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Judgments - Oxfordshire County Council (Respondents) v. Oxford City Council (Appellants) and another (Respondent) (2005) and others

HOUSE OF LORDS

SESSION 2005-06

[2006] UKHL 25

on appeal from[2005] EWCA Civ 175

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

Oxfordshire County Council (Respondents) v. Oxford City Council (Appellants) and another (Respondent) (2005)

Oxfordshire County Council (Respondents) v. Oxford City Council (Respondents) and another (Appellant) (2005)

Oxfordshire County Council (Appellants) v. Oxford City Council and another (Respondents) (2005) (Conjoined Appeals)

 

Appellate Committee

 

Lord Hoffmann

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

 

Counsel

For Oxford City Council

Charles George QC

Philip Petchey

(Instructed by Oxford City Council)

For Catherine Mary Robinson

Douglas Edwards

Jeremy Pike

(Instructed by Public Law Solicitors)

For Oxfordshire County Council

George Laurence QC

Ross Crail

(Instructed by Oxfordshire County Council)

 

Intervener

Jonathan Karas and James Maurici (Instructed by Department for Environment, Food and Rural Affairs)

 

 

Hearing dates:

27, 28, 29, 30 March and 3 April 2006

 

on

WEDNESDAY 24 May 2006

(This version contains editorial amendments made since the previous version)

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Oxfordshire County Council (Respondents) v. Oxford City Council (Appellants) and another (Respondent) (2005)

Oxfordshire County Council (Respondents) v. Oxford City Council (Respondents) and another (Appellant) (2005)

Oxfordshire County Council (Appellants) v. Oxford City Council and another (Respondents) (2005)

(Conjoined Appeals)

[2006] UKHL 25

LORD HOFFMANN

My Lords,

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:

    "The Trap Grounds are nine acres of undeveloped land in North Oxford. They lie between the railway to the west and the Oxford Canal to the east. About one third…is permanently under water…This part…is usually called 'the reed beds'. [They] are inaccessible to ordinary walkers since access would require wading equipment. The other two thirds ['the scrubland']…are much drier and consist of some mature trees, numerous semi-mature trees and a great deal of high scrubby undergrowth, much of which is impenetrable by the hardiest walker.… The scrubland is noticeably less overgrown at the southern end and there is a pond and wet areas in the central eastern part of the scrubland. Throughout the dry parts of the scrubland there are piles of builders' rubble, up to about a yard high, which are mostly covered in moss and undergrowth. The Trap Grounds are approached from the east by a bridge…over the canal. From the bridge a track, known as Frog Lane, leads along the northern edge of the reed beds and gives access to a circular path around the scrubland. Off this circular path there are numerous small paths through the undergrowth. Some peter out after a few yards. Some lead to small glades and clearings. I estimate that a total of about 25% of the surface area of the scrubland is reasonably accessible to the hardy walker."

    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.

    Village greens

    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:

    "toil, remitting, lent its turn to play,

    And all the village train, from labour free,

    Led up their sports beneath the spreading tree!

    While many a pastime circled in the shade,

    The young contending as the old survey'd;

    And many a gambol frolick'd o'er the ground,

    And sleights of art and feats of strength went round;

    And still, as each repeated pleasure tired,

    Succeeding sports the mirthful band inspired…"

    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):

    "the essential characteristic of a town or village green is that by immemorial custom the inhabitants of the town, village, or parish should have acquired the right of playing lawful games thereon and enjoying it for purposes of recreation."

    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:

    "a claim so large as to be entirely inconsistent with the right of property"

    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:

    "If you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom." (p 604)

    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:

    "There have been some proposals of late years to extend the doctrine of village greens in a very curious way. It was thought that the commons and open fields around London might be secured as public greens by setting up a kind of national-local custom of rambling and playing at games - such as football and donkey-races, - and so the payment of compensation to private owners might be evaded by a legal fiction." (pp 16 - 17)

    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 [1896] 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 [1975] 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:

    "Unhappily, although many exquisite greens and small village commons do exist, reality all too frequently falls short of imagination. 'Too often, however,' it has been said 'village greens are neglected and become rank with unmown grass and weeds, or trodden bare, used as dumps for rubbish and disfigured with litter.' So far from being untouched, they may find the hand of the twentieth century lying heavy on them."

    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:

    "Any place which has been allotted for the exercise or recreation of the inhabitants of a parish or defined locality under the terms of any local Act or inclosure award, any place in which such inhabitants have a customary right to indulge in lawful sports and pastimes and in a rural parish any uninclosed open space which is wholly or mainly surrounded by houses or their curtilages and which has been continuously and openly used by the inhabitants for all or any such purposes during a period of at least 20 years without protest or permission from the owner of the fee simple or the lord of the manor."

    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 [2004] 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:

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

 
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