Court of Appeal majority that prejudice could be inferred from delay alone after a particular period (whether six years or a decade).

The judgment establishes that the doctrine of laches provides the closest analogy, focusing the inquiry on knowledge, acquiescence and, most importantly, demonstrable prejudice supported by solid material. The prejudice analysis is wider than that to local inhabitants alone and may include prejudice to other individuals, public authorities, the wider public, and to the fair hearing of the case.

The decision is significant for landowners whose land has been wrongly registered as a town or village green, for local inhabitants who have come to rely upon such registration, and for registration authorities. It recognises that registration severely curtails landowners’ rights and that, where registration ought not to have been made, the starting point is that the landowner has suffered an injustice which justifies rectification absent material prejudice from delay. The judgment also implicitly affirms the importance of section 14 rectification as the mechanism that ensures compliance with article 6 of the European Convention on Human Rights, given that the administrative registration process does not itself satisfy article 6 requirements.

Verdict: Mrs Taylor’s appeal on behalf of the Society in the Betterment case was dismissed; the landowner’s appeal in the Paddico case was allowed. Rectification of the register was ordered in both cases.

Source: Adamson & Ors v Paddico (267) Ltd [2014] UKSC 7