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

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    18.  In In re Turnworth Down, Dorset [1978] Ch 251, 260-261, Oliver J suggested in passing that this simply meant that the land was not deemed to be a village green but did not exclude the possibility that it actually was. The same opinion was expressed by Pill LJ in R v Suffolk County Council, Ex p Steed (1996) 75 P & CR 102, 112-113. But this would not in my opinion be in accordance with the scheme of the Act. I think that the effect of non-registration was to extinguish such rights of recreation as may have existed by custom or statutory allotment and were registrable on the appointed day.

    19.  On the other hand, by section 10, the registration of land as common land or as a town or village green was to be "conclusive evidence of the matters registered, as at the date of registration". So the register was to be definitive, both positively and negatively: registration was conclusive evidence that on that date it was a town or village green and non-registration was conclusive evidence that it was not.

    20.  In its definition of a "town or village green" for the purposes of the Act, section 22 departed from the recommendation of the Royal Commission. The conclusive presumption arising from upwards of 20 years use was not confined to rural parishes or land surrounded by houses or their curtilages:

    "In this Act, unless the context otherwise requires … 'town or village green' means land [a] 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 20 years."

    (I have inserted into this definition the letters by which the alternative grounds upon which land may qualify for registration are usually designated).

    21.  The Act did not vest the ownership in all town and village greens in the local authority. If anyone could satisfy a Commons Commissioner that he was the owner of the soil, he would be registered as owner. It was only in cases in which no one could prove that he was owner that the land vested in the local authority, which became entitled to manage the green as if it was a public open space: see section 8(4).

    New town or village greens

    22.  Section 13 provided for events happening after the register had become final:

    "Regulations under this Act shall provide for the amendment of the registers maintained under this Act where -

    (a)  any land registered under this Act ceases to be common land or a town or village green; or

    (b)  any land becomes common land or a town or village green; or

    (c)  any rights registered under this Act are apportioned, extinguished or released, or are varied or transferred in such circumstances as may be prescribed … "

    23.  Pursuant to section 13, the Minister of Housing and Local Government made the Commons Registration (New Land) Regulations 1969 (SI 1969/1843) ("the New Land Regulations"). Regulation 3(1) provided for applications to register land which had become common land or a town or village green after 2 January 1970, the last date on which land which was already common land or a town or village green could have been originally registered. The notes appended to the Regulations gave examples of how land could become a town or village green after 2 January 1970. One was "by the actual use of the land by the local inhabitants for lawful sports and pastimes as of right for not less than 20 years." The Regulations provided a simple procedure for such applications. There was a form of application to be sent to the registration authority, (regulation 3(7)), of which notice was required to be published, posted upon the land and sent to the land owner and other interested parties: regulation 5(4). Objections were to be sent to the applicant, who was to be given an opportunity to deal with the points which they raised and any grounds on which the registration authority considered that prima facie the application should be rejected. No procedure for adjudicating upon the applications and objections was prescribed.

Proof of user

    24.  The registration of village greens which had come into existence by virtue of 20 years user as of right was at first restricted by the decisions of Carnwath J and the Court of Appeal in R v Suffolk County Council, Ex p Steed (1995) 70 P & CR 487; 75 P & CR 102 which held that user "as of right" meant that the people indulging in sports and pastimes on the land must have believed that they were exercising a right claimed by the inhabitants of a particular locality. This requirement was, I think, intended to be, and was in practice, very difficult to satisfy. As in the case of the metropolitan commons in the Victorian era, people who went upon open land in urban areas for recreational purposes tended to think (insofar as they thought about the matter at all) that they were exercising a general public right.

    25.  In R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, however, your Lordships' House rejected the requirement of a subjective state of mind by people using the land and thereafter, as Carnwath LJ observed in this case [2006] Ch. 43, 61 registration of new village greens became "an area of unusually vigorous legal activity". Once 20 years' user had been established, the only substantial hurdle which the applicant for registration had to overcome was, as it had been in the Victorian cases on customary greens, proof that the user had been by the inhabitants of a defined locality. This requirement was relaxed by the House in Sunningwell [2000] 1 AC 335, 357-358 only to the extent of saying that not all the users needed to be inhabitants of the locality in question. It was sufficient that the land was used "predominantly" by such inhabitants.

    The amendment of section 22

    26.  Soon after the decision in the Sunningwell case, the question of town and village greens was raised in Parliament. This was in the debates on the bill which became the Countryside and Rights of Way Act 2000. No one voiced any concern about the construction which the House in its judicial capacity had given to the 1965 Act. On the contrary, the only question raised in debate was whether the locality rule did not make it too difficult to register new village greens. In your Lordships' House, Baroness Miller of Chilthorne Domer described the need for the users to be predominantly from the local community, defined by reference to a recognised ecclesiastical parish or local government area, as a "loophole" in the 1965 Act which "allows greens to be destroyed" (Hansard (HL Debates) 16 October 2000, col 865). The Government was sympathetic and introduced a suitable amendment which was adopted at the report stage (Hansard (HL Debates) 16 November 2000, col 513). This became section 98 of the 2000 Act, which amended section 22 by substituting a new third limb of the definition (class c):

    "(1A)  Land falls within this subsection if it is land on which for not less than 20 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."

    No period has yet been prescribed under paragraph (b).

    27.  "Any neighbourhood within a locality" is obviously drafted with a deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries. I should say at this point that I cannot agree with Sullivan J in R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] JPL 975 that the neighbourhood must be wholly within a single locality. That would introduce the kind of technicality which the amendment was clearly intended to abolish. The fact that the word "locality" when it first appears in subsection (1A ) must mean a single locality is no reason why the context of "neighbourhood within a locality" should not lead to the conclusion that it means "within a locality or localities".

    28.  I mention for the sake of completeness that a new Commons Bill which repeals and replaces the 1965 Act is now before Parliament.

    The Inquiry

    29.  I come next to the procedure which was followed in this particular case. Although the New Land Regulations do not prescribe any particular method of adjudication, registration authorities in difficult cases tend in practice to engage the services of a member of the Bar to conduct a non-statutory inquiry with a view to advising the authority on the facts and the law: see R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, 348. This procedure is sanctioned by a number of judicial decisions and in R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] JPL 975, 986-987 Sullivan J decided that in some cases fairness would make an oral hearing not merely an option but a necessity. Mr Vivian Chapman, who had also been the inspector in the Sunningwell case, held an inquiry and produced a report. There was only one objector: the city council, as owner of the land.

    30.  Miss Robinson's original application had been to register the whole of the Trap Grounds, including the submerged reed beds. At the hearing she applied to amend the application to exclude the reed beds and a 10 metre strip on the west boundary of the scrubland, on which the county council wanted to build an access road to a new school to the south. Mr Chapman decided that he (or the registration authority in whose name he was acting) had power to allow an amendment but refused leave on the ground that the owner of the land (the city council) was entitled to have the status of the whole application land determined and not be faced with the possibility of a later application in respect of land which had been excluded.

    31.  The application form prescribed by the regulations contains the question (in Part 4): "On what date did the land become a town or village green?". Miss Robinson, apparently on the strength of a publication by the Open Spaces Society, Getting Greens Registered (paragraph 59) wrote "1 August 1990". This was calculated as 20 years after the period for original registration had expired. At the inquiry, however, it became clear that she was relying on the period of 20 years before the date of her application for registration on 21 June 2002 and Mr Chapman dealt with the application accordingly.

    32.  Mr Chapman found that the scrubland had been proved to have been used for lawful sports and pastimes for more than 20 years before the date of application and recommended to the county council that it should be registered as a village green. But the reed beds and Frog Lane had not been so used and should be excluded from the registration.

    The county council's response

    33.  The county council then appears to have sought a second opinion on some of the legal points which had arisen. Mr George Laurence QC advised that the 20 year period could be any 20 year period ending after 1 August 1970 and before the date of the application and that an applicant must decide which period she wants to rely on. If she could not prove that it became a green by the date specified in the application, it must be rejected and she could not rely on evidence of use at a later date. He also advised that the authority could register part of the land specified in the application only if it was "not substantially different" from the application land.

    34.  Mr Chapman, sent this advice for comment, adhered to his recommendation. In his opinion, the relevant 20 year period was, even before the 2000 amendment, the period before the date of the application. Miss Robinson's answer to Part 4 of the form (1990) was therefore, in law, a mistake. But the mistake had caused no prejudice to the city council, which had agreed that 20 years before 2002 was the relevant period and had conducted its case accordingly. Mr Chapman also rejected the opinion that the authority could not register a part of the land specified in the application, saying that it must have power to register a smaller area. It would be pointless to require a new application.

    Application for declarations and directions

    35.  In view of this conflicting advice, the registration authority applied to the court for directions. It decided that it should also ask for rulings and guidance on various other matters relevant to both whether the land should be registered and what the consequences of registration would be. As a result, Lightman J was faced with an application for 10 rulings:

    (i)  whether the relevant inhabitants had rights to indulge in lawful sports and pastimes on land which had become a class c town or village green;

    (ii)  whether land which had become a class c green fell within the scope of section 12 of the Inclosure Act 1857 (20 & 21 Vict c 31) and section 29 of the Commons Act 1876;

    (iii)  a ruling as to the meaning of the words 'continue to do so' in section 22 of the 1965 Act, as amended, for which purpose the court was asked to rule whether (in the absence of regulations made under the section), the lawful sports and pastimes had to continue to (a) the date of the application to register, or (b) the date of registration, or (c) some other, and if so what, date;

    (iv)  a ruling as to whether all applications for registration of land as a class c green made on or after 30 January 2001 automatically engaged (and engaged only) the amended definition in section 22 of the 1965 Act;

    (v)  a ruling as to whether the application might as a matter of law succeed on the basis that the land had become a green on 1 August 1990, or whether (subject to (vi) below) an application which specified in the application form a commencement date for the green that was earlier than the date immediately preceding the date of the application had to fail;

    (vi)  a ruling as to whether the [county council] had power to treat the application as if a different date (namely a date immediately preceding the date of the application) had been specified in the application as the commencement date for the green, and to determine the application on that basis;

    (vii)  a ruling as to whether, as a matter of law, it was open to the [county council] to permit the application to be amended so as to refer to some lesser area, and if so, according to what criteria;

    (viii)  a ruling as to whether, as a matter of law, it was open to the [county council] (without any such amendment being made) to accept the application in respect of, and to register as a green, part only of the land included in the application, and, if so, according to what criteria;

    (ix)  guidance as to how the [county council] had to approach the application in the light of (a) the evidence in relation to user of the main track and subsidiary tracks, and (b) the fact that some of the land was not reasonably accessible;

    (x)  guidance as to the relevance of the existence or potential for the existence of public rights of way."

    (We are told that the requests for what became rulings (i) and (ii) were added during the hearing at first instance at the suggestion of the judge, who took the view that the answers would inform his approach to what became rulings (iv) and (v).)

    36.  Lightman J made declarations in response to each of these questions. Each of the parties appealed against one or more of these rulings and the Court of Appeal, in a judgment given by Carnwath LJ, allowed the appeal in respect of some of the declarations and dismissed it in respect of others. All parties appeal to your Lordships' House.

    What is a village green?

    37.  In R (Beresford) v Sunderland City Council [2004] 1 AC 889, 917, para 92, my noble and learned friend Lord Walker of Gestingthorpe said that the registration of a 10 acre grass arena in an urban area as a town or village green "may be thought to stretch the concept of a town or village green close to, or even beyond, the limits which Parliament is likely to have intended." Others may also feel a visceral unease at the lack of resemblance between the land registered in that case (and sought to be registered in this one) and the "traditional" village green whose passing was lamented by Goldsmith in 1770. Perhaps, one might feel, the concept could be narrowed by importing into the definition some of the qualities which are associated with the ordinary use of the term defined - what might be called an "Auburn test", not expressly stated in the definition but implied from the choice of the words "town or village green".

    38.  My Lords, it is true that in construing a definition, one does not ignore the ordinary meaning of the word which Parliament has chosen to define. It is all part of the material available for use in the interpretative process. But there are several reasons why I think that it would be unwise for your Lordships, at any rate without full argument, to embark upon the process of introducing some elements of the traditional village green into the statutory definition.

    39.  First, your Lordships will observe that the question of whether the Trap Grounds failed, by reason of their current character, to qualify as land capable of becoming a town or village green was not among the 10 questions on which the parties sought rulings from the House. It was not discussed in any of the printed cases. Secondly, this is not surprising because there is no authority, either at common law or on earlier statutes which used the term "village green", in which such a restricted meaning was applied. Thirdly, any restriction derived from the ordinary meaning of "village green" must apply to all three limbs of the definition, but the Royal Commission plainly thought that all land with customary rights of recreation (such as Stockbridge Common Down) would fall within class b. Fourthly, Parliament must have been alerted to the width of the definition by the Royal Commission's proposed restriction for class c greens but chose to define them without restriction. Fifthly, even if Parliament had not noticed in 1965, the subsequent practice of the very learned Commons Commissioners and the courts would have shown how the definition operated. On 19 May 1977 Mr CA Settle QC, as Commons Commissioner, registered as falling within the statutory definition some rocks at Llanbadrig, Ynys Mon, which had been used by the inhabitants of the locality to moor boats while engaged in the pastime of boating. On 24 May 1976 the Chief Commissioner Mr Squibb ordered registration of land which the local authority wanted to use for housing purposes but upon which there was a custom of having an annual Guy Fawkes bonfire. No doubt there are other examples in the archive of decisions of the Commons Commissioners. In New Windsor Corporation v Mellor [1975] Ch 380 the Court of Appeal confirmed the registration of a car park in Windsor as a customary (class b) green. Sixthly, Parliament in 2000 showed no unease at the way registration was operating. Seventhly, if Parliament thinks that the definition needs to be narrowed, it will have an immediate opportunity to do so. Eighthly, the terms of the proposed Auburn test would be inherently uncertain. To say that the registration authority will recognise a village green when it sees one seems inadequate.

    40.  My Lords, I therefore turn to the issues raised by the 10 points on which declarations or guidance were sought. They may be divided into four groups. The first concerns the 20 year period: when must it have ended? The original definition did not specify. The 2000 amendment says "and continuing" but does not say until when. The second group concerns the effect of registration. Do the local inhabitants obtain any rights and is a registered green protected by Victorian legislation enacted to prevent nuisance and encroachment on town and village greens? The third group raises some procedural questions about the form of applications and the powers and duties of the registration authority and the fourth group seeks guidance on the correct approach to certain kinds of evidence about user.

    The 20 Year Period

    41.  Section 22 as originally enacted said that land which the inhabitants of the locality have used for sports and pastimes "for not less than 20 years" was a village green. It did not specify when that period should end. In New Windsor Corpn v Mellor [1975] Ch 380 the Court of Appeal thought that it meant 20 years before the passing of the Act. In Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931, 938 Harman J thought it meant 20 years before the date of the application for registration: see also R v Norfolk County Council, Ex p Perry (1996) 74 P & CR 1, 5 (Dyson J) and Caerphilly County Borough Council v Gwinnutt (unreported), 16 January 2002 (Judge Hywel Moseley). But Mr Edwards, who appeared for Miss Robinson and Mr Laurence, who appeared for the registration authority, said that as the definition did not specify any terminal date, it meant any period of 20 years. On the expiry of a 20 year period of user, the land became a village green. If it had become a green before 1970 and had not been registered, it would be deemed by section 1(2)(a) not to have been a village green on the appointed day. But any 20 year period expiring after the appointed day would do.

    42.  The amended section 22, with the addition of the words "and…continue to do so", plainly cannot be satisfied by any period of 20 years. It must be a period continuing until a given date, although, as I shall explain, the precise date is controversial. So one might have thought that the question of whether one could have taken any 20 years under the old law was now academic. But Mr Edwards says that if the land became a green under the old law, it would have remained a green thereafter. Once a village green, always a village green. It could not be retrospectively deprived of that status by the amendment of the definition in 2000. Lightman J agreed: [2004] Ch 253, 283, paras 66-67.

    43.  In my opinion it is unnecessary to decide when the 20 year period under the old law would have expired because the argument that it would have "become a village green" is a misreading of sections 13 and 22 of the 1965 Act. Section 22 defines a village green for the purposes of the Act. When section 13 speaks of 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 registrable. But, because the register is conclusive, it does not become a village green until it 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 to 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 [2006] Ch. 43, 72-73, para 100:

    "The 1965 Act created no new legal status, and no new rights or liabilities other than those resulting from the 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."

    Continue until when?

    44.  Since 2001, then, the land must satisfy the definition as amended by the 2000 Act. The inhabitants must "continue" to use the land for sports and pastimes. Continue until when? Carnwath LJ said that user had to continue until the date of registration. But that would mean that any well-advised landowner, on receipt of an application to register, would erect barbed wire or take other steps to prevent the user from continuing, or at any rate continuing as of right. In R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] JPL 975, 991 Sullivan J said, accurately as it seems to me, that such a construction would make nonsense of the Act. Carnwath LJ [2006] Ch 43, 71, para 94 did not accept that his construction was "so obviously unreasonable or contrary to the legislative intention that it must be rejected." He gave three reasons for adopting it. First, the Secretary of State had power to prescribe a different period. But that seems to me neutral as to what the default position should be. Secondly, the history of the 1965 Act gives "no support for a broad interpretation of the provisions for new greens." That sounds like an attempt to refight the battle of Sunningwell green. Thirdly, a construction which made dedication of a new green in effect voluntary at the time of registration would "help to provide an answer to possible human rights objections." As I shall explain, I do not think that there are valid human rights objections. I would therefore reject the Court of Appeal's construction as irrational. In my opinion the correct date is that of the application. That appears to be assumed by clause 15(3)(b) of the Commons Bill now before Parliament.

    Does registration create any rights?

    45.  Questions (i) and (ii), which raise the questions of whether the registration creates any rights and whether the registered land will be a town or village green for the purposes of the Victorian statutes, are not of immediate concern to the county council. Such questions will arise only once the land is registered and the county council is functus officio. I share the concern of my noble and learned friends Lord Scott of Foscote and Baroness Hale of Richmond that the House should not make declarations of abstract propositions of law. But the interest of the city council in these questions is concrete in the most literal sense. They wish to build houses on the land. If registration creates no rights and the land does not fall within the Victorian statutes, they will be able to do so. If it does create rights or fall within the statutes, they will not be able to use the land in a way which wholly excludes the local inhabitants from using it for any sports or pastimes whatever. Accordingly, the city council have a real and immediate interest in having the question resolved and there is an appropriate contradictor, namely Miss Robinson. In the circumstances I consider that it would be a proper exercise of the House's discretion to answer questions (i) and (ii) and, as there has been no objection by anyone, I think that your Lordships should do so.

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