Application for registration of land as village green under Commons Registration Act 1965 – Inspector concluding inhabitants had indulged in lawful sports and pastimes for not less than 20 years but not “as of right” – Whether inspector bound to adopt subjective construction of “as of right” – Application for leave to move for judicial review refused – Appeal allowed
The applicant applied for an open space of glebe land of about 10 acres known as Sunningwell Glebe, Oxfordshire, to be registered as a village green. The application was made under section 22(1) of the Commons Registration Act 1965, which defined a village green as land “on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than twenty years”. It resulted from the opposition of the local inhabitants to the intention of the owner to build housing on part of it. At an inquiry the inspector found that the inhabitants had indulged in lawful sports and pastimes for not less than 20 years. However he concluded that they had not shown they had done so “as of right” as defined in R v Suffolk County Council, ex parte Steed [1997] 1 EGLR 131 which construed the phrase as meaning that the right must be exercised in the belief that it was a right enjoyed by the inhabitants of the village, to the exclusion of the general public, to indulge in lawful sports and pastimes. Following the inspector’s advice, the county council rejected the application.
The applicant applied for leave to move for judicial review. It contended that ex parte Steed was incorrect in its subjective construction of “as of right”. It submitted that the words meant the same as “claiming right thereto” in section 2 of the Prescription Act 1832 which had always been construed objectively. The judge refused the application for leave and the applicant’s appeal to the Court of Appeal was dismissed. The applicant appealed to the House of Lords.
Held: The appeal was allowed with a direction that the county council register the glebe as a village green
1. There were no reasons to believe that the words “as of right” in section 22(2) of the 1965 Act were intended to mean anything different from the meaning of the words, or their equivalent, in the 1832 Act and the Rights of Way Act 1932. However Hue v Whiteley [1929] 1 Ch 440 had led to the courts imposing upon the time honoured expression “as of right ” a new and additional requirement of subjective belief for which there was no previous authority and which was contrary to the principles of English prescription. There was an unbroken line of descent from the common law concept of nec vi, nec clam, nec precario (peacefully, openly and not permissively) to the term “as of right” in the Acts of 1832, 1932 and 1965. Therefore ex parte Steed had been wrongly decided.
2. Although the glebe might not have been used for anything which could properly be called a sport, “sports and pastimes” were not classes of activities but a single composite class which used two words in order to avoid arguments over whether an activity was a sport or a pastime. Therefore the local inhabitants’ activities fell within the meaning of section 22(1).
3. Section 22(1) required proof of user by “the inhabitants of any locality”. It did not say “used only” by the inhabitants of the locality. Although people from outside the village regularly used a footpath on the glebe, there was little evidence of anyone other than villagers using it for sports or pastimes and it was sufficient that the land was used predominantly by the inhabitants of the village.
4. The submission that the inhabitants’ use of the glebe was not as of right but because it was attributable to neighbourly toleration was to be rejected. The law of public rights of way before 1932 showed that toleration was not inconsistent with user as of right and the purpose of the 1932 Act was to make it unnecessary to infer an actual dedication and, in the absence of specific rebutting evidence, to treat user as of right as sufficient to establish the public right: Alfred F Beckett Ltd v Lyons [1967] Ch 449 distinguished.
George Laurence QC and David Ainger (instructed by Price & Co, of Abingdon) appeared for the applicant; Sheila Cameron QC and Charles Mynors (instructed by Winckworth Sherwood, of Oxford) appeared for the second respondents and the Oxford Diocesan Board of Finance; the first respondents, Oxfordshire County Council, did not appear and were not represented.
Thomas Elliott, barrister