Town green — Application for amendment of the register — Land acquired from trustees for construction of hospital — Application for registration as town green under Commons Registration Act 1965 refused — High Court refusing to quash decision of Secretary of State for Health — Appeal dismissed
The appellants, S and another, applied to Suffolk County Council for registration of the People’s Park, Sudbury, Suffolk, (the land) as a town green by way of amendment of the register under section 13 of the Commons Registration Act 1965. The land was about 15.8 acres in extent and was within the urban fabric of the town of Sudbury. It had been purchased by the borough in the 1870s and renamed People’s Park. Its recreational and grazing use was regulated by a scheme approved by the High Court and administered by Trustees of the Sudbury Common Lands Charity. In 1987 the land was acquired from the trustees and sold to the Secretary of State for Health for the construction on it of a hospital by the regional health authority. The application for registration as town green was refused on the ground that the application failed to establish all the statutory criteria for town greens.
The High Court refused the appellants’ application to quash that decision after hearing submissions on the behalf of the Secretary of State and the regional health authority: see [1995] EGCS 80. A substantial sum of money had been spent on site for preparatory work for the hospital. Under section 22 of the Act, town or village green “means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality … or have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports or pastimes as a right for not less than 20 years”. Those categories within the definition were referred to as classes a, b and c. The appellants sought to rely in the form of application upon the third part of the definition, class c, viz use for lawful sports and pastimes by the inhabitants as of right for 20 years after January 2 1970. The appellants appealed.
Held The appeal was dismissed.
1. The court approached the matter on the basis that it was not a trivial matter for a landowner to have land, whether in public or private ownership, registered as a town green. The evidential safeguards dealing with the establishment of a customary right (class b) should be imported into a class c case.
2. The evidence failed by a long way in establishing use of the land for sports and pastimes as of right as inhabitants of Sudbury. The expression “as of right” required a belief in the users that they were exercising a right enjoyed by the inhabitants to so use the land. Further, there had to be an honest belief in a legal right to use the land as an inhabitant of Sudbury and not merely a member of the public.
3. At first instance the Secretary of State was deprived of half his costs because “part of the problem was due to the failure of successive Secretaries of State to implement legislation”. However, the Secretary of State appeared as landowner and developer and his interests were different from the council as registration authority. It was one of those cases where the Secretary of State should also be awarded costs.
Gerard Ryan QC and Martin Porter (instructed by Barker Gotelee, of Ipswich) appeared for the appellants; Vivian Chapman (instructed by Mills & Reeve, of Cambridge) appeared for the Secretary of State for Health; Nigel Thomas (instructed by the solicitor to Suffolk County Council) appeared for the local authority.
