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

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    46.  Section 1(1) of the 1965 Act provides that land which is a town or village green shall be registered. Section 3(1) says that there shall be a register of town or village greens and that regulations may require or authorise a registration authority to note on the register "such other information as may be prescribed". Section 10 provides that registration as a town or village green shall be "conclusive evidence of the matters registered." In the case of a town or village green, the registration states simply that the land is a green. No other information is prescribed.

    47.  What rights does registration create? In New Windsor Corpn v Mellor [1975] Ch 380, 392 Lord Denning MR said that registration "confers no rights in itself. All is left in the air." Lord Denning said that the explanation was that "Parliament intended to pass another statute dealing with these and other questions on common land and town or village greens." If there was delay passing such a statute, Lord Denning said he would be "tempted to infer" that Parliament intended that land registered as a town or village green should be available for sports or pastimes for the inhabitants. Browne LJ, at p 395, said he agreed that without further legislation, registration conferred no rights on the public.

    48.  It is by no means clear that Parliament contemplated further legislation about rights over village greens. Section 1(3)(b) contemplated further legislation on the vesting of unclaimed common land, but subsection (3)(a) appears to regard the provisions for the vesting of unclaimed town and village greens (section 8(4)) as sufficient. Section 15(3) contemplates further legislation affecting the exercise of rights of common, but there is no suggestion of further legislation about rights over village greens. Nor does Hansard throw much further light on the question. There are several references to registration being a "first stage" and to a later measure "for the better management and improvement of common land" (2nd reading debate, 6 February 1965, col 90) but no indication of what might be done about village greens.

    49.  So one has to look at the provisions about greens in the 1965 Act like those of any other legislation, assuming that Parliament legislated for some practical purpose and was not sending Commons Commissioners round the country on a useless exercise. If the Act conferred no rights, then the registration would have been useless, except perhaps to geographers, because anyone asserting rights of recreation would still have to prove them in court. There would have been no point in the conclusive presumption in section 10. Another possibility is that registration conferred such rights as had been proved to support the registration but no more. So, for example, if land had been registered on the strength of a custom to have a bonfire on Guy Fawkes Day, registration would confer the right to have a bonfire but no other rights. But this too would make the registration virtually useless. Although the Act provides for the registration of rights of common, it makes no provision for the registration of rights of recreation. One cannot tell from the register whether the village green was registered on the basis of an annual bonfire, a weekly cricket match or daily football and rounders. So the establishment of an actual right to use a village green would require the inhabitants to go behind the registration and prove whatever had once satisfied the Commons Commissioner that the land should be registered.

    50.  In my view, the rational construction of section 10 is that land registered as a town or village green can be used generally for sports and pastimes. It seems to me that Parliament must have thought that if the land had to be kept available for one form of recreation, it would not matter a great deal to the owner whether it was used for others as well. This would be in accordance with the common law, under which proof of a custom to play one kind of game gave rise to a right to use the land for other games: see the Sunningwell case [2000] 1 AC 335, 357A-C.

    51.  This does not mean that the owner is altogether excluded from the land. He still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants. There has to be give and take on both sides. Fitch v Fitch (1798) 2 Esp 543 was a sequel to Fitch v Rawling 2 H Bl 393, in which the custom of playing cricket on land at Steeple Bumpstead had been established. The evidence was that the defendants had trampled the grass which the owner had mowed, thrown the hay about and mixed some of it with gravel. Heath J said:

    "The inhabitants have a right to take their amusement in a lawful way. It is supposed, because they have such a right, the plaintiff should not allow the grass to grow: there is no foundation in law for such a position. The rights of both parties are distinct, and may exist together. If the inhabitants come in an unlawful way, or not fairly, to exercise the right they claim of amusing themselves, or to use it in an improper way, they are not justified under the custom pleaded."

    52.  The judge asked the jury to decide "whether the defendant had entered the close in the fair exercise of a right, or in an improper way" and the jury found for the plaintiff.

    53.  Mr George QC, who appeared for the city council, submitted that there was a general presumption against interference with property rights without clear words. (He also relied upon the Human Rights Act 1998, to which I shall return later). But the primary purpose of the 1965 Act, as applied to town and village greens, was not to create new rights which override those of the owner. It was to create a register of town and village greens which would include all land over which statutory or customary rights of recreation existed or probably existed. That would protect both the interests of the local inhabitants (so that public open spaces were not lost with the fading of memory) and also the interests of owners and buyers of land, who could clear their titles and rely upon the register, without being surprised by claims of public right of which they had been unaware. For this purpose, it was in my view a necessary implication that land conclusively presumed to be a village green should be subject to the rights which the statute treated as creating a village green, namely the right to indulge in sports and pastimes. This was the opinion of Pill LJ in R v Suffolk County Council, Ex p Steed 75 P & CR 102, 114-115, Dyson J in R v Norfolk County Council, Ex p Perry 74 P & CR 1, 7 and Lightman J in this case. I agree.

The Victorian statutes

    54.  Section 12 of the Inclosure Act 1857 recited that it was expedient to provide "summary means of preventing nuisances" on town and village greens and land allotted for recreation. Therefore:

    "If any person wilfully cause any injury or damage to any fence of any such town or village green or land, or wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay any manure, soil, ashes, or rubbish, or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use or enjoyment thereof as a place for exercise and recreation, such person shall for every such offence, upon a summary conviction thereof [pay a fine]".

    55.  Further provision for the protection of town and village greens was made by section 29 of the Commons Act 1876:

    "An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance, and if any person does any act in respect of which he is liable to pay damages or a penalty under section 12 of the Inclosure Act 1857, he may be summarily convicted thereof upon the information of any inhabitant of the parish in which such town or village green or recreation ground is situate, as well as upon the information of such persons as in the said section mentioned."

    56.  The first question is whether the effect of section 10 of the 1965 Act is to apply these statutes to land registered as a town or village green. I agree with Lightman J and the Court of Appeal that it does. There is no special definition of a town and village green in the 1857 or 1876 Acts which might suggest that when section 10 of the 1965 Act said that registration was to be conclusive evidence of the matters registered, and the matter registered was that the land was a village green, Parliament did not intend that it should be a village green for the purposes of the 1857 and 1876 Acts.

    57.  There is virtually no authority on the effect of the Victorian legislation. The 1857 Act seems to have been aimed at nuisances (bringing on animals or dumping rubbish) and the 1876 Act at encroachments by fencing off or building on the green. But I do not think that either Act was intended to prevent the owner from using the land consistently with the rights of the inhabitants under the principle discussed in Fitch v Fitch (1798) 2 Esp 543. This was accepted by Sullivan J in R (Laing Homes Ltd) v Buckinghamshire County Council [2004] 1 P & CR 573, 588. In that case the land was used for "low-level agricultural activities" such as taking a hay crop at the same time as it was being used by the inhabitants for sports and pastimes. No doubt the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so "as of right". But, with respect to the judge, I do not agree that the low-level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes for the purposes of section 22 if in practice they were not. Nor do I follow how the fact that, upon registration, the land would become subject to the 1857 and 1876 Acts can be relevant to the question of whether there has been the requisite user by local inhabitants for upwards of 20 years before the date of the application. I have a similar difficulty with paragraph 141 of the judgment of Judge Howarth in Humphreys v Rochdale Metropolitan Borough Council (unreported), 18 June 2004, in which he decided that acts of grazing and fertilising by the owner which, in his opinion, would have contravened the 1857 and 1876 Acts if the land had been a village green at the time, prevented the land from satisfying the section 22 definition.

    Human rights

    58.  Mr George submitted that a system of prescription by which land could after 20 years user become subject to recreational rights and the Victorian statutes was inconsistent with the human right of an owner of land not to be "deprived of his possessions" except on the restricted grounds allowed by article 1 of the First Protocol to the Convention on Human Rights. Section 3 of the Human Rights Act 1998 therefore required the 1965 Act to be construed in a way which did not produce such an inconsistency. The way to achieve this result was to read section 10 as conferring no rights and as not applying the Victorian statutes.

    59.  Before a court has to resort to section 3, it must first decide that an ordinary reading of the statute would be inconsistent with Convention rights. But I do not think that the construction I have suggested would infringe any of a landowner's rights. (I ignore the fact that the city council is a public authority, since obviously the statute must have the same meaning whoever owns the land.) In support of this argument, Mr George relied principally upon the recent decision of the European Court of Human Rights in J A Pye (Oxford) Ltd v United Kingdom [2005] 3 EGLR 1. The court there held (by a majority of 4 to 3) that the extinction of an owner's title to registered land by adverse possession was a deprivation of property which could not be justified. But that case is readily distinguishable. The European Court stressed two matters: first, that the applicant's rights over the land were entirely extinguished and, secondly, that title was transferred by operation of law to another private individual. The first made it a "deprivation" and the second made it difficult to justify as a control of "the use of property" in the general interest. In the present case, first, the owner retains his title to the land and his right to use it in any way which does not prevent its use by the inhabitants for recreation and, secondly, the system of registration in the 1965 Act was introduced to preserve open spaces in the public interest.

    Questions of procedure

    60.  It will be remembered that these proceedings began because Mr Laurence and Mr Chapman disagreed over whether Miss Robinson should have been allowed to prove user for a period different from that specified in Part 4 of her application form. That particular question has been resolved by the answer which your Lordships have given to the question of substantive law, namely that the relevant definition was that specified in section 22 as amended in 2000 and that the only period upon which Miss Robinson could have relied was a period of upwards of 20 years ending with the date of her application. At the inquiry it was recognised, not least by the city council, that the statement on the application form that the land had become a green in 1990 was out of date and wrong and that it was best to ignore it.

    61.  There remain, however, more general questions about the power of the registration authority (acting by its inspector) to allow amendments to the application form and to register an area of land different from that originally claimed. It is clear from the New Land Regulations that the procedure for registration was intended to be relatively simple and informal. The persons interested in the land and the inhabitants at large had to be given notice of the application and the applicant had to be given fair notice of any objections (whether from the land owner, third parties or the registration authority itself) and the opportunity to deal with them. Against this background, it seems to me that the registration authority should be guided by the general principle of being fair to the parties. It would be pointless to insist upon a fresh application (with a new application date) if no prejudice would be caused by an amendment, or if any prejudice could be prevented by an adjournment to allow the objectors to deal with points for which they had not prepared. I agree with the approach taken by Mr Chapman and the general remarks of Carnwath LJ [2006] Ch 43, 73-75. In case there should be any doubt, I add two footnotes. First, there is no rule that the amended application must be for substantially the same land as the original application. If it relates to a larger or different piece of land, the inspector or registration authority may well think that fairness requires republication of a new application. But the matter remains one for the exercise of their discretion. Secondly, the registration authority has no investigative duty which requires it to find evidence or reformulate the applicant's case. It is entitled to deal with the application and the evidence as presented by the parties.

    62.  I also agree with the Court of Appeal that the registration authority is entitled, without any amendment of the application, to register only that part of the subject premises which the applicant has proved to have been used for the necessary period. It is hard to see how this could cause prejudice to anyone. Again, I add that there is no rule that the lesser area must be substantially the same or bear any particular relationship to the area originally claimed.

    Evidentiary matters

    63.  The statutory question is whether "a significant number" of the inhabitants of a locality or a neighborhood have "indulged in lawful sports and pastimes as of right". The question as to what is meant by "as of right" was considered by the House in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335. So was the question of what "sports and pastimes" may be taken into account. The present question concerns what counts as indulging in such sports and pastimes "on" the land: must the "significant number" of inhabitants have set their feet everywhere on the land and must such activity be exclusively referable to indulging in sports and pastimes rather than exercising or creating rights of way?

    64.  In the present case, Mr Chapman's findings of fact were that "the scrubland has been used throughout the 20 year period to a material extent for informal recreation by local people". This was established by the evidence and furthermore:

    "Standing back and applying common sense, it seems highly probable that such a disused and unprotected open area on the edge of a densely populated part of Oxford would be used by local people for dog walking, children's play and general informal recreation…The character of the scrubland has changed over the 20 year period in that it has become more overgrown with maturer vegetation. There have always been beaten tracks across the scrubland, but it has always been possible to leave the tracks and wander generally over the land, and many users have done so."

    65.  Mr Chapman dealt with the questions on which guidance was sought under questions (ix) and (x) at the end of his report. First, on the significance of footpath use:

    "The city council argues that the evidence of recreational user of the Trap Grounds amounts to user of defined routes for the purpose of passage and not to general recreational user of the whole site. With regard to Frog Lane, I consider that this is a good point. Frog Lane, according to the evidence, has predominantly been used as a route for access to and egress from the scrubland rather than for its own intrinsic recreational qualities. This is consistent with its history as a road to the nunnery and latterly to the breakers' yard. Its very name suggests that use has been as a right of way rather than as a town or village green. However, I do not consider that this analysis holds good for the scrubland itself. It is true that, at present, there is a main track which circles the scrubland. However, this track appears to be a relatively recent creation…Further, there is strong evidence that many users do not stay on the main track but wander onto subsidiary tracks and enter the various glades and clearings which are to be found within the scrubland. I do not consider that the user of the scrubland by local people can realistically be characterised as the exercise of a right of way along a defined route."

    66.  Secondly, Mr Chapman dealt with the inaccessibility of a good deal of the scrubland:

    "The city council argue that the scrubland is now so overgrown that the majority of it is inaccessible and that this in itself precludes registration as a green. As noted above, my estimate is that about 25% of the total area is reasonably accessible, the rest consisting of trees and scrub. In my view, the question whether land has become a town or village green cannot be determined by a mathematical assessment of the amount of the land which is open to recreation. …Where the recreational use is informal and consists of activities such as walking, with or without dogs, children's play, exploring and watching wild life, I do not see why much more densely vegetated land should not be capable of being subject to recreational rights, either by custom or prescription. In my view, it is necessary to look at the words of the statutory definition and to ask whether the scrubland, considered as a whole, is land which falls within that definition. In my view, the evidence proves that the recreational use of the scrubland is, and has been over the relevant 20 year period, sufficiently general and widespread, by way of use not only of the main track but also of minor tracks, glades and clearings, to amount to recreational use of the scrubland viewed as a whole."

    67.  This is not an application for judicial review of Mr Chapman's decision and your Lordships are not invited to express a view on whether, on the facts, he was entitled to reach the conclusions which he did. For my part, in the absence of an inspection or at least photographs of the site, I would be very reluctant to do so. If the area is in fact intersected with paths and clearings, the fact that these occupy only 25% of the land area would not in my view be inconsistent with a finding that there was recreational use of the scrubland as a whole. For example, the whole of a public garden may be used for recreational activities even though 75% of the surface consists of flower beds, borders and shrubberies on which the public may not walk.

    68.  Instead, your Lordships are invited to provide guidance on the correct approach to the evidence. But I share with Carnwath LJ a reluctance to offer what would amount to the equivalent of a Planning Policy Statement from the Office of the Deputy Prime Minister. Lightman J made a number of sensible suggestions about how such evidence might be evaluated and the judgments of Sullivan J likewise contain useful common sense observations; for example, on the significance of the activities of walkers and their dogs (R (Laing Homes Ltd) v Buckinghamshire County Council [2004] 1 P & CR 573, 598-599). But any guidance offered by your Lordships will inevitably be construed as if it were a supplementary statute. There is a clear statutory question: have a significant number of the inhabitants of a locality or neighbourhood indulged in sports and pastimes on the relevant land for the requisite period? Every case depends upon its own facts and I think that it would be inappropriate for this House in effect to legislate to a degree of particularity which Parliament has avoided.

    Disposal

    69.  I would therefore allow Miss Robinson's appeal against the rulings of the Court of Appeal on issues (i) and (iii) and restore the declarations of Lightman J to the effect that issue (i) registration would give rise to rights for the relevant inhabitants to indulge in lawful sports and pastimes on the land and issue (iii) for the purposes of section 22 as amended, the use for sports and pastimes has to continue until the date of the application. I would dismiss her appeal against ruling (iv) (that applications after 30 January 2001 had to satisfy the amended definition of a town or village green) and ruling (v) (that she could not succeed on the basis that the land had become a green on 1 August 1990). I would dismiss the city council's appeal against the ruling on issue (ii) (that the land on registration would be subject to the 1857 and 1876 Acts). I would dismiss the county council's appeal against the rulings on issues (vi) (that the registration authority could ignore the date specified on the application form as the date on which the land became a green); on issue (vii) (that the registration authority could allow the form to be amended) and issue (viii) (that the authority could, without amendment of the application, register a part of the land claimed). I would not answer questions (ix) and (x) further than indicated in this opinion.

LORD SCOTT OF FOSCOTE

My Lords,

Introduction

    70.  This is an unusual and difficult case, raising difficulties both of substantive law and of procedure. The difficulties all relate, in one way or another, to the effect of the Commons Registration Act 1965, as originally enacted and as amended by section 98 of the Countryside and Rights of Way Act 2000, and the 1989 Regulations made thereunder. I have had the great advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann and I very gratefully adopt his luminous exposition of the factual and legal background to the issues that arise on the appeals.

    Town or village greens

    71.  There is, however, one important matter of background on which I would respectfully take issue with the view expressed by my noble and learned friend and concurred in by a majority of your Lordships. The issue is as to what would have been understood by Parliament and by the public generally prior to the enactment of the 1965 Act by the expression "town or village green" and, consequently, how the definition of "town or village green" in section 22(1) of the 1965 Act should be applied. The issue has not been addressed by counsel who have appeared on this appeal, but, nonetheless, I do not think your Lordships can avoid forming a view on it, as indeed my noble and learned friend has done, for the meaning to be attributed to the expression has a heavy bearing on the answers to be given to some of the questions that have arisen in this case.

    72.  Lord Hoffmann has concluded that the expression "town or village green" prior to the 1965 Act would have been regarded as applicable to any land that by long custom had become subject to the right for local inhabitants to use it for some form of recreation. Hence, section 15 of the Inclosure Act 1845:

    "no town or village green shall be subject to be inclosed under this Act …",

and section 12 of the Inclosure Act 1857 which says that:

    "If any person wilfully cause any injury or damage to any fence of any such town or village green … wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay any manure, soil, ashes or rubbish or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green … or to the interruption of the use or enjoyment thereof as a place for exercise and recreation …"

    that person shall be guilty of an offence,

and section 29 of the Commons Act 1876:

    "an encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance …"

would apply to all such land whether or not the land answered to the normal understanding of what a town or village green was. In none of these Victorian Acts was the expression defined. In each of these Acts the meaning of the expression could not have been other than a meaning corresponding to that normal understanding. The Concise Oxford Dictionary 9th ed (1995) offers as one of the several possible meanings of the word "green" the following:

    "a piece of public or common grassy land (village green)".

This, I suggest, corresponds with what the normal understanding of the expression "town or village green" would have been and with the understanding of the expression that the legislators who passed the Victorian statutes to which I have referred would have had.

 
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