Two plots of open land had been registered as town or village greens under the Commons Registration Act 1965 on the basis that they had been used by local inhabitants for sports and pastimes as of right for at least 20 years. Some years after the registrations were granted, the owners of the plots sought rectification of the register on the basis that the criteria for registration had not been met.
Development plans existed in respect of both plots, one of which had been designated for new housing in the relevant local plan. In both cases the High Court accepted that the registrations had been wrongly granted on the basis that one of the plots had not been used by residents of a single locality and the other had not been used by residents as of right.
However, local inhabitants argued that the registrations should nevertheless be upheld due to the long delays in seeking rectification. In the first case, the time between registration and the application to rectify was more than 12 years; in the second it was more than four years.
In the first case, a judge rectified the register on the basis that little harm or detriment had been demonstrated by the residents. However, the Court of Appeal, by a majority, subsequently overturned that decision and ruled that, given the lengthy delay, it would be unjust to rectify.
In the second case, a judge granted rectification on the basis that residents had been enjoying rights over the land which they should never have had. That decision was upheld by the Court of Appeal. The decisions in both cases were challenged before the Supreme Court by, respectively, the landowner and a residents' campaign group.
In upholding the landowner’s appeal, and dismissing that of the campaign group, the Supreme Court found that, although delay was a material factor to be taken into account, it was just to grant rectification in both cases. On the particular facts of each case, it had not been shown that the delay had caused significant detriment to residents or others with an interest in the status of the plots.
Giving guidance for the future, the Court noted that the crucial factor was the level of detriment or prejudice that may or may not have resulted from delays in seeking rectification. Any detriment suffered by local inhabitants was unlikely to be weighty given their exercise of rights that they should never have had.
However, the Court emphasised that prejudice to others – including those who had bought property in reliance on the register and local authorities who had allocated relevant land for development – should also be taken into account, as well as any detriment to a fair hearing caused by the lapse of time.