House of Lords
|Session 2005 - 06|
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Oxfordshire County Council (Respondents) v. Oxford City Council (Appellants) and another (Respondent) (2005) and others
(This version contains editorial amendments made since the previous version)
The Trap Grounds
1. This appeal arises out of an application on 21 June 2002 by Miss Catherine Robinson, who lives in North Oxford, to register the Trap Grounds as a town or village green under the Commons Registration Act 1965. The site as it is today does not fit the traditional image of a town or village green. Mr Vivian Chapman, a member of the Bar expert in the law of commons and greens, described it in a report on the application which he wrote for the registration authority, the Oxfordshire County Council:
2. Not idyllic. But town and village greens are in theory survivals from the mediaeval past, established by immemorial local customs dating back to before the accession of Richard I in 1189. When counsel for the landowner in Mounsey v Ismay (1863) 1 H & C 729 protested that the fields on which the inhabitants of Carlisle claimed a custom of holding horse races in May were arable land, Martin B replied: "It must be assumed that the custom has existed since the time of Richard the First; and why may it not have been reasonable in the then state of the land?" The Trap Grounds no doubt looked very different before they were cut off, first by the 18th century canal and then by the 19th century railway, from the great north Oxford common of Port Meadow. In those days Frog Lane was called My Lady's Way and led across the Meadow to the nunnery at Godstow where Charles Dodgson and Alice Liddell picnicked and fair Rosamund, mistress of Henry II, lies buried.
3. The traditional village green is a creation of the literature of sensibility in the late 18th century. The green at Auburn in Goldsmith's The Deserted Village (1770) is the best example; a place where:
4. No doubt there were, and perhaps are, village greens like that, but the law took a more prosaic view of the matter. It was not particularly concerned with the spreading tree and the ancient turf but simply with whether there was an immemorial custom for inhabitants of a parish, borough or similar locality to use the land for sports and pastimes. As Martin B said, the custom had in theory to date from before 1189, but such antiquity could be inferred from proof that the inhabitants had in fact used the land for such purposes for a long period in the past. The inference could be rebutted only by showing that it was impossible for such a custom to have existed in 1189.
5. The early cases do not use the term "village green". In Abbot v Weekly (1666) 1 Lev 176 a custom that "the inhabitants of the vill, time out of memory, & had used to dance there at all times of the year at their free will, for their recreation" was held to be a good custom. In Fitch v Rawling (1795) 2 H Bl 393 the custom was to use some land at Steeple Bumpstead in Essex for "all kinds of lawful games, sports and pastimes at all seasonable times of the year." As Halsbury's Laws has said in successive editions (for example, 1st edn (1908), para 1247):
6. In Mounsey v Ismay (1863) 1 H & C 729 (horseracing on arable land on Kingsmoor, outside Carlisle), Virgo v Harford (unreported) 11 August 1892 (noted in Hunter, The Preservation of Open Spaces (1896) at pp 181-182) (football, rounders and cricket on 65 acres of open land on a hill outside Walton-in-Gordano in Somerset) and Lancashire v Hunt (1894) 10 TLR 310 (cricket and other games on 160 acres of Stockbridge Common Down) the courts upheld recreational customs on land which bore no resemblance to the village green at Auburn.
7. The first instance to which we were referred of the use of the term "village green" in a case or statute was in section 15 of the Inclosure Act 1845 (8 & 9 Vict c118), which provided that "no town green or village green shall be subject to be inclosed under this Act". The Act offered no definition and Mr Woolrych, in his notes on The New Inclosure Act (1846) said that the term did not refer to all the "grassy plains" on commons which were "known by the name of greens" but only to the "little patches" which "adjoin a town or hamlet and are used in the nature of easements by the inhabitants". There is no authority on the point but it seems likely that, on what would now be called a purposive construction, "town green or village green" would have been construed as Woolrych suggested, namely as any land upon which the local inhabitants enjoyed customary rights of recreation. The purpose of inclosure under the Act was after all to extinguish manorial rights of common over the land inclosed, so that it could be at the free disposal of the owner, but the Act did not extinguish customary rights: see Forbes v Ecclesiastical Commissioners for England (1872) LR 15 Eq 51. It was therefore logical to exclude land subject to customary recreational rights from the inclosure procedure.
8. The increase in the urban population in the 19th century made the preservation of open spaces a matter of great public concern. Near the large cities the traditional use of commons for depasturing animals declined and their principal use became the recreation of the people. This use was threatened by owners who recognised no interests in the land apart from those of a declining band of commoners and their own. The House of Commons Select Committee on Open Spaces near the Metropolis (1865) asked why long use of the commons by members of the public for recreation should not give rise to public rights. Why should Hampstead Heath not be the village green of London? The answer was that the law recognised only local customs. Rights of recreation could be established for the benefit of a parish or a town, but not for the public at large. London was too big. As Lord St Leonards LC said in Dyce v Lady James Hay (1852) 1 Macq 305, 309, a claim for all the Queen's subjects "to go at all times upon the appellant's property for the purpose of recreation" was:
9. The Select Committee said in its Second Report that this rule was illogical: it appeared to "rest upon no very intelligible principle". But the judges and writers insisted on applying it strictly. In Hammerton v Honey (1876) 24 WR 603 Sir George Jessel MR rejected a claim to rights of recreation over Stockwell Green on the ground (among others) that the evidence did not show that use of the green was confined to inhabitants of Stockwell:
10. In the same year as Hammerton v Honey Mr Charles Elton of Lincoln's Inn wrote a pamphlet on the bill which became the Commons Act 1876 (39 & 40 Vict c 56), in which he said by way of riposte to those who held the same views as the Select Committee:
11. Mr Elton had written a sustained attack on the same heretical doctrine in his Treatise on Commons and Waste Lands (1868) at pp 281-301. The strictest application of the locality rule was in Edwards v Jenkins  1 Ch 308, in which Kekewich J held that the inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land in Beddington. One parish, one custom. In New Windsor Corpn v Mellor  Ch 380, 387 Lord Denning MR thought that Kekewich J had gone too far. "So long as the locality is certain, that is enough". But there is no doubt that the locality rule was the pinch-point through which many claims to customary rights of recreation failed to pass.The Royal Commission
12. The Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462) drew attention (in paragraph 19) to the deterioration in many town and village greens:
13. The Commission recommended (at paragraph 404) that "as the last reserve of uncommitted land in England and Wales, common land [an expression which the Commission used to embrace both commons and town and village greens] ought to be preserved in the public interest." The principal mechanism for preservation was to be a register, maintained by county and county borough councils, which would be a definitive record of all common land and town and village greens. Most of the report is about commons, but three of its references to town and village greens should be noted:
(a) There was to be a register of common rights (because "rights exercisable over [commons] are as variable as their origin": paragraph 128) but no register of rights exercisable over greens. The purpose of greens was simply to "serve the needs of the local inhabitants for exercise and recreation in attractive surroundings": paragraph 368.
(b) Many village greens in fact originated not in customary rights but in allotments set aside for recreation in inclosure awards. The Commission said (paragraph 373) that there was "no advantage in perpetuating these distinctions" and that local authorities should be able to maintain such allotments as village greens.
(c) The Commission said that there were "probably very few villagers who will not know what they mean by 'their green' " and thought that such a claim would seldom be questioned: paragraph 369. But if it was challenged, "the burden of proof would in all probability put them to considerable difficulty and expense". This was presumably a reference to the rule that a customary right for the inhabitants of a locality to use land for "lawful sports and pastimes" must have been exercised since before 1189.
14. In order to deal with these three points, the Commission proposed (in paragraph 403) a definition of a town or village green:
15. Certain points about this proposed definition should be noted. First, there was to be a single concept of a village green, with a definition which could be satisfied in three different ways. Land allotted for recreation under the Enclosure Acts or similar statutes was to be assimilated to customary village greens. Secondly, customary village greens were defined simply as land in which the inhabitants of a parish or defined locality "have a customary right to indulge in lawful sports and pastimes". Following the earlier case law, there was no restriction by reference to the size or character of such land. Thirdly, the proposed third limb, allowing 20 years use as of right as an alternative to proof of custom since 1189, was to be confined to rural parishes and to land "wholly or mainly surrounded by houses or their curtilages". The Commission obviously felt some concern about allowing any land whatever to become a deemed village green after 20 years use by local inhabitants for sports and pastimes. They may have foreseen cases like R (Beresford) v Sunderland City Council  1 AC 889 or, indeed, this case, and thought that such land should not become a village green merely because the owner had neglected it for over 20 years.
16. Besides relieving local inhabitants of the burden of proving immemorial custom, the Royal Commission wanted to encourage local authorities or parish councils to claim village greens rather than leaving it to individual initiative. So they recommended that if a local authority or parish council formally claimed land as a town or village green, it should be provisionally registered and title should thereupon vest in the local authority. That would enable the local authority immediately to maintain the green as if it had been acquired under the Open Spaces Act 1906 and make by-laws for its management: paragraph 372. Anyone with an interest in the land could then object to the provisional registration and have the objection determined by a Commons Commissioner but otherwise it would become final.
The 1965 Act
17. The recommendations of the Royal Commission were largely, though not entirely, adopted in the 1965 Act. Section 1(1) provided for the registration of common land, town or village greens and rights of common. An application to register in proper form would be followed as of course by a provisional registration which would be publicly notified. If there were no objections, the provisional registration would become final. Otherwise, objections and disputes would be determined by Commons Commissioners and the provisional registrations confirmed or expunged accordingly. By section 4(6), applications for provisional registration had to be made before a prescribed date, which for most people was 2 January 1970. By section 1(2), after another prescribed date which, in the event, was 31 July 1970: