Uncultivated land — Application for registration as village green — Planning committee of local authority refusing application — Whether usage as of right — High Court dismissing application for judicial review — Usage claimed not referable to locality — No change of circumstances since 1970 to qualify for registration under Commons Registration Act 1965
The People’s Park was an area of about 15.8 acres of uncultivated land on the edge of Sudbury, Suffolk, adjoining Waldingfield Road. There was residential development on three sides. It was acquired in 1987 at a price of £850,000 by the Secretary of State for Health for the construction of a hospital and £500,000 was spent on preliminary work. On February 27 1992 the applicants applied to Suffolk County Council for registration of the land as a village green under the Commons Registration Act 1965. Section 22 of the 1965 Act defined a “town or village green”, among other things, as “land … on which the inhabitants of any locality have indulged in (lawful sports and pastimes) as of right for not less than 20 years”.
The application was rejected by the planning committee in September 1992: first, because the usage was not referable to a “locality”; and, second, because the usage relied on was not the result of any change of circumstances since 1970. The applicants sought judicial review of that decision.
Held The application was dismissed.
1. The statutory word “locality” connoted something more than a place or geographical area — rather, a distinct and identifiable community, such as might reasonably lay claim to “town or village green” as of right. In this case the “locality” on which the applicants relied was Sudbury.
2. A piece of land used only by the inhabitants of two or three streets would not naturally be regarded as a “town or village green”. The word locality had to be interpreted with regard to its context.
3. It was not enough that those who used the land were inhabitants of a particular “locality”: it had to be by reference to the fact that their right to enjoyment of the land was claimed and defined. What mattered was whether the recreational use provided evidence from which, in case of dispute, there could be inferred a “right” enjoyed by the inhabitants of the locality. The more substantial and formal the use, the stronger the inference.
4. The term “as of right” related to the nature of the right in issue. The 1965 Act required something more than mere usage to define the right; the usage had to be linked to a right claimed by the inhabitants of a particular locality.
5. No land capable of registration as a village green could be claimed as such after July 1970 unless it was so registered.
6. Section 13 acknowledged that land might after 1970 “become” a common or village green. However, that could only be by virtue of something which happened after 1970.
7. In this case the evidence presented by the applicants did not give any indication of a right arising since 1970; nor did the evidence link the use to a right claimed by reference to any particular locality.
Dermod Patrick O’Brien QC and Martin Porter (instructed by Howes Percival, of Ipswich) appeared for the applicants; Nigel Thomas (instructed by the solicitor to Suffolk County Council) appeared for the council; Vivian Chapman (instructed by Mills & Reeve, of Cambridge) appeared for the Secretary of State for Health.
