ON APPEAL FROM HIGH COURT
HH JUDGE BEHRENS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE TOMLINSON
| LEEDS GROUP PLC
|- and -
|LEEDS CITY COUNCIL
|- and -
|SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
||First Interested Party
|- and -
||Second Interested Party
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Ms Clare Parry (Instructed by Leeds City Council) for the Respondent
Mr David Forsdick (instructed by Treasury Solicitor) for the First Interested Party
Mr Robert Williams (instructed by Zermansky and Partners) for the Second Interested Party
Hearing dates: 25 & 26 October 2011
Crown Copyright ©
Lord Justice Sullivan:
The 2000 Act
"town or village green' means [a] land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or [b] on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or [c] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years"
"98. – (1) Section 22 of the Commons Registration Act 1965 (interpretation) is amended as follows.
(2) In subsection (1), in the definition of 'town or village green' for the words after 'lawful sports and pastimes' there is substituted 'or which fall within subsection (1A) of this section'.
(3) After that subsection there is inserted –
'(1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either –
(a) continue to do so, or
(b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.
(1B) If regulations made for the purposes of paragraph (b) of subsection (1A) of this section provide for the period mentioned in that paragraph to come to an end unless prescribed steps are taken, the regulations may also require registration authorities to make available in accordance with the regulations, on payment of any prescribed fee, information relating to the taking of any such steps."
"103. – (1) The following provisions of this Act come into force on the day on which this Act is passed –
Section 81(2) and (3),
this section, and
(2) The following provisions of this Act come into force at the end of the period of two months beginning with the day on which this Act is passed –
section 1 and Schedule 1,
sections 3 to 11 and Schedule 3,
sections 15 to 17,
Chapters II and III of Part I,
sections 40 to 45
section 58 and 59,
sections 64 to 67 and Schedule 7 (apart from paragraphs 6 and 7 of that Schedule),
Part III (apart from section 81(2) and (3)), and Schedules 8, 9, 10, 11 and 12 and Parts III and IV of the Schedule 16.
(3) The remaining provisions of this Act come into force on such day as the Secretary of State (as respects England) or the National Assembly for Wales (as respects Wales) may by order made by statutory instrument appoint.
(4) Different days may be appointed under subsection (3) for different purposes or different areas.
(5) An order under subsection (3) may contain such transitional provisions or savings (including provisions modifying the effect of any enactment) as appear to the Secretary of State or the National Assembly for Wales (as the case may be) to be necessary or expedient in connection with any provision brought into force by the order."
"(1A) Land falls within this subsection if it is land on which for not less than 20 years beginning in the case of limb 2 below on or after 30th November 2000 a significant number of the inhabitants of any locality (limb 1) or of any neighbourhood within a locality (limb 2) have indulged in lawful sports and pastimes as of right and either – [(a) or (b), as set out in paragraph 6 above]."
"119. Although the issue was presented as one of the retrospective effect of section 98 of the 2000 Act, that is to ignore its true nature. I refer to, without repeating, the lengthy observations on this topic in my speech in Wilson v First County Trust Ltd (No 2)  1 AC 816. Put shortly, there is nothing in the 2000 Act to rebut the powerful presumption that section 98 ought not to be understood as affecting the substantive law in relation to events taking place before it came onto force: Wainwright v Home Office  QB 1334, 1345, para. 27 per Lord Woolf CJ. In any event, despite the language he used, that was not really the point Mr. Edwards was making. The true question raised by his submission is whether section 98 applied generally or applied only to situations which arose after it came into force, with the result that the unamended version of section 22 continued to apply to other cases. If section 98 applied generally, then the amended version of section 22 applied, for the future, to situations which were already underway when it came into force.
120. In effect, Mr. Edwards was arguing that section 98 did not apply generally but applied only to situations where the relevant activities of the inhabitants occurred after 30 January 2001. Accordingly, for an indefinite period of decades or more into the future, in making an application based on activities before that date, an interested party could rely on the unamended version of section 22. Down all those decades, as he accepted, two different systems would operate in parallel, one which required the applicant to prove the continuation of the sports and pastimes and one which did not. I would reject the submission.
121. First, there is nothing in section 98 or in any other provision of the 2000 Act to limit its application in this way. Moreover, Mr. Edwards's interpretation would mean that Parliament had chosen to postpone the operation of the amendment indefinitely in what might well be a significant number of cases. He did not advance, and I am unable to see, any reason why Parliament would have intended that the new policy which it was enacting should not apply to all applications made after section 98 came into force. Indeed, the administrative and other complications of operating two different systems afford powerful reasons for supposing that Parliament would have intended that there should be only one.
122. The position might have been different if it could be said that the amendment to section 22 prejudicially affected a vested right of the applicant. But, by the time the amendment to section 22 took effect, the applicant had not applied to have the register amended. Like others in a similar position, she simply had a right to apply which she had not yet exercised. And, since the purpose of legislation is to alter the existing legal situation, there is no presumption that it will not alter rights which individuals have, but have not exercised: cf Abbott v Minister for Lands  AC 425, 431, per Lord Herschell LC. On the contrary, like everyone else, those interested in having the register of village greens amended ran the risk that sooner or later Parliament might intervene to change the law regarding such applications. That, and nothing more, is what happened when Parliament enacted section 98 and amended section 22: applicants found that they now had to meet an additional requirement before they could have the register amended. No question of vested rights arises.
123. I am accordingly satisfied that section 98 applied generally and that the amended version of section 22 applied to situations which were already underway when section 98 came into force, including situations where an application was made after that date on the basis of the inhabitants' activities before that date. Therefore the amended version of section 22 applied to Miss Robinson's application. It is unnecessary to express any view on the rather different issue of applications which had been made but which had not been determined when section 98 came into force."
"It is well established that the presumption against retrospective legislation does not necessarily apply to an enactment merely because 'a part of the requisites for its action is drawn from time antecedent to its passing'……. " See Secretary of State for Social Security v Tunnicliffe  2 A11 ER 712, per Staughton LJ at p. 723h.
"In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended."
How great is the unfairness in the Appellant's Scenario A above?
(a) Sections 98 and 103(2) are clear and unambiguous. Adapting the words of Lord Rodger in the Trap Grounds case, the new policy in subsection (1A) applies in its entirety to all applications made on or after 30th January 2001.
(b) Even if sections 98 and 103(2) were ambiguous, the proposition that Parliament intended to defer the operation of one element of the new policy, the new neighbourhood limb, for a period of 20 years after enactment, is absurd.
(c) 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 30th January 2001) is considered it was prospective, not retrospective, in its effect when enacted on 30th November 2000.
(d) If and insofar as there was an element of retrospectivity, there was no real likelihood of unfairness to landowners; any possibility of unfairness is purely hypothetical, and there was no unfairness on the facts of the present case.
Lord Justice Tomlinson:
Lady Justice Arden: