In Betterment Properties (Weymouth) Limited v Dorset County Council 1, Morgan J was confronted with an application to rectify the register under the section 14 of the Commons Registration Act 1965. This March, the Court of Appeal dismissed an appeal in that case.

The registration of the subject land as a village green had been completed as long ago as 2001 and the application to rectify was brought late in 2005; it came on for hearing in 2010. The procedural history in the litigation is a tale in itself. Nevertheless the issue before Morgan J was one of considerable importance in the fi eld of acquisition of easements and of what user amounts to user “as of right” when assessing qualitative and quantative user in the context of determining an application for the registration of a village green.

At the application to rectify the register, the principal matrix of fact was that the user of the land was contentious and that was demonstrated by the erection of signage at strategic points around the land in question by the owner. The signage required trespassers to keep out and the like. Further there were fences in place. Overtime both signage and fencing were taken down and in consequence re-erected by the owners. In due course however the owners of the land failed to reinstate either the fences or the signs.

Remarkably the primary users of the subject land were not those who broke through the fences or took down the signage. Rather the evidence was that the predominant use was by secondary users. This form of secondary user describes those who go through the vandalised fences and through the land passing posts which no longer bore extant signage. These secondary users sought to argue that they should be treated differently from those who actually breached the fences or tore down signage. As will be seen from what the judge said, those who broke down the fences and removed the signs to use the land were to be equated with those who used the land after the perpetration of acts of vandalism.

The judge firstly directed himself as to the law by going back to Ex p Sunningwell Parish2 and the speech of Lord Hoffman. He considered fi rst of all the meaning of “as of right” when concerning use of land for lawful sports and pastimes.

After analysing the two strands of the law which had to some extent developed separately, he unhesitatingly came to the conclusion that “as of right” equates with the Latin phrase “nec vi, nec clam, nec precario” and that therefore the law relating to the acquisition of easements and user as of right has a common root.

The judge said after analysing the law on both sides:

“From those cases I derive the following principles:

  1. The fundamental question is what the notice conveyed to the user. If the user knew or ought to have known that the owner was objecting to and contesting his use of the land, the notice is effective to render it contentious; absence of actual knowledge is therefore no answer if the reasonable user standing in the position of the actual user, and with his information, would have so known;
  2. Evidence of the actual response to the notice by the actual users is thus relevant to the question of actual knowledge and may also be relevant as to the putative knowledge of the reasonable user;
  3. The nature and content of the notice, and its effect, must be examined in context;
  4. The notice should be read in a common sense and not legalistic way;
  5. If it is suggested that the owner should have done something more than erect the actual notice, whether in terms of a different notice or some other act, the court should consider whether anything more would be proportionate to the user in question. Accordingly it will not always be necessary, for example, to fence off the area concerned or take legal proceedings against those who use it. The aim is to let the reasonable user know that the owner objects to and contests his user. Accordingly, if a sign does not obviously contest the user in question or is ambiguous a relevant question will always be why the owner did not erect a sign or signs which did. I have not here incorporated the reference by Pumfrey J in Brudenell-Bruce’s case to ‘consistent with his means’;

That is simply because, for my part, if what is actually necessary to put the user on notice happens to be beyond the means of an impoverished landowner, for example, it is hard to see why that should absolve him without more. As it happens, in this case, no point on means was taken by the authority in any event so it does not arise on the facts here.

In my judgment the following principles also apply:

  1. Sometimes the issue is framed by reference to what a reasonable landowner would have understood his notice to mean – that is simply another way of asking the question as to what the reasonable user would have made of it;
  2. Since the issue turns on what the user appreciated or should have appreciated from the notice, it follows that evidence as to what the owner subjectively intended to achieve by the notice is strictly irrelevant. In and of itself this cannot assist in ascertaining its objective meaning;
  3. There may, however, be circumstances when evidence of that intent is relevant, for example if it is suggested that the meaning claimed by the owner is unrealistic or implausible in the sense that no owner could have contemplated that effect. Here, evidence that this owner at least did indeed contemplate that effect would be admissible to rebut that suggestion. It would also be relevant if that intent had been communicated to the users or some representative of them so that it was more than merely a privately expressed view or desire. In some cases, that might reinforce or explain the message conveyed by the notice, depending of course on the extent to which that intent was published, as it were, to the relevant users.”

The Judge then turned to the evidence and came to the following conclusion:

“… a reasonable person using the land and knowing the facts which I have found to have existed would appreciate that the landowner objected and continued to object to that use of the land and that the landowner would back the objection by physical obstruction to the extent possible. For the avoidance of doubt, I ought to say something more specifi c as to what a reasonable user of the land for sports or pastimes would have known about the breaking down or cutting of fences and hedges and about the notices erected by the landowners. I find that a reasonable user of the land would have known that the fences and hedges had been broken down or cut. Many users of the land came on to the land by means of gaps in the fences and hedges. It would have been clear enough to such a reasonable user of the land that one of the purposes of the fences and the hedges being there was to prevent the public accessing the land at those points. It would have been clear enough to a reasonable user of the land that the gaps had been created (against the wishes of the landowners) by persons wanting to gain access at such point. I also fi nd that a reasonable user of the land in the period up to, say 1984, would have known that the landowners had erected signs which had been torn down and re-erected. As the various statements of the legal principle make clear, it is not necessary for the landowners to show that every single user of the land knew what a reasonable user would have known. I fi nd that the landowner was doing everything, proportionately to the user, to contest the user and to endeavour to interrupt it. In answering the question in this way, nothing turns in this case on the means of the landowners and I need not consider in any more detail the point made by Judge Waksman QC”. [emphasis added].

It is not possible to do justice to the analysis or reasoning in a short article but it is testament to the judgment at fi rst instance that the Court of Appeal3 did not fi nd any real diffi culty in upholding Morgan J.

There are lessons to be learned from this case and especially where land is purchased for development. There can be no substitute to the carrying out of a full survey to take in the boundary features and structures and if needs be to carry out repairs to them and resurrect any fencing. The survey will also show up how the land has been used for access or recreation. Signage can and should be erected to reinforce the primary obstacle to access, namely the boundary fences and hedges.

The property purchase protocol should not be limited to the routine. Instead the vendor should be required to provide a statutory declaration (or similar) setting out the history of the land so that a full record exists of how the integrity of the property was maintained and how the land was used. This should assist in arming the new landowner with weaponry to fi ght claims that the purchased land was and is a village green. Providing that the land was fenced off and/or properly signed to injunct trespassers in the last 20 years, the ability to resist an application for registration should stand some prospect of succeeding.