Leeds landowner loses town green appeal

A landowner whose area of land on the outskirts of Leeds has been registered as a town green, and protected from development, today lost its latest appeal against the decision.

Last December,  Leeds Group, which owns 2.2 hectares of the site known as Yeadon Banks, in Yeadon, lost its Court of Appeal claim that Leeds City Council, which owns the rest, was wrong to designate it as a town green for the enjoyment of local residents, thereby robbing it of lucrative development potential and drastically reducing its value.

However, it was given permission to bring a second Appeal Court challenge on the grounds that the new regime for town and village greens introduced by the 2000 Countryside and Rights of Way Act is in breach of the 1998 Human Rights Act because of its "retrospective effect" in this and other cases.

In a highly complex legal test case defended by government lawyers on behalf of the environment secretary, as well as by Leeds City Council, Leeds Group claimed that provisions of the 2000 Act, which altered the requirements for establishing a village green, were incompatible with the Human Rights Act and should not be allowed to stand.

Under the 2000 Act, land can be registered if,  for not less than 20 years, a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes on it as of right. This replaced a more restrictive test, under the 1965 Commons Registration Act, which referred to "the inhabitants of any locality" and led to a number of disputes over what this meant.

The law has since been clarified by the 2006 Commons Act, but the definition introduced by the 2000 Act remains in force.

Leeds Group claimed that the 2000 Act, which came into force at the end of January 2001, should not have had retrospective effect and that, when calculating the 20 years of use required to establish a town or village green, Parliament cannot have intended that time prior to the change in the law should be counted.

It says that on the facts of this case, the relevant period ran from July 1984 and that, in finding that the required 20 years of use had been shown, the council included 17 and a half years before the change in the law.

As a result, it claims that for every day of those 17 and a half years, the law was not what it appeared to be, and that the 2000 Act had the wrongful effect of rewriting legal history. It sought a declaration that, as a result, the act is incompatible with the Human Rights Act.

However, Lord Justice Sullivan rejected the latest appeal, ruling that the change was prospective, not retrospective. He said that the two sections were "clear and unambiguous" and that the proposition that Parliament intended the operation of the "neighbourhood limb" they introduced to be deferred for 20 years was "absurd".

He said: "If the impact of the new policy as a whole, including the requirement for continued use and the inability to make an application based upon the new neighbourhood limb until 30 January 2001, is considered, it was prospective, not retrospective, in its effect when enacted on 30 November 2000.

Lady Justice Arden added that landowners had been given two months between the enactment of the 2000 Act and it coming into operation to take steps to protect their rights, and that, whilst this was a "very short" and "potentially arbitrary" period, this was not unfair in this case.

She said: "Having considered the various factors on each side of the scale, I am satisfied that, in the particular circumstances of this case, which were regarded by Parliament as urgently requiring a legislative solution, the period of two months was sufficient to enable a fair balance to be struck."

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