Court of Appeal judgment threatens village greens

We are disappointed that the Court of Appeal today upheld a decision of the High Court (23 November 2010) on Markham and Little Francis village green at Weymouth in Dorset. Read the judgment here.

The judges determined that the land was wrongly registered as a green.  It will be removed from the register, leaving it vulnerable to development, and local people will lose their right to use it for lawful sports and pastimes.

The 42-acre site was registered by Dorset County Council as a village green in 2001 under the Commons Registration Act 1965.  In 2004 the land was purchased by prospective developers, Betterment Properties Ltd.  Four years after the council registered the land as a green, Betterment applied to the High Court to have it struck from the register, challenging Dorset County Council’s decision.⁽¹⁾

There are two main issues, whether use of the land by local people had been as of right, ie without being stopped or given permission, using force or being secretive, and whether the delay in applying for judicial review was against rules of natural justice.⁽²⁾

The Society for the Protection of Markham and Little Francis, a member of the Open Spaces Society which has contributed to the fighting fund, is seeking leave to appeal to the Supreme Court.

Says Nicola Hodgson, our case officer: ‘We are dismayed at this outcome for Markham and Little Francis green, and for the local community who have for many years enjoyed this green lung on the edge of the town.  If left unchallenged, this case poses a threat to the many greens which were registered under the Commons Registration Act 1965.’

 

1.         Markham and Little Francis green was registered under the Commons Registration Act 1965 but the matter was delayed, and was finally determined by Dorset County Council after the greens-registration law had been changed by the Countryside and Rights of Way Act 2000.  This Act amended slightly the criteria required to register land as a village green, in particular making it more flexible for people in urban areas to register (neighbourhood within a locality).  Dorset therefore used that law in deciding the application in favour of a green.  Betterment Properties argued that because the process had started under the 1965 Act it should have been completed under that Act and therefore the registration was void.  As of right use, means use by local people without secrecy, force or permission.

 

 

2.         It was argued by the village green applicants that, the time delay (4 years) before Betterment applied to amend the register was against the rules of natural justice.  If it had been a judicial review of the application of the decision by Dorset County Council it would have had to be made within 3 months.