Town or village green — Requirement for inhabitants to have used land as of right for 20 years and to “continue to do so” — Effect of registration as green — Whether use required to continue up to date of registration — Whether earlier period of use sufficing — Whether permissible to amend registration application — Appeals allowed in part
The county council received an application to register land owned by the city council as a town or village green, pursuant to section 13 of the Commons Registration Act 1965. The application, made in June 2002, was for registration as a class (c) green established by 20 years’ recreational use as of right by local residents. The application stated that the land had become a green by August 1990. The county council held a non-statutory inquiry, and, in the light of the issues there raised, applied to the court for directions with a view to clarifying certain questions as to the interpretation and practical application of the 1965 Act.
The issues included: (i) 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, introduced by section 98 of the Countryside and Rights of Way Act 2000; (ii) the effect of that amendment, which provided that inhabitants of the locality should not only have used the land for more than 20 years but should “continue to do so”; (iii) whether registration could in itself confer any rights upon the local inhabitants to engage in sports or pastimes on the land; (iv) the implications of registration for the purposes of section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876; and (v) the extent of the county council’s powers in dealing with the application, and whether they could treat it as having been made on a different date or accept it in respect of part only of the land included in the application.
Each of the parties appealed against certain of the rulings given in the courts below.
Held: The appeals were allowed in part.
(1) Section 22 defined a village green for the purposes of the 1965 Act, regardless of whether land would have been a village green under the old law. Section 13, which provided for the amendment of the register when land “became” a green, meant that the land now satisfied that definition by reason of events taking place after 1970. That made the land registrable, but, because the register was conclusive by virtue of section 10, the land did not become a village green until it was registered.
(2) The requirement that the inhabitants must “continue” to use the land meant that user had to continue until the date of the application to register: R (on the application of Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin); [2004] 1 EGLR 85 considered.
(3) The rational construction of section 10 of the 1965 Act was that land registered as a village green could be used generally for sports and pastimes, not limited to those proved to support the registration, although the owner still had the right to use the land in any way that did not interfere with the recreational rights of the inhabitants: R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 considered. It was a necessary implication that land conclusively presumed to be a village green should be subject to the rights that the statute treated as creating a village green. That did not run counter to the general presumption against interference with property rights without clear words, since the primary purpose of the 1965 Act was not to create new rights overriding those of the owner, but to create a register of town and village greens that included all land over which statutory or customary rights of recreation existed or probably existed. Likewise, an ordinary reading of the 1965 Act would not infringe any of the landowner’s rights under the European Convention on Human Rights: JA Pye (Oxford) Ltd v United Kingdom 44302/02 [2005] 3 EGLR 1; [2005] 49 EG 90 distinguished.
(4) The effect of section 10 was to apply the 1857 and 1876 Acts to land registered as a town or village green.
(5) In the light of (2) above, the application to the county council, relying upon a period of use ending in 1990, was flawed, but the county council had the power to permit an amendment. The procedure for registration was intended to be relatively simple and informal. The registration authority should be guided by the general principle of fairness to the parties and could permit an amendment to an application where no prejudice would be caused, or where prejudice could be avoided by an adjournment to allow objectors to deal with points for which they were not prepared. Likewise, the registration authority were entitled, without amendment, to register only that part of the land that the applicant had proved to have been used for the necessary period.
George Lawrence QC and Ross Crail (instructed by the legal department of Oxfordshire County Council) appeared for the county council; Charles George QC and Philip Petchey (instructed by the legal department of Oxford City Council) appeared for the city council; Douglas Edwards and Jeremy Pike (instructed by Public Law Solicitors, of Birmingham) appeared for the applicant local resident, Catherine Robinson; Jonathan Karas and James Maurici (instructed by the legal department of Defra) appeared for Defra as an intervener.
Sally Dobson, barrister
