Category Archives: Property Law

Banksy was the Landlord’s to pass on

What term is to be implied into a lease as to the ownership of a valuable part of a let property which is justifiably removed from the property by the tenant, in accordance with the tenant’s repairing obligation, and so becomes a chattel?

Usually the term, which is to be implied, is that the chattel becomes the property of the landlord. For:

1. the default position is that every part of the property belongs to the landlord. The tenant only has a tenancy for a period of time. If the tenant thinks differently it is for the tenant to show that it is right to imply into the lease a term which leads to a contrary conclusion;

2. the mere fact that the tenant is carrying out its repairing obligation does not imply that it acquires ownership of the chattel which results from part of the property being removed;

3. even if a term could be implied that (1) waste or (2) chattels with just scrap or salvage value belong to the tenant, it did not mean that it should be implied with respect to the ownership of a chattel with a substantial value. Such a term would not be necessary, would not go without saying and would not be one that would be implied as something that might have been raised by an “officious bystander” when the terms of the lease were originally hammered out;

4. it makes no difference that the value is attributable to the spontaneous actions of a third party. Whatever solution is adopted, one party gets a windfall. Who has the better right to the windfall? Usually it will be the landlord.

In The Creative Foundation v Dreamland Leisure Ltd & Others [2015] a Mural attributed to Banksy was removed by the First Defendant (“Dreamland”) from a building at Folkestone (“the Building”). Then the wall was made good. Dreamland was the tenant of the Building.

This was done without the knowledge or permission of Stonefield Estates Ltd (“the Landlord”). The Landlord had assigned to the Claimant (“the Foundation”) its ownership of the Mural and its rights to sue Dreamland. The claim was for the return of that section of wall.

The High Court said the problem arose from the public knowledge that a Banksy had been on the site and would remain the same whether the Banksy was removed by overpainting, cleaning or removal and reinstatement of the wall. The shrine would remain a shrine, whichever method was used. So the removal of the wall was not in any event justified.

Even if it had been justified the wall would still belong to the Foundation as assignee of the Landlord’s ownership of it – under points 1-4 listed above.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Court ordered removal of Land Registry Caution in advance of full hearing

The effect of registering a caution against the first registration of unregistered property has tended, in practice, to be that it cannot be sold.

Furthermore the process to challenge the registration of the caution takes a considerable length of time.

If an application is made to remove the caution, the court must consider whether the respondents have a seriously arguable case for obtaining ownership of, or a proprietary interest in, that property, when the case comes to trial.

The court must also consider whether either or both parties would be adequately compensated by an award of damages for:

– the loss of the property or that proprietary interest if the caution is wrongly ordered to be removed; or

– the loss of a selling opportunity, perhaps in a falling market, if the caution is wrongly ordered to remain

in advance of a full trial of the issues.

If neither can be adequately compensated in that way, the court must decide “where the balance of convenience lies”.

In the High Court case of Williams v Seals & Ors [2014] the respondents claimed an interest in some Derbyshire farm property under the Inheritance (Provision for Family and Dependents) Act 1975 and by proprietary estoppel. They lodged a caution against first registration to prevent the property from being sold free of their claims.

The claimant was the sole executrix and beneficiary under a Will bequeathing the property and now applied to get the caution removed.

The respondents’ statement of means in support of their claim under the 1975 Act showed that they had very limited means. Mr Seals stated in his witness statement that he had no assets of any real value.

The claimant had not put any evidence before the court of her financial resources, but the respondents’ evidence indicated their belief that she was independently wealthy and the sole freehold owner of two properties in Ashbourne which were free of mortgage.

The fact that respondents were asking that the claimant’s property remain subject to the caution pending the full court hearing of these issues created an obvious difficulty where (as here) the owner was proposing an imminent sale of the property. Since in the meantime the respondents had not given the claimant any undertaking to pay damages or afford other protection in the event that the caution was ordered to be cancelled at the full hearing but had frustrated a sale in the meantime.

If the caution were not cancelled and the farm and other land could not be sold, then pending a full trial of the action the risks to the estate were threefold:

1. loss of interest on the sale price in the meantime;

2. expenditure to maintain the property and

3. the possibility of a decline in market value.

Were the respondents to fail in their claims, there was no evidence to suggest that the respondents would be in a position to meet a claim to compensate the claimant estate for any of those losses which it might suffer as a result of the caution remaining in place. On the other hand, it appeared likely that the claimant would be able to compensate the respondents for any loss resulting from the cancellation of the caution.

This conclusion was a major factor in leading the court to order the caution to be cancelled and so permit the sale of the farm to proceed.

This blog as been posted out of general interest. It does not replace the need to get bespoke legal advice in indvidual cases.

Estoppel based on promise of permanent home

In the Court of Appeal case of Southwell v Blackburn [2014] the Appellant and the Respondent had set up home together in Droitwich, in 2002. The Respondent, a divorcee with 2 daughters, had given up a secure tenancy of a property in Manchester, which she had spent roughly £15,000 on, based on his representations that she would have a long term home and the same security as a wife. The Appellant funded the purchase of the house with the equity from his old house and a repayment mortgage in his sole name which he alone repaid.

When the relationship broke down 10 years later the Respondent unsuccessfully claimed that the Appellant held the Droitwich house under a constructive trust for the benefit of both of them in equal shares. But the judge at first instance found she had an enforceable equity, in the Droitwich house, by operation of proprietary estoppel to the tune of £28,500.

It’s notable that the representations he made to her were specific as to the nature and extent of the “long term commitment” he gave her “to provide her with a secure home” but were not specific as to ownership of their new home.

The judge at first instance found that he had led the Respondent to believe she would have an entitlement which would, on any breakdown of the relationship, be recognised in the same way as the contribution of a wife to the assets of a marriage would be recogised on a marital breakdown. Without that she would not have given up her secure tenancy in Manchester.

His promise had not been of a half share in the house, but he had given her a promise of security, which he had failed to fulfil, and it would be unconscionable for the Appellant not to try to put her back in much the same position as she was before she gave up her own house.

The case is also significant in that much the larger part of her award was quantified not on what she spent on the Droitwich house but on what she had spent on the Manchester house, they not cohabited in, and that she had given up.

On top of her spending on her old home that she had given up, she had spent £4,000 – £5,000 as her contribution to setting up the new house with the Appellant. The Respondent had been relieved of her liability to pay rent in Manchester and had lived rent-free in Droitwich but her practical support had assisted him to increase his earnings by at least one major career promotion. The value of the new house had increased from £240,000 to £320,000. Allowing for inflation £20,000 was adjusted to the £28,500 she was awarded. That figure reflected the prejudice she had been subjected to by the Appellant not fulfilling his promise and should allow her to get back to her 2002 position.

The detriment to the Respondent had not been that she embarked upon a relationship with the Appellant but that she had abandoned her secure home in which she had invested, and she had then invested what little else she had in the Droitwich home even though she had no legal title to it.

It was that detrimental reliance which made the Appellant’s promise irrevocable and led to the conclusion that he could not conscionably go back on the assurance about her having a long term secure home.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Third parties who induce breaches of personal rights may not rely on non registration

To make a purchaser of a registered land title subject to personal liability in respect of adverse contractual rights concerning land, not disclosed on the register, may seem contrary to the entire scheme of land registration.

Section 29(1) Land Registration Act 2002 is the section that regulates priorities but it does not concern itself with purely personal rights. It postpones any interest affecting land to any later land dealing, if the priority of that interest was not protected at the Land Registry at the time of registration of that later land dealing so long as that later land dealing has been done for value.

The key to this conclusion is that the phrase an interest affecting land covers proprietary rights – but would not extend to purely contractual rights as section 132(3)(b) of the Land Registration Act 2002 defines “any interest affecting the estate” as “an adverse right affecting the title to the estate…”

In the High Court case of Lictor Anstalt v Mir Steel UK Ltd & Another [2014] a hot steel strip mill (“HSM”) was in a factory which the claimant (Lictor) had procured for Alphasteel (now in administration).

The removal of a HSM would have been complex, very expensive and time consuming and would have required some remedial repair works to the site.

The court ruled that the HSM formed part of the site and so, part of the land itself. Given it’s very nature, the HSM was intended as a permanent or semi permanent structure. The purpose of securing the HSM to the site had been to enjoy the site as a functioning steel mill.

An HSM of this kind would have been expected to have an operable life of up to fifty years and would only be removed in exceptional circumstances.

It therefore rejected Lictor’s primary claim that the HSM was a collection of chattels which Lictor had retained title to despite Alphasteel’s ownership of the site.

Although the HSM had become part of the land an agreement between the Lictor and Alphasteel (“the April Agreement”) had sought to:

– regulate Alphasteel’s use of the HSM creating contractual and equitable rights and obligations in relation to the it;
– to classify the HSM as a chattel;
– to preserve a contractual right for Lictor to prevent dealings with the HSM by Alphasteel as if it were the owner; and
– to preserve a contractual right for Lictor to enter onto the site in order to sever the HSM from the land and remove the HSM.

When the Administrators of Alphasteel later sold the site including the HSM on to Mir, Mir actually knew through the Administrators that by executing the associated hive down agreement and the land transfer the April Agreement would be breached.

This exposed Mir to liability to Lictor for the tort (legal wrong) of inducing breach of contract.

Will this lead to a need for additional enquiries in every case? No because the tort is based upon actual knowledge by the purchaser of the contractual rights being broken.

However it does mean that a buyer with knowledge that it’s purchase proposals will contravene someone else’s contractual rights cannot simply close their eyes and rely on the fact that those rights are not protected by a notice or a restriction on the land register.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Circumstances of unlawful killing did not displace Forfeiture Rule’s application to Joint Property

Where a person is a beneficial joint tenant of a property, or the beneficiary to that property under the owner’s will, it will normally pass to them by “survivorship” or under that will on the death of the other joint tenant or of the owner.

However under the common law “Forfeiture Rule” a person who has unlawfully killed another is barred out from acquiring a benefit as a result of the killing. This is subject to the Court’s power under the Forfeiture Act 1982 to modify the application of the Rule in individual cases.

In the recent High Court case of Chadwick v Collinson & Ors [2014] the Claimant and the Deceased had been beneficial joint tenants of a house at Bolton-le-Sands, Lancashire (“the Property”).

The Deceased had made a will in which the Claimant was the residuary beneficiary. The net value of her estate was £79,098.87. £60,000 of this had been referable to the Deceased’s interest in the Property.

The Claimant had been referred for a mental health assessment after describing feelings of paranoia and hearing voices. In the early morning just prior to the scheduled assessment, the Claimant stabbed the Deceased and their six year old son repeatedly killing them both. The Claimant was arrested and charged with murder. His guilty plea to manslaughter on grounds of diminished responsibility was accepted and he was detained under a Hospital Order under Section 37 of the Mental Health Act 1983.

But for the Deceased’s killing, the Deceased’s interest in the Property would normally have passed to the Claimant on the Deceased’s death under the beneficial joint tenancy.

The issues here were:

i) Did the Forfeiture Rule apply in the circumstances of this case; and

ii) If it did, did the justice of this case require the effect of the Rule to be modified?

On point i) the Claimant said the Forfeiture Rule did not apply to some cases of manslaughter and that it ought not to apply here because of the mental health of the Claimant.

The Court said the Rule might be disapplied where the crime involved such a low degree of culpability or such a high degree of mitigation that the sanction of forfeiture would have been contrary to the public interest. But here whilst the mental disorder might have significantly reduced the degree of culpability it had not been eliminated or reduced to such a low level that to give effect to the Forfeiture Rule would be contrary to the public interest.

Under the partial defence of diminished responsibility the “abnormality of mind” merely impacted on the Claimant’s capacity to form a rational judgment and, reduced, but did not eliminate, his ability to control his behaviour. These did not derogate from the fact that the Claimant had decided to kill his partner and son, knew that it was wrong and had some residual self control.

Apart from the question of culpability, which was sufficient to justify the application of the Forfeiture Rule, the nature and gravity of the offence also weighed, with the Judge, against disapplying of the Forfeiture Rule. Included were (a) the number of fatal and non fatal wounds inflicted by the Claimant and (b) the number of times he returned to attack each victim.

The evidence also lacked anything that could begin to explain what occurred.

The conduct of the victim might have militated against the rule applying had they subjected the assailant to years of intolerable physical or mental abuse. In fact the couple’s relationship seemed entirely stable, loving and long lasting. The deceased’s will had been consistent with this since she left him the entirety of her estate and only to her children if he did not survive her more than 28 days.

Another factor substantially against disapplying the Forfeiture Rule was that most if not all her interest (and the Claimant’s interest) in the Property had been funded by inheritance from the Deceased’s late mother.

On the Claimant’s attempt to modify the application of the rule mentioned at ii) above:

The financial position of the Claimant was also relevant. He would still have his share of the Property but it may be difficult for him to again earn his living as a self employed gardener whenever he was released. This factor favoured modifying the effect of the Forfeiture Rule but was outweighed by the other factors militating against such modification.

Another factor to be borne in mind was that those who would benefit under the Forfeiture Rule were largely aunts and cousins of the Deceased who she did not intend to benefit in the event of her death. That weighed against applying the Forfeiture Rule but not heavily. That factor, whether alone, or in combination with the Claimant’s future financial position, was outweighted by the other factors referred to above. So the application of the Forfeiture Rule should not be modified in the circumstances of this case.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Rectification of Land Register cost priority of derivative lease

The principle of the indefeasibility of the Land Register may be more qualified than had been thought as a result of the following Court of Appeal decision.

In Gold Harp Properties Ltd v Macleod & Others [2014] a freeholder wanted to see their property’s roof space developed so tried to forfeit the two existing leases of that undeveloped roof space by peaceable re-entry. The freeholder succeeded in getting the leases removed from the register and the roof space was relet. The new lease went through several assignments. From the available evidence, the new lease was neither granted or changed hands for valuable consideration appearing to move between the parties who were companies owned and controlled by the same family whose son owned the freehold.

The two tenants of the “forfeited” leases (the respondents) were later found, by a court, to have tendered the rent arrears in time and it was ruled that peaceable re entry had not occurred so the court ordered their leases to be restored to the Land Register as though they had never been forfeited.

The effect of the court’s order was that:

– The new lease remained in place and registered on the title but as a lease reversionary to the restored leases with those leases noted against its title.

– So, the ultimate tenant by assignment of the new lease (Gold Harp) became the new immediate landlord of the restored leases.

– The respondents, and their successors in title, would enjoy the right to occupy the roof space under their respective restored leases in priority to Gold Harp. It’s interest being reversionary only was now practically valueless save in the unlikely event of a future termination of the respondents’ leases before their terms expired.

The appeal here was against that part of the order.

As the new leasehold had neither been granted nor changed hands for valuable consideration passing between any parties the basic rule of Section 28 Land Registration Act 2002 (“2002 Act”) applied and the priority of the respondents’ interests derived out of the freehold was not affected by any of those dispositions.

At first sight the omens for the Gold Harp were good because Paragraph 8 of Schedule 4 of the 2002 Act headed “Rectification and derivative interests” says:

“The powers under this Schedule to alter the register, so far as relating to rectification, extend to changing for the future the priority of any interest affecting the registered estate or charge concerned.”

Gold Harp said the words “for the future” made it clear that, rectification of the Register cannot operate retrospectively to remove the priority that the new lease had acquired over the restored leases due to their absence from the register at the time the new lease was registered.

To give rectification retrospective effect was to undermine the basic rule that the state of the Land Register, at any given time, was conclusive and could be relied on and was indefeasible.

Consistently with this most of the texts took the view that rectification only operated in respect of future dealings and left any derivative interests created in the meantime alone.

The Court of Appeal said that the principle of the indefeasibility of the register had always had its qualifications.

Schedule 4 was concerned with “correcting” mistakes in the Register, and the power to do so extended to correcting the consequences of such mistakes.

That power was in some circumstances a duty.

Gold Harp’s interpretation would have meant that, wherever derivative interests have been created during the period of mistaken de-registration, that correction would be incomplete, and, in certain cases, such as this one, worthless.

In fact Paragraph 8 was entirely consistent with the opposing interpretation made by the court. Paragraph 8 permits (for the future) the “changing the priority” of an interest. The lead Appeal Judge said

“What an interest having priority means is that the owner can exercise the rights which he enjoys by virtue of that interest to the exclusion of any inconsistent rights of the owner of the competing interest. The concept of priority thus bites at the moment that those rights are sought to be enjoyed. Once that is appreciated the effect of the words “for the future” seems to me straightforward. They mean that the beneficiary of the change in priority – that is, the person whose interest has been restored to the Register – can exercise his rights as owner of that interest, to the exclusion of the rights of the owner of the competing interest, as from the moment that the order is made, but that he cannot be treated as having been entitled to do so up to that point.”

The order of the County Court Judge, restoring the respondents’ two leases in priority to Gold Harp’s new lease, meant that from then on the respondents were entitled to exercise their rights as leaseholders – mainly, to occupy the roof space – to the exclusion of Gold Harp. But until then they had no such right. For example, even if there had been any occupation by Gold Harp or its predecessors up to that point in time, the respondents could not have claimed “mesne profits” (compensation equivalent to rent) from them in respect of that occupation up to that date.

Schedule 4 openly appreciated that the rectification could prejudice the interests of third parties who had in good faith relied on the Land Register as not disclosing any previous land interests. However Paragraphs 2 and 3 of Schedule 4 (and their equivalents in the case of rectification by the Registrar), gave a special protection to a proprietor in possession, and allowed a fair balance to be struck between the competing interests in any particular case. Furthermore, Schedule 8 of the 2002 Act gave the loser the right to seek an indemnity from the public purse.

Nor were there any exceptional circumstances which would justify the court departing from the presumption in favour of rectification that would otherwise apply under paragraph 3 (3) of Schedule 4 of the 2002 Act. Not least with it being the case that Gold Harp was neither independent of the relevant family member who had devised the corporate arrangements for the freehold, and for taking over the roof space, nor had given any value for it’s interest in the new lease.

The decision construes the statute in an expansive and common sense way to bring about a just solution, safe in the knowledge that a disappointed party can, in an appropriate case, get compensation under the Land Registration indemnity provisions just mentioned.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Initial toleration of fence placement did not abandon right of way

The courts do not lightly accept that rights have been abandoned through mere disuse. There has to be pretty unequivocal evidence that they have been intentionally and permanently abandoned by the owner and any tenants of the land benefitting from them.

In the Court of Appeal case of Higson & Anor v Guenault & Anor [2014] the appellants, owned a house and garden at Lancaster (“the Higsons’ property”).

The respondents were representative members of the Bowerham Lawn Tennis Club (“the Club”). The Club was accessed by a narrow track which ran alongside the Higsons’ property (“the lane”).

The case centred on a larch lap fence mounted on concrete posts which the Higsons erected in 2004, (“the 2004 fence”).

In 2006, the Club wanted to recover the tennis courts. When the Club contracted to have the courts resurfaced, the drivers of the independent contractor lorries were unable to get down the lane to offload the material.

The issue was whether the Club had a right of way up to the hedge on the south side of the lane or whether the right of way was only up to the 2004 fence.

The court concluded that, as at 1997, the physical extent of the right of way which the Club enjoyed was up to the hedge on the south side of the lane.

The appellants claimed that the physical extent of the right of way might have been reduced by virtue of the 2004 fence. The court did not accept that argument. The mere fact that the owner of land benefitting from a right of way does not use the full extent of his right of way over the land burdened by the right of way all the time does not mean that the right of way is abandoned or modified.

It must be proved that the person having the right intends to abandon it. There was no evidence of that.

So in a victory for the Club, the court concluded that the Club’s right of way over the lane on the south side was, and remained, right up to the hedge, and up to the line of the former hedge where it had been cut down, e.g. to provide access points to the Higsons’ property.

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Public authority land allocated for recreational purposes not registrable as village green

Where land is provided and maintained by a local authority under section 12(1) of the Housing Act 1985 (“1985 Act”) or its statutory predecessors, is the use of that land by the public for recreational purposes “as of right” within the meaning of section 15(2)(a) of the Commons Act 2006 (“2006 Act”)?

The meaning of “as of right” is, the opposite of “of right” or “by right”.

If a person uses privately owned land “of right” or “by right”, the use will have been permitted by the landowner – so the use is rightful.

However, if the use of the land is “as of right”, it is without the permission of the landowner, and so is not “of right” or “by right”, but is actually carried on as though it were by right – and therefore “as of right”.

The interpolation of the small word “as” makes “as of right” effectively the opposite of “of right” or “by right”.

The law distinguishes between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand.

Use acquiesced in by the owner is ‘as of right’; acquiescence is the basis of prescription. But, use with the licence or permission of the owner is not ‘as of right.’

Permission involves some positive act or acts on the part of the owner.

On the other hand passive toleration is all that acquiescence requires.

In the recent Supreme Court case of Barkas, R (on the application of ) v North Yorkshire County Council & Anor [2014], Helredale playing field (“the Field”) was in Whitby, and owned by Scarborough Borough Council (“the Council”).

The Council laid out and maintained the Field as “recreation grounds” pursuant to section 80(1) of the Housing Act 1936, with the consent of the Minister as required by that section, the Housing Act 1957, and latterly section 12(1) of the 1985 Act.

Helredale Neighbourhood Council applied to the North Yorkshire County Council to register the Field as a town or village green under section 15 of the 2006 Act.

The Supreme Court said so long as land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreational purposes, and so use the land “by right” and not as trespassers, so that no question of them using it “as of right” could arise.

Whether user was “as of right” should be judged by “how the matter would have appeared to the owner of the land”, which must be assessed objectively. Here a reasonable local authority in the position of the Council would have regarded the presence of the public, walking with or without dogs, taking part in sports, or letting their children play, as being an exercise of the public’s statutory right to be on the land and to use it for those activities: since the Field was being held and maintained by the Council for public recreation under section 12(1) of the 1985 Act and the Acts that preceded it.

Where a local, or other public, authority has lawfully allocated its land for public use (whether for a limited period or an indefinitely), it could scarcely be appropriate to infer that members of the public have been using the land “as of right”, simply because the authority had not objected to their using the land. To find the contrary would take very unusual and exceptional facts.

In such a cases, Parliament could hardly have intended that such land would become a village green just because the public had used it for twenty years.

Not only would the local authority not be expected to object to the public use: to have done so would have been positively inconsistent with their allocation decision.

A private owner, on the other hand, would be expected to protect his or her legal rights because he has no legal duty and no statutory power to allocate land for public use, and no ability to allocate land as a village green.

So the Helredale Neighbourhood Council’s appeal failed and the land was not registerable as a Town or Village Green.

This blog has been posted out of general interest It does not replace the need to get bespoke legal advice in individual cases.

Property buyer bore restrictive covenant losses incurred after ignoring solicitor’s belated advice

In Darby & Darby (A Firm) v Joyce [2014] Mrs Joyce bought a house subject to covenants “Not to make any alteration or addition to the exterior or external appearance of the Property [Tamarisk] or the buildings thereon nor to erect any walls, fences or buildings (whether temporary or otherwise) without first obtaining the written consent of the Transferor [the Hoyles]”

Darby & Darby solicitors did not advise her, during their handling of her purchase, as to the existence of the covenants and she began internal and external alterations. Only when the Hoyles had indicated the imminence of injunction proceedings the following December did Darby and Darby tell Mrs Joyce to stop work.

Mrs Joyce ignored the advice suspending work only on the patio causing further wasted expense and her having to pay the costs of injunction proceedings.

Darby and Darby denied liability for those further expenses and costs.

The Court of Appeal agreed.

Whilst Mr Darby had not previously given comprehensive advice as to the effect of the covenants, she had understood the advice he had given her on 10 January. She was being advised to stop work and settle or else face litigation. Albeit he should have sent her away to get independent advice, the advice was good. She elected to reject it. So she was the cause of the injunction proceedings and, their costs.

So the Court of Appeal upheld the solicitors’ appeal against the lower court’s order that they compensate for those further expenses and additional costs.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

A reasonable opportunity may exist to correct Town & Village Green Application

Applications (“TGVA”) to register land as a town or village green (“TVG”) under the Commons Act 2006 (“CA 2006”) must comply with certain regulations and be filed within specific time periods.

If someone messes up their application to register a town or village green and later the deadlines for making a fresh application expire, can the original application be corrected later even though the applicant would be out of time for making a new corrected one?

In Church Commissioners for England, R v Hampshire County Council & Anor [2014] Mrs Guthrie’s application was originally lodged in 2008. Despite legion opportunities to correct it, her application was persistently defective. Problems included:

i) no date for the cessation of recreational use as required by form 44. She just said it was “a period of months during the summer of 2003”;

ii) The application failed to identify the locality or neighbourhood to which the alleged TVG related as required by form 44;

iii) The statutory declaration supporting the application was defective – irrelevant sections were not crossed out.

At the next attempt the Council pointed out Regulation 5(4) and said that unless the application was put in order they would have to reject it as not having been duly made. However, it did not impose a time limit for filing a duly completed application on this occasion as it should have done.

On 1 September 2009, the Council gave notice to the landowner affected, the Church Commissioners, of Mrs Guthrie’s TVGA as required by Regulation 5(1).

On 23 October 2009, Church Commissioners objected to the Application saying that the application as originally filed was defective and that it was not duly completed until more than 5 years from the week commencing 13 July 2003 being the date Mrs Guthrie now said the Commissioners had enclosed the land.

The court of appeal ruled that if the application was non compliant, Regulation 5(4) enabled the registration authority to reject it without having to give notice to the landowner and others.

But if the registration authority thought that the applicant could correct the errors, it can give them a reasonable opportunity to do so. If within that reasonable opportunity accorded, the applicant corrected the errors, the original application had full force and effect. So the Regulation must be retrospective.

The court thought it significant that:

-the Regulations throughout referred to just the one and the same application;

the application is given a date on the receipt. Dating the application must be for some purpose.

Somewhat cryptically the Court added:

“Furthermore there is no reason why Regulation 5(4) should restrict the opportunity for correction to a reasonable opportunity if even a correction made within a reasonable opportunity achieves nothing that would not have been achieved by a new application.”

So Regulation 5(4) provided a means for curing deficiencies in an application which did not provide all the statutory particulars, and, once an application was cured, it is to be treated as duly made on the date on which the original defective application was lodged. So the court dismissed the Commissioners appeal on that issue.

The court said that it would have been better if Parliament had provided for the landowner to receive a precautionary notice as soon as an application was received. Extensions of time must be within reason. The Regulations did not require the landowner to be given notice that the application had been received and this could only be an indication that the interval of time between the date of the application and its proper completion must be intended to be short.

Whether an applicant had had a reasonable opportunity was a question of law for the court. Parliament had not used words such as “an opportunity which in the opinion of the registration authority is reasonable”. So there was no room for the Wednesbury test here.

The court not surprisingly found that a reasonable opportunity was exceeded in this case. So the Commission’s appeal succeeded in the end.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.