McLaren v. Kubiak

Transcript date:

Friday, May 11, 2007



High Court

Judgement type:

Substantive (summary)


HHJ Pelling QC

Neutral Citation Number: [2007] EWHC 1065 (Ch)


Case No: HC 05 C 02292







Royal Courts of Justice

Strand, London, WC2A 2LL



Date: 11th May 2007


B e f o r e :




(sitting as a Judge of the High Court)

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Mr Vivian Chapman QC (instructed by Mullis & Peake, Solicitors) for the Claimant

Mr Douglas Edwards (instructed by Richard Buxton, Solicitors) for the Defendants


Hearing Date: 4th May 2007

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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


His Honour Judge Pelling QC:



1. In these proceedings, the Claimant seeks a declaration that a plot of land owned by him located at the junction of Hornbeam Road and Chestnut Avenue, Buckhurst Hill, Essex (the site) is not registerable as a new green for the purposes of Section 13 of the Commons Registration Act 1965. On 22nd December 2006, the Claimant issued an application for summary judgment on its claim pursuant to CPR Part 24.. On 3rd January 2007, The Defendant issued an application for an order that the proceedings be struck out alternatively stayed pending the outcome of an application for registration of the site as a new town or village green (TVG); alternatively for a protection from costs order. These applications were heard by me together on 4th May 2007.

The Relevant Facts

2. The relevant facts are not in dispute between the parties. The Claimant entered into a contract to purchase the site sometime in April or early May 2006. The purchase price was about £5,000. On 6th May 2006, the Claimant arranged for a number of trees on the site to be felled and caused the site to be fenced off with hoarding panels. The Claimant alleges that some of the panelling was torn down by persons unknown and left lying on the ground. The Defendant denies that the panelling was torn down but accepts that it was knocked down, he alleges, by action of the wind. I am not able to resolve this issue at this stage and neither party suggests that I am able to or should. The panels were re-erected again on 8th May 2006 and again were knocked down. The land was transferred to the Claimant on 10th May 2006.

3. The Defendant is a member of and in making his applications acts with at least the moral support of an unincorporated body known as the “Roding Valley Residents Association”. On 28th June 2006, the Defendant applied to Essex County Council to register the site or at least that part of it that did not have an electricity sub-station positioned upon it as a new TVG under Section 13 of the 1965 Act.

4. On 15th September 2006, the Claimant removed what remained of the fencing because an application by him for retrospective planning permission to erect it had been refused. Signs asserting that the site was “Private Property” were erected in place of the fencing. The Claimant having been advised that he was entitled to apply to the court for a declaration that the site was or was not a new green, on 9th October 2006, the Claimant’s solicitors sent a pre-action protocol letter to the Defendant. That letter included a threat that if the application to the registration authority was not withdrawn and proceedings were necessary, the Claimant would seek his costs from the Defendant. On 4th November 2006, the Defendant responded declining to withdraw the application and on 17th November 2006, these proceedings were commenced. On 11th December 2006, an application by the Claimants for planning permission to construct a three storey development of nine 2 bedroom flats was refused.

5. It is common ground however that on 6th April 2007, Section 15 of the Commons Act 2006 came into force. Section 15 replaces the previous legislation and provides a period of grace of 5 years after the use of land by local people as of right has been ended by the land owner during which an application to register land as a TVG can be made. On 13th April 2007, as it is common ground he was entitled to do, the Defendant applied to Essex County Council under Section 15 of the 2006 Act for registration of the site as a TVG. Subject to the effect on the 1965 Act application of any order I make in these proceedings, it is common ground that both applications will be considered together by the registration authority.

6. The sole point that the Claimant seeks to make in support of his summary judgment application is that following Oxfordshire County Council v. Oxfordshire City Council [2006] 2 AC 674, in order to succeed in an application under the 1965 Act as amended by Section 98 of the Countryside and Rights of Way Act 2000, the Defendant has to prove that the land has been used as of right by local people for recreation throughout a period of 20 years immediately preceding the date when the application for registration was made – 28th June 2006. It is submitted that the Defendant is unable to satisfy this requirement by reason of the erection of the fencing to which I have referred above. I return to this issue later in the judgment. It is common ground that what the Claimant claims to be a knock out blow available to him in relation to the 1965 Act application is not available to him in relation to the 2006 Act applications for the reasons I have given.

7. In one sense the application for the protection from costs order (PCO) ought to be determined ahead of all other applications. However, if I decide to strike out or stay the proceedings, then no question of making a PCO arises. In the end all the applications were heard together but I intend to consider the applications in the order (a) the application to strike out or stay, (b) the application for a PCO and (c) the application for summary judgment.

The Application to Strike Out or Stay the Proceedings

8. The statutory context in which these applications arise is as I have said an application by the Defendant to register the site as a TVG made pursuant to Section 13 of the 1965 Act as amended by Section 98 of the Countryside and Rights of Way Act 2000. In so far as is material for present purposes, the 1965 Act as amended provides:

“1(1) There shall be registered, in accordance with the provisions of this Act … (a) land in England and Wales which is … a town or village green…

1(2) After the end of such period … as the Minister may by order determine:

(a) no land capable of being registered under this Act shall be deemed to be … a town or village green unless it is so registered …

10. The registration under this Act of any land … as a town or village green … shall be conclusive evidence of the matters registered as at the date of registration …”

13. Regulations under this Act shall provide for the amendment of the registers maintained under this Act where: … (b) any land becomes … a town or village green…

14. The High Court may order a register maintained under this Act to be amended if: … (b) the register has been amended in pursuance of section 13 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of regulations made under the Act; and … the court deems it just to rectify the register.

22(1). In this Act, unless the context otherwise requires: … “town or village green” means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or which falls within subsection (1A) of this section;

22(1A) Land falls within this subsection if it is land on which for not less than 20 years a significant number of inhabitants of any locality, or any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and … (a) continue to do so …”

Section 22(1A)(b) provides for an alternative period but no regulations have been promulgated that bring this provision into effect. The regulations referred to in Section 13 are the Commons Registration (New Land) Regulations 1969. In so far as they are relevant to the issues before me, they provide as follows:

“3(1) Where after 2nd January 1970, any land becomes … a town or village green, application may be made subject to and in accordance with the provisions of these Regulations for the inclusion of that land in the appropriate register … “

9. The 1969 Regulations provide for how an application is to be made (Regulation 3(7)), how the registration authority is to dispose of such application (Regulation 5) and how the registration authority is to consider objections (Regulation 6). The procedure set out in the regulations does not contemplate any form of enquiry in respect of disputed applications. However, local authorities have developed the procedure of holding non statutory public enquiries usually before a legally qualified inspector appointed to carry out the enquiry. This procedure has been acknowledged and approved on a number of different occasions by the higher courts. In R (Whitmey) v. The Commons Commissioners [2005] QB 282 this approach was approved in clear terms by Arden LJ at Paragraphs 29-30 and by Waller LJ at Paragraph 62. At Paragraph 30 some of the advantages of such a process are identified are identified by Arden LJ. A feature of non-statutory enquiries is that none of the parties who participate are able to obtain costs orders in respect of their costs incurred by participating in the enquiry from any of the other parties who appear at the enquiry.

10. Against that background, I now turn to these proceedings, the juridical basis for which is said to be contained the judgment of Lightman J in Oxfordshire County Council v. Oxfordshire City Council [2004] 2 WLR 1291 (Oxfordshire) as approved by the Court of Appeal in R (Whitmey) v. The Commons Commissioners [2005] QB 282 (Whitmey).

11. Oxfordshire concerned an application made under Section 13(1) of the 1965 Act to register some land as a town green based on 20 years user as provided for in Section 22(1A) of the 1965 Act. The landowner objected to registration and the registration authority caused a non-statutory public enquiry to be held. The registration authority sought guidance from the court in relation to certain issues that arose in the course of the enquiry.

12. Lightman J held that status as a green was not conferred on the land by the act of registration but was acquired independently with registration merely confirming the prior existence of the green and that it was the existence of a green, whether registered or not, that gave rise to the rights of local inhabitants ordinarily incident to the status of such a green. In that context, Lightman J said at Paragraph 6 of his judgment:

“The 1965 Act does not confer on the registration authority an exclusive jurisdiction to determine whether land has become a green. It merely provides, as an alternative to court proceedings, a new “consumer friendly” procedure to determine the question. The jurisdiction of the court to determine whether land is a green and registerable as such is not ousted. … In court proceedings the issue may arise directly, e.g. on an application for a declaration or an injunction to restrain interference with the rights of local inhabitants, or indirectly, e.g. where the existence of the green is relied on as a defence to a claim in trespass. Where the interested parties are in dispute whether the existence of a green should be determined by the court or the registration authority, the court must resolve that dispute. Most particularly, if a party (and most particularly the land owner) for any good reason wants the issue to be tried by the court, the court may be expected to incline to accede to his request but (where appropriate) on terms which provide the protection in respect of adverse orders for costs available to the other parties which would be available if the matter proceeded before the registration authority. The existence of the two alternative adjudicatory tribunals, namely the court and the registration authority, is relevant in particular when construing Section 22 of the 1965 Act …”

13. The part of his judgment to which Lightman J was alluding in the last sentence of Paragraph 6 quoted above is I think Paragraph 32 where, having referred to Sections 13 and 22 of the 1965 Act (as amended) as well as the regulations made pursuant to the 1965 Act, he said this:

“These provisions make plain that the act of registration does not confer on the land the status of a green. The status is acquired independently of the registration process. As I have already said, the question whether land has acquired the status can be determined either by the court or the registration authority. After land has acquired this status, at the option of any party interested, it is registerable at any time thereafter. Registration can only take place if a green exists: registration merely records and confirms the prior existence of the green.”

14. In my view these passages demonstrate that Lightman J’s views expressed in Paragraph 6 of his judgment were inextricably linked with his views concerned the substantive effect of the relevant statutory provisions as set out in Paragraph 32 of his judgment.

15. R (Whitmey) v. The Commons Commissioners [2005] QB 282 was concerned with the question whether an objection to registration of land as a TVG triggered a compulsory reference to the Commons Commissioners, as was contended by the applicant, or did not, as was contended by the Respondent. The Court of Appeal held that the commissioners had no jurisdiction to determine a dispute under Section 13 of the 1965 Act. However, in the lead judgment, Arden LJ said at paragraphs 26-27:

“In my judgment, there are three ways in which disputes as to whether land should be registered as a green under Section 13 can be determined. First, there can be an application to the court at any time for a declaration that a property is or is not a village green for the purposes of the Act. Second, the registration authority could itself determine the matter. Third, following registration a dissatisfied party can apply to the court for rectification of the register under Section 14(b) of the Act.

I need say no more about the first option, except that, in my judgment, it would not be an abuse of process for a land owner to go straight to court rather than await the outcome of an application for registration. The right to take proceedings constitutes an alternative to applying for registration, and on this I agree with the views to this effect expressed by Lightman J in [Oxfordshire at Paragraph 6].”

Waller LJ agreed saying at Paragraph 63:

“… because no procedures are identified in the regulations as to the way in which disputes must be resolved, I am in agreement with my Lady can see no reason why a landowner who does object to his land being registered should not in fact bring proceedings in court to obtain a declaration prior to registration.”

16. The effect of the decision in Whitmey was that the commissioners had no jurisdiction to hear contested applications made under Section 13. However, landowners anxious to avoid the implications of such an application were encouraged by the passages in the judgments of Lightman J in Oxfordshire and the Court of Appeal in Whitmey to which I have referred to issue proceedings claiming negative declarations and costs. The costs issue has become the battle ground between parties who seek to register land as a TVG (who will usually be informally organised and poorly funded local residents) and landowners. I am told that landowners perceive that if the risk of an adverse costs order can be brought to bear on applicants, then the likely outcome will be that the application to register will be withdrawn. The effect of an application by a landowner for a negative declaration is to expose applicants to adverse costs risk. I am told that since the decision of the Court of Appeal in Whitmey a number of such applications have been made and so far as is known to counsel before me the result has usually been the withdrawal of the applications to register. Mr Chapman QC who appears on behalf of the Claimant landowner accepted that these proceedings have been brought because it will enable the landowner to recover his costs if he is successful.

17. It is to be noted that at the time when the Court of Appeal delivered judgment in Whitmey the appeal in Oxfordshire had not yet been determined. Judgment on the appeal was handed down by the House of Lords on 24th May 2006 – see [2006] 2 AC 674. A majority of the judicial committee rejected Lightman J’s analysis that TVG status could be acquired independently of the registration process. The leading judgment was given by Lord Hoffmann. At Paragraph 43 of his Opinion he said:

“… Section 22 defines a village green for the purposes of the Act. When Section 13 speaks of an amendment of the register when land “becomes” a village green, it means that by reason of events which have happened after 1970, the land now satisfies the definition. That makes it registerable. But because the register is conclusive, it does not become a village green until has been registered. The Act was a Commons Registration Act, not an act to change the substantive law of commons and village greens, although as Carnwath LJ pointed out, the effect of the conclusive presumption in section 10, read with section 22, may be to create rights in respect of land which they would not have attached without registration. But one purpose of the Act was to enable buyers of land and other members of the public to ascertain from the register whether land was common land or a village green. It would defeat that purpose if unregistered greens could come into existence after the appointed day. I agree with Carnwath LJ’s analysis [at Paragraph 100 of the Court of Appeal’s judgment that]

“The 1965 Act created no new legal status, and no new rights or liabilities other than those resulting from proper interpretation of section 10. Since that section only takes effect in relation to any particular land on registration, there is no legal basis for treating that land as having acquired village green status by virtue of an earlier period of qualifying use. The mere fact that it would at some earlier time have come within the statutory definition is irrelevant if it was not registered as such””

Lord Scott agreed with this analysis (see paragraph 110) as did Lord Rodger (see paragraph 116) and Lord Walker (see Paragraph 124).

18. Against that background, I now turn to the submissions made concerning the application to strike out or stay these proceedings.

19. Mr Chapman QC submitted on behalf of the Claimant landowner that as a matter of general principle the right to apply to the courts for determination of his rights was not to be treated as being excluded by statute save where clear words are used and that no such conclusion arises from the 1965 Act as amended. He submitted that in those circumstances it could not be suggested that the proceedings constituted an abuse of process and, therefore, could not be struck out. He submitted that similar principles applied to the application to stay – whilst he accepted that ultimately the question whether to stay proceedings and if so on what terms was a matter of discretion, he submitted that it would be wrong in principle to stay the proceedings if the effect was to deprive the Claimant of access to the courts. In support of these contentions, Mr Chapman relied on Pyx Granite Co.Ltd. v. Ministry of Housing and Local Governemnt [1960]AC 260 which was followed in Ealing LBC v. RRB [1972] AC 342, as well as the judgment of Lightman J in Oxfordshire and of the Court of Appeal in Whitmey.

20. In Pyx a company sought a declaration that a proposed development was permitted by a private act and that attempts by a minister to prohibit or restrict what was proposed was of no effect. The Respondent to the application relied upon Section 17 of the Town and Country Planning Act 1947 as excluding the right of the company to apply to the Courts for such a declaration. This section (the full text of which is set out at [1960] AC 262-3) enabled a party who wished to carry out operations on land and wished to have it determined whether what was proposed would constitute development might apply to the local planning authority to determine that question. The House held that nothing in Section 17 excluded the jurisdiction of the court to grant a declaration. In his opinion, Lord Simonds said at page 286:

“The question is whether the statutory remedy is the only remedy and the right of the subject to have recourse to the courts is excluded. … It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of rights is not to be excluded except by clear words. That is … a fundamental rule from which I would not for my part sanction any departure. … There is nothing to suggest that, while a new remedy, perhaps cheap and expeditious, is given, the old and, as we like to call it, the inalienable remedy of Her Majesty’s subjects to seek redress in her courts is taken away.

Lord Goddard agreed and Lord Oaksey agreed with Lord Goddard. Lord Keith agreed with Lord Jenkins. Lord Jenkins agreeing, said, at page 302:

“Where a statute creates a new right which has no existence apart from the statute creating it, and the statute creating the right at the same time prescribes a particular method of enforcing it, then in the words of Lord Watson in Barraclough v. Brown “the right and the remedy are given uno flatu and the one cannot be dissociated from the other”. As Lord Herschell put it in the same case the party asserting the right cannot “ claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right””.

21. Barraclough v. Brown [1897] AC 615 was a case which concerned a power given by a private Act to remove sunken vessels and to recover the costs of so doing from the owners of the vessel “… in a court of summary jurisdiction”. A claim was brought in the High Court for the recovery of expenses incurred in removing a sunken vessel and the claim was met with an assertion that the High Court had no jurisdiction to entertain the claim. The Claimants sought to meet that objection by asserting that even if they were not entitled to recover the costs in the High Court action they were at all events entitled to come to the High Court for a declaration that on true construction of the Act they were entitled to recover such expenses. Lord Herschell rejected this last contention saying “ … it would be very mischievous to hold that when a party is compelled by statute to resort to an inferior court he can come first to the High Court to have his right to recover – the very matter relegated to the inferior court – determined. Such a proposition is not supported by authority and is, I think, unsound in principle”. The other members of the House agreed. In my judgment, this is a significant point in this case because here the relief sought by the Claimant is not a declaration that the land is not a green (something which following the majority of the House of Lords in Oxfordshire depends exclusively and conclusively on registration) but rather for a declaration that the site is not a registerable new green, meaning is not capable of being registered as such.

22. It was submitted by Mr Edwards that the reasoning of Lightman J in Paragraph 6 of his judgment in Oxfordshire and the reasoning of the Court of Appeal in Whitmey depended upon it being believed that in law once a piece of land became a village green it was always thereafter a village green. However, as the majority held in the House of Lords appeal in Oxfordshire that understanding was misplaced and in the result a piece of land cannot become a green unless it is registered as such. Registration can only occur following an application in accordance with the applicable regulations and it is not open to a court to decide the question.

23. I accept that there is a fundamental difference between the analysis of Lightman J and that of the majority of the House of Lords in Oxfordshire. I also accept that there is no power under the Act that enables the Court to require a registration authority to register (or not register) land as a TVG, but merely a power under Section 14(b) to rectify the register once registration under the Act has become final in relation to any particular piece of land. It seems to me that the analysis of the House of Lords in Oxfordshire means that (to use the examples used by Lightman J in Paragraph 6 of his judgment) a defence to a claim in trespass would only be available if the land in question had been registered as a TVG at the time and likewise the right of local inhabitants to an injunction would depend not on an enquiry by the court into whether the land satisfied the criteria necessary to establish a TVG but merely on whether it had been registered as such. Similar considerations must necessarily apply to an application for a declaration. The question whether a given piece of land is or is not a TVG depends upon registration not upon proving the constituent elements on an application for a declaration. After the expiry of the statutory cut off date, land can only become a TVG if it becomes registered as such and the only way that can occur is pursuant to the 1969 Regulations – see Section 13(b). Regulation 3 provides for an application to be made subject to and in accordance with the Regulations. These two provisions when read in combination mean in my view that after 2nd January 1970, land can only becomes a TVG if it is registered as such and it can only be registered as such following an application in accordance with Regulation 3. This being so, in my judgment the attempt to obtain a declaration that the site is not registerable as a new TVG is objectionable for the reasons identified by the House of Lords in Barraclough v. Brown (ante).

24. In my view there are sound practical reasons that support this approach. First, whatever the effect of a decision in proceedings such as this on the Claimant and Defendant in relation to the administrative process conducted by the registration authority, one thing is clear – any decision reached by the court will not be binding on either the authority or any other local inhabitants other than the Defendant. Secondly, the process which has developed in relation to contested applications to registration authorities is flexible in that hearings take place at or near to the application land and can take place at times which are most convenient to people who live in the locality. Thirdly, the process is relatively cheap in that each party taking part meets its own costs and the registration authority meets the cost of staging the non statutory enquiry. Finally no question of excluding a party from access to the courts in my view arises - any party who is dissatisfied with the decision of the registration authority potentially has two routes available to him in which to attack that decision – either judicial review and/or an application to this court made under section 14(b) of the 1965 Act.

25. In my view, the effect of the opinions of the majority of the House of Lords in Oxfordshire lead me to the conclusion that Lightman J’s statement of principle in Paragraph 6 of his judgment at first instance in that case is no longer good law and that the comments of the Court of Appeal in Whitmey no longer apply for that reason. For those reasons, I conclude that these proceedings should be struck out as an abuse of process or stayed.

26. Had I not been satisfied that the reasoning in Paragraph 6 of Lightman J’s judgment no longer applied, I would have refused to strike out or stay the proceedings essentially for the reasons identified by the House of Lords in Pyx.


27. In light of the conclusions I have reached concerning the application to strike out or stay the proceedings, this issue strictly speaking does not arise. However, it was fully argued and I set out my conclusions in relation to it shortly.

28. It was common ground before me that the principles that apply to the making of a PCO are to be found in R (Corner House research) v. Secretary of State for Trade and Industry [2005] 1 WLR 2600 (Corner House). In that case the Court of Appeal laid down detailed criteria to be applied in deciding whether or not such an order should be made. However, more fundamentally, the Court of Appeal emphasised that such orders were highly exceptional and were not available in private law actions – see in particular Paragraphs 45 and 69 of the judgment of the Court delivered by Lord Philips MR.

29. It is common ground before me that these proceedings are private law proceedings. It was however submitted by Mr Edwards that Lightman J had recognised that proceedings of this type are exceptions to the general rule that applies to private civil litigation. In my view the difficulty about is that the judgment of both Lightman J and that of the Court of Appeal in Whitmey were delivered prior to the delivery of the judgment of the Court of Appeal in Corner House. Further the issues concerning PCOs were not argued before either Lightman J or the Court of Appeal in Whitmey. In those circumstances, in my view, there is nothing in either the judgment of Lightman J or the judgments of the Court of Appeal in Whitmey that would entitle me to depart from the reasoning in Corner House, which is plainly binding on me.

30. In the course of the hearing I was handed a copy of “Litigating The Public Interest” published by Liberty and The Civil Liberties Trust. The report contains a comprehensive analysis of all the decided cases relating to this issue. It is noteworthy that in Weir v. Secretary of State for Transport (No.1) [2005] All E.R. (D) 274, Lindsay J concluded that the Corner House principles applied only to public law challenges and that in R (Goodson) v. Bedfordshire and Luton Coroner [2005] EWCA Civ 1172, the Court of Appeal concluded that a private litigant who had sufficient standing to apply for judicial review would usually have a private interest in the outcome which would preclude the Corner House principles from applying. These cases are referred to in the Liberty Report at paragraphs 57 and 58-9 respectively. They were not cited to me. The only case which provides some support for Mr Edwards’ contention on this issue is Wilkinson v. Kitzinger [2006] EWHC 835 (Fam), a decision of Sir Mark Potter P. An order was made in that case apparently on the basis of an agreement between the parties that the proceedings were “quasi-public” and that the court should apply the Corner House principles. This case was not cited to me but it is summarised in Paragraph 62-63 of the Liberty report. It would appear that the outcome in that case depended upon a concession not made in this case.

31. In my view it would be wrong in principle for me to depart from the very clear statement of the law contained in Corner House. Aside from the fact that this is private litigation, I do not see how the detailed criteria identified in Paragraph 74 of the judgment in Corner House can be regarded as satisfied in a case such as this. The first requires that the issues raised be of general public importance. I do not see how an application for the benefit of a limited class of local inhabitants could fulfil this requirement. The Defendant plainly has a private interest in the outcome and so cannot satisfy the third criterion. I know nothing of the financial position of the parties in order to be able to reach a conclusion concerning the fourth criterion not do I know anything about the likely costs of the proceedings. In my judgment it would be wrong to make a PCO both as a matter of principle because this case is a private law case and also on the facts of this particular case because the relevant criteria applicable to the making of a PCO have not been made out.

32. Had I been persuaded to make an order the order I would have made would have been one under which neither side would be liable for the other’s costs. This type of Order replicates the position that would apply where a non statutory enquiry was being conducted by a registration authority.

The Summary Judgment Application

33. In light of my conclusions concerning the application to strike out or stay, it is probably undesirable that I say much concerning the application for summary judgment. However, it is common ground that in order to satisfy the requirements of Section 22(1A) of the 1965 Act user as of right has to be established and what is more continuous user as of right down to the date when the application is made. The user established must be user nec vi, nec clam, nec precario”- that is not by force, or stealth or licence of the owner.

34. Here, the Claimant alleges that user after 6th alternatively 8th May was by force since the hoardings were pulled down on each occasion in order that access to the site could be obtained. Since the application for registration was not made until the end of June, the requirement to user as of right for 20 years ending on the date when the application is made cannot be made out. In my view the outcome on this issue depends on a finding of fact as to what happened to the hoarding. The Defendant maintains that the panels were knocked over by action of the wind. Given the nature of the panels, this is possible. The Claimant denies that the panels were knocked over by the wind. I do not see how I can resolve that issue on an application for summary judgment. Further, if, as the Defendant alleges, those who used the land after the hoarding fell or was knocked over, did so without knowing (if such be the case) that it had been knocked over by persons unknown, it is arguable that such user would not be user by force.



35. For the reasons set out above I will strike out the claim. Had I come to the conclusion that the claim should not be struck out or stayed, I would not have made a PCO but I would have refused to grant summary judgment.