Bachelors’ Acre, New Windsor, held correctly registered as a ‘town green’ under the Commons Registration Act 1965–Semble, any inhabitant may now sue to prevent the corporation from continuing use of the land as a car park, etc–Lord Denning’s remarks about intervention by Parliament
This was an
appeal by New Windsor Corporation from a decision of Foster J in the Chancery
Division on March 20 1974, upholding a ruling of the chief commons
commissioner, Mr G D Squibb QC, confirming the entry of the registration of
Bachelors’ Acre, a piece of land in the middle of New Windsor, as a town green
in the register of town or village greens made under the Commons Registration
Act 1965. The registration had been entered at the instance of the respondent,
Miss Doris Evelyn Mellor, of St Mark’s Road, Windsor.
Mr P Freeman
QC and Mr K Schiemann (instructed by Marris & Shepherd, agents for G N
Waldram, of Windsor) appeared for the appellants, and Mr A L Price QC and Mr M
J Driscoll (instructed by Lovegrove & Durant, of Windsor) represented the
respondent.
Giving
judgment, LORD DENNING said that town or village greens, which went far back in
our island history, were today pleasant stretches of grass where people sat and
talked, played cricket or kicked a ball about. But in medieval times they were
the places where the young men mustered with their bows and arrows and shot at
the butts. There might be stocks there, where offenders were put for their
petty misdemeanours. In Maytime the people set up a pole and danced around it.
The villagers’ undoubted right to play games on their green came not from deeds
or statutes, but by custom from time immemorial. Rarely was such a right
challenged, but a challenge was possible in certain circumstances. For example,
a custom had to be reasonable. In 1666, the owner of land complained that
villagers danced on his field and spoilt his grass, but they proved a custom
for all the inhabitants to dance there at their free will, and the court held
it a good custom, necessary for ‘their recreation’; see Abbot v Weekly
(1666) 1 Lev 176; but when a piece of land was arable land and horsemen rode
over it when corn was growing the owner was held entitled to stop them on the
ground that ‘what is contrary to reason cannot be consonant to law’: see Bell
v Wardell (1740) Willes 202. Again a custom must be certain. Thus a
custom to play cricket on a field was good if it applied only to the
inhabitants of the village and their guests, but not if applied to the world at
large: see Fitch v Rawling (1795) 2 Hy B1 394.
Obviously the
existence of a customary right might virtually deprive the owner of the land
concerned of any benefit of it, because he could not use it in any way so as to
hinder the villagers in their pastimes. Nevertheless, the custom would still be
good. It was so held where villagers proved a custom to erect a maypole and
dance around it, ‘and otherwise enjoy any lawful and innocent recreation at any
times in the year’: see Hall v Nottingham (1875) 1 Ex D 1. The
result was that in many villages no one knew who was the owner of the green,
but everyone knew that the villagers had a right to play games on it. If anyone
should disturb or hinder that right, any one of the inhabitants could sue to
enforce the right of all, stating that he did so on behalf of himself and all
others. He need not go to the Attorney-General: see Wyld v Silver
[1963] Ch 243 at 257. He could stop any fences being erected, any holes being
dug, or pipes being laid, if they would interfere unreasonably with the exercise
by the villagers of their right. Such a right, once acquired by custom, could
not be lost by disuse or abandonment. It could only be abolished or
extinguished by Act of Parliament: see Hammerton v Honey (1876)
24 WR 603. No statute could take away a right of the kind by a sidewind. It
could only do so by express words: see Forbes v Ecclesiastical
Commissioners (1872) LR 15 Eq 51.
In 1965,
Parliament determined to have a register made of all town and village greens.
Section 1 of the Commons Registration Act 1965 provided: ‘(1) There shall be
registered, in accordance with . . . this Act . . . (a) land in England or
Wales which is common land or a town or village green.’ Section 22 defined ‘town or village green’ as
‘land . . . on which the inhabitants of any locality have a customary right to
indulge in lawful sports and pastimes or on which the inhabitants of any
locality have indulged
whether a piece of land in the middle of New Windsor, known as Bachelors’ Acre,
could properly be registered under the Act as a town green, on the basis either
of customary right or of 20 years’ user. The scheme of the Act was that any
person could apply for registration and any person could object to it. If there
was an objection it was referred to a commons commissioner, who could confirm
the registration, modify it or refuse it. Once he confirmed it the registration
became final. In November 1967 the respondent, Miss Mellor, applied to
Berkshire County Council to register Bachelors’ Acre. The council made a
provisional registration. The Royal Borough of New Windsor lodged an objection,
which was referred to the chief commons commissioner. He confirmed the registration.
The borough appealed to the judge and then to the Court of Appeal, saying that
the commissioner went wrong in law in that he drew the wrong inference from the
facts. So the court was taken through the history.
From time
immemorial Bachelors’ Acre, which was not the preserve of unmarried men and was
over two acres, had belonged to the mayor, bailiffs and burgesses of the
borough. There was proof positive that in medieval times it was the meadow
where young men practised with their bows and arrows. A pair of butts was set
up, and the men shot at the targets. The word ‘bachelor’ was then used to
describe ‘a young knight who followed the banner of another; a novice in arms’
(Shorter Oxford English Dictionary). Later, when the long bow went out
of use, the young men practised with their muskets. That was clear from a deed
in 1651 when the New Windsor Corporation let the acre to Richard Hale for 40
years for use as pasture. It was stipulated that Hale was to set up a pair of
butts ‘for the inhabitants of this said town to shoot at’ and not to do
anything which ‘may be any let or hindrance of shooting or any other lawful
exercise for recreation of the people.’
In leases of 1704 and 1749 there were stipulations that ‘all persons’
should have access to the ground ‘for their recreation.’ In 1809, a group of inhabitants who called
themselves the Bachelors of Windsor banded together to improve the Acre, which
had become much neglected. They were a public-spirited group of inhabitants,
married and single, young and old, determined to assert their rights. They
levelled and returfed the ground after filling up a large pond.
Afterwards
they had a great celebration there to mark the jubilee of King George III.
Queen Charlotte joined in. They roasted an ox and had plum pudding. They put up
an obelisk 17 ft high, which is still there. On one side were the words: ‘1810.
Alterations and improvements were made by the Bachelors of Windsor in this
their Acre.’ In 1814, the ‘Natives and
Bachelors’ of New Windsor successfully opposed a proposed enclosure. At a
celebration at the Swan Inn in 1817 the chairman expressed the hope that the
obelisk would remain ‘the bulwark of the right of the Bachelors of Windsor,
even when the all-powerful hand of time shall have crumbled more magnificent
structures into dust.’ In 1847 there was
the ‘Battle of Bachelors’ Acre,’ when several hundred people filled up a well
which the local authorities had dug in the Acre to supply water to the streets.
Later, the town council resolved to site the well ‘so as not to interfere with
the enjoyment of the same by the inhabitants.’
In 1903 the Local Government Board refused to approve the sale of part
of the Acre to the local infirmary, because it was incompatible with the use of
the land by the inhabitants. The present corporation, however, had refused to
recognise any right in the inhabitants to use the Acre for recreation. They had
turned half of the land into a car park, and had allowed the other half to be
used by the Royal Free School as a playground. In 1968 they proposed to put up
a multi-storey car park, but planning permission was not granted, one reason
being the claim of right of the inhabitants to use the land for recreation.
On the
evidence, he (his Lordship) had reached the clear conclusion that the
inhabitants of New Windsor had a customary right to indulge in lawful sports
and pastimes on Bachelors’ Acre. It was for the benefit of all the inhabitants.
‘The Bachelors of New Windsor’ was simply the name used by the active defenders
of the right. The picture was one of the inhabitants asserting a right for over
300 years, and the corporation latterly attempting, with only partial success,
to defeat that right. He (Lord Denning) would therefore confirm the decision of
Foster J and dismiss the appeal. It was not unimportant to consider the effect
this would have. All disputes being resolved, the registration of Bachelors’
Acre became final: see section 6 (1) (ii) of the 1965 Act. By section 10, the
registration was ‘conclusive evidence of the matters registered.’ But apart from that provision, the Act
nowhere said what the effect of registration was. It conferred no rights in
itself. All was left in the air. The explanation evidently was that Parliament
intended to pass another statute dealing with those and other questions on
common land and town or village greens. It was to be hoped that another statute
would not be long delayed. If there should be delay, he (his Lordship) would be
tempted to infer from the Act of 1965 that all land registered as a ‘town or
village green’ should be available for sports and pastimes for the inhabitants,
and that all land registered as ‘common land’ should be open to the public at
large, so long as they did not interfere with the rights of commoners or injure
the pasture. At all events, in his opinion Bachelors’ Acre was subject to a
customary right in the inhabitants to indulge in lawful sports and pastimes on
that land. That meant that any inhabitant could prevent its present use. He
could bring an action to prevent its being used as a car park or as a school
playing field, provided he showed that he and others reasonably wanted to play
games there. He could stop anything that prevented or hindered the inhabitants
in exercising that right. He could bring an action himself to enforce it. There
was no way in which the corporation could continue its present use or put it to
other uses without getting a private Act of Parliament. That was one of the
unfortunate consequences of the 1965 Act. It left the old rights intact without
any means of disposing of them by agreement, or otherwise: not even by
providing a substitute ground, and it was urgent that Parliament should direct
its attention to the subject. Nevertheless the appeal must be dismissed.
Agreeing,
BROWNE LJ said that he had no doubt that the name ‘Bachelors’ Acre’ had been in
use long before 1651. It was said that it went back at least to the year 900.
The customary right claimed was established by the evidence, and the
commissioner’s decision and that of Foster J must be upheld. The land was
clearly shown to be ‘land . . . on which the inhabitants . . . have a customary
right to indulge in lawful sports and pastimes.’
BRIGHTMAN J
also agreed, and the appeal was dismissed. Leave to appeal to the House of
Lords was granted.
