Legal Update
Autumn 2012

Article 1 - Upon the Village Green Oh! - Robin Belben

A trio of recent cases has shed yet more light on various aspects of the law relating to the registration of land as a “town or village green” under the Commons Act 2006, as it now is.

In Newhaven Port v East Sussex County Council [2012] EWHC 647, the Administrative Court, held that the land did not need to be “green” or even look like a “village green” or even be above-water for at least part of the time! In that case, the Newhaven Port Authority owned a tidal beach which as part of the operational land of the Port, and regulated the use of the beach by means of (unpublished) bye-laws. The beach had no fixed boundaries and was at least in part covered by water at high tide. Local people used it as a beach for recreational purposes at all states of the tide, obviously more so at low water.

Ouseley J. held that none of this mattered. It was the “nature, quality and duration” of the use by the public which counted, not the fact that part at least of the beach was covered by the sea at high-tide. The public had used it for 20 years “as of right” and the fact that there were in force bye-laws did not matter if no notices were put up. The Crown, as owner of the tidal foreshore, was in no privileged position.

However, use by the public might interfere with the statutory duties of the port authority and that was decisive against registration.

In Gill Taylor v Dorset County Council [2012] EWCA Civ 250 the Court of Appeal upheld a judge’s decision to de-register as a village green some open grazing land which had been registered many years before under the 1965 Act. The land was crossed by foot-paths from which members of the public had strayed and used the land for “lawful sports and pastimes”! The land owner had put up signs but these had been torn down and some people had used the land not knowing of the signs.

In 2004 a new owner bought the land at a knock-down price (because of its registration) and then applied to cancel the registration in 2006! The judge decided in the land owner’s favour and the Court of Appeal upheld him by majority. It decided (i) user “as of right” meant without force, stealth or permission. If a land owner put up a suitably worded sign in a visible position that was enough, even though the signs were torn down subsequently. No proof of force was necessary. If people then used the land without seeing the signs the question would be whether the land owner had done enough.

In this case the judge held that he had, and the Court of Appeal upheld his decision to de-register.

By a majority, the Court held that rectification so as to de-register the land was correct because rights which should never have been on the register in the first place should be removed, even if this had been on the register for many years. The delay was only relevant if third party rights had been affected or decisions taken on the basis that the land was registered which in this case they had not. The fact that the new land owner was getting an uncovenanted windfall apparently did not matter!

In contrast the same Court of Appeal, on the same day, handed down its decision in Adamson v Paddico [2012] EWCA Civ 262. In that case an area of grassland near Huddersfield was registered in 1997. The land owner began a claim to de-register but this was dismissed for want of prosecution in 2000. Part of the land was subsequently transferred and a new claim to de-register was made in 2012. The judge granted the application and the Court of Appeal allowed the appeal (again by a majority) on the ground that the 12 year delay in seeking to de-register was fatal to the claim. While it was desirable to correct errors the delay in this case was so excessive as to make it unjust to de-register!

It should however be noted that the Court upheld the judge’s decision that use had to be by the inhabitants of a single “locality” or “neighbourhood” within the Act whose boundaries were readily identifiable. In other words general use by the public, no matter where they came from, is insufficient.

How there last two decisions will be reconciled remains to be seen! As for the concept of a “green” what next – maybe you should think about the Isle of Wight tidal cricket match!!

Article 2 - Subjectivity of Redundancy Criteria: -

College Chambers are delighted to announce that we have been accredited to BARMARK. BARMARK is the Bar Council's "kite mark" scheme and is managed by the British Standards Institute. Accreditation is based upon the Practice Management for the Bar Guidelines and Standards and the associated Quality Assurance Checklist.

Accreditation to BAR MARK is an assurance to solicitors and clients that Chambers is run effectively and efficiently. Accreditation is only awarded to chambers with the highest standards of practice and administration. We are one of only a few sets of chambers who hold this prestigious award.

Wayne Effeny, senior clerk, said "We strive to deliver an exceptional level of service living up to our motto ‘reputation through commitment’. Being awarded BARMARK following an independent assessment confirms that we are achieving the highest possible standards. Every aspect of our structure has come under intense scrutiny as part of this assessment and we are particularly proud of this achievement"

Article 3 - Expert Evidence- No Substitute for Reasons - David Pugh

In the case of A Local Authority v DS [2012] EWHC 1442 (Fam) (’LA v DS’), Sir Nicholas Wall the President of the Family Division has bought into sharp focus the blurring of the separation of powers in family law.

The decision in LA v DS concerned the refusal for prior authority to instruct an independent social worker, at a rate of £50 per hour, to perform a parenting and risk assessment. The current rate set by the Community Legal Services (Funding Amendment No 2) Order 2011, restricts payment to an ISW working out of London at £30 per hour. Ostensibly expert reports are expensive - quotes for the ISW in LA v DS ranged from £4800 to £5229. Nonetheless it can be argued they are cost effective, often having a significant influence on parties’ decision making, resulting in an early determination of the case and reducing overall costs.

It is puzzling that an administrative body such as the LSC can, by way of their refusal to grant prior authority for the instruction of an independent expert on family cases, render a judicial decision, taken in the best interests of a child, impotent. In their defence the LSC appears to be under some pressure due to the significant increase in applications for prior authority - from 216 in November 2011 to 1855 in April 2012.

An application for Judicial Review of a refusal of funding by the LSC is of course an option if the decision is considered to be Wednesbury unreasonable; or on the basis of another public law reason if, for example, lawyers cannot find experts who will work at the statutory rate. This approach is costly, and often not within the timetable of the child. The issue then, is how can practitioners avoid delay and assist the court and the Child by ‘persuading’ the LSC to grant prior authority for experts. Rule 25.1 of the Family Procedure Rules 2010 will shortly be amended to insert the term "necessary" for "reasonably required". It is clear that a party wishing to instruct an expert will be expected to justify why the proposed expert evidence cannot be provided by Social Services (as part of a core assessment) or by the Children’s Guardian.

The President throughout his guidance emphasised that there is “no substitute for reasons”. Reasons need not be elaborate and can form part of the preamble, but must be sufficient to inform anyone reading them why a tribunal has reached a decision.

Helpfully the President provides those drafting orders with assistance by way of an appropriate form of wording. The tried and tested phrase "the cost thereof is deemed to be a necessary and proper disbursement on [a named individual's] public funding certificate" should no longer be used. He notes that the words do not bind the LSC, and recommends that tribunals (or practitioners) drafting orders use the following wording:

a) The proposed assessment and report by X (as set out in paragraph 2 of this order) are vital to the resolution of this case.??
b) This case is exceptional on its facts.??
c) The costs to be incurred in the preparation of such reports are a wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case.??
d) The court considers X's hourly rate of £y and the estimated costs of the assessment report to be reasonable in the context of (his) qualifications, experience and expertise.??
e) The field in which X practises, and the particular expertise which (he) brings to bear on cases involving (subject) are highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at a lower fee.?
?f) The court considers that any further delay in order to give the LSC the (further) opportunity to consider an application for prior authority to incur the costs of the proposed amendment or report would be wholly outside the child(ren's) timescale(s).

It is hoped that use of this wording, accompanied by the appropriate reasons will prevent the significant delays inherent with a refusal of funding.

As a result the LSC will be on notice that a report is ‘necessary,’ and the merits of such a report have been fully considered by the court. An additional benefit, as Sir Nichollas Wall notes at paragraph 45 (viii) of his judgment, is that when a tribunal provides reasons “by like token, it behoves the LSC to deal with such applications promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its reasons for its decision.” It may well follow therefore that drafting upwards of 1855 clear cogent reasons per month, may inhibit the LSC’s perceived tendency to generate automatic and unjustified refusals to grant prior authority.

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