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Two Important New TVG Cases

Douglas Edwards QC

In the past few weeks the Chancery Division has decided in two separate cases two important unresolved issues concerning town and village greens. In High Peak Borough Council v Derbyshire County Council (4 April 2007) Judge Pelling QC (sitting as a judge of the Chancery Division) decided that, on an application under s.14 of the Commons Registration Act 1965 to rectify the register after land had been registered as a green, the court did not have power to remit the matter back to the registration authority. The registration authority were, in effect, functus officio once they had disposed of an application. In so doing, he held that Sullivan J. had been wrong in that respect in Cheltenham Builders. In Stephen McLaren v Laurence Kubiak [2007] EWHC 1065 (ch) (11 May 2007) the same Judge held that, following the decision of the House of Lords in the Trap Grounds case, a landowner could now no longer apply to the court for a declaration that his land is not registrable as a green. The Judge held that since land only becomes a green through the process of registration, the courts had no jurisdiction in respect of the process.

Douglas Edwards acted for the registration authority in the High Peak case and Mr. Kubiak, who was the successful defendant, in the McLaren decision. He was instructed by Lisa Edwards of Derbyshire County Council in the High Peak cases and by Susan Ring of Richard Buxton Solicitors in the Kubiak case.