Highways & Village Greens

March 8th, 2012 by James Goudie KC

Dedication of Highway

The dedication to the public by a local highway authority of highways was inferred by the Privy Council in J & O Operations Ltd v Kingston & St Andrew Corporation [2012] UKPC 7, relying (para 13) on Espley v Wilkes (1872) LR 7 Ex 298 and (para 14) Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620.

Village Green

In Adamson v Kirklees MBC [2012] EWCA Civ 262 the Court of Appeal held, allowing an appeal from Vos J, that although land should not have been registered as a village green (because, agreeing with Vos J, it had not been used by the inhabitants of a single locality), it would not be just to rectify the public register after a delay of over 12 years in seeking rectification. Sullivan LJ said (para 37):

“While Parliament did not prescribe a time limit for making applications under section 14, it must have envisaged that persons adversely affected by an erroneous amendment of the register would take reasonably prompt action ton secure rectification, and would not sleep on their rights. All other things being equal, the longer the delay in seeking rectification the less likely it is that it will be just to order rectification”; and (para 39)

“While it must be desirable, in principle, that errors in a public register should be rectified, the delay of over 12 years in seeking rectification of the register in this case was, by the standards of any reasonable legal process, so excessive as to make it not just to rectify the register.”

Patten LJ, on the other hand, could see no injustice (para 44) in a deprivation of rights to which one was never entitled, absent (para 43) some “significant or material prejudice attributable to the delay” which makes it just to refuse to restore to the owner of the land its full legal rights. Patten LJ thought (para 45) that there was a public dimension which militated strongly in favour of ordering rectification of the register. Carnwath LJ, however, agreed (para 66) with Sullivan LJ’s reasoning and conclusions. Carnwath LJ (at para 67) said that, on the basis that ECHR Art 1/1 was engaged:

“The administrative process of amendment of the register does not meet the requirements for independent determination under article 6. The rectification procedure fills the gap. I agree that for that reason a precise analogy with judicial review time-limits is not appropriate.”

He continued (at para 68):

“However, article 6 does not require the right to be kept open indefinitely. I agree with Sullivan LJ that the public nature of the register requires the balance to include considerations of public administration, … Although that is provided for expressly in the judicial review legislation, I see no reason why the concept of “justice” under the 1965 Act should not be wide enough to include similar considerations. Justice in this context need not turn on proof of individual prejudice, but is wide enough to cover general prejudice to the public (including planning authorities) who are entitled to rely on the register to order their affairs, public and private. … It is probably not appropriate for the court to lay down a specific time-limit, where Parliament has declined to do so. But for my part, I would be regarding a delay beyond the normal limitation period of six years as requiring very clear justification. On the facts of this case, I agree with Sullivan LJ that on any view the delay was too long.”

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