Town or village greens — Registration — Commons Registration Act 1965 — Overgrown site owned by developer registered as green on basis of 20 years’ user as of right — Procedure for determination of factual issues — Locality delineated on plan — Remedy — Whether user as of right — Whether fairness requiring non-statutory inquiry — Whether any area arbitrarily delineated on application plan a locality — Meaning of ”locality” and ”neighbourhood” — Whether appropriate remedy judicial review or application under section 14 of 1965 Act — Whether user continued as of right after objection to earlier application for registration
In 2001, the claimant developer acquired a site from the defendant council for the purposes of development. The site was unkempt, overgrown and crossed by a network of informal paths. Later in the same year, a group of local residents, who opposed development of the site, applied to register it, together with an area of adjoining land, as a town or village green on the basis of 20 years’ user as of right for lawful sports and pastimes within the meaning of section 22(1A) of the Commons Registration Act 1965. This followed an earlier withdrawn application to which the claimant had objected. The applicants relied upon such activities as walking, cycling, playing, exercising, picking blackberries, picnicking, and drawing and painting. The applicants had identified their ”locality” by a red line on a plan; the line, for the most part, did not bear any relationship to any man-made or natural topographical feature. The claimant objected to the application, and, subsequently, to the council’s failure to hold a non-statutory inquiry. Following the consideration of an officer’s report, which acknowledged that the site was overgrown but which concluded that this did not preclude that a number of the claimed activities had taken place, a council committee accepted the officer’s recommendation and the site was registered as a green under section 13 of the 1965 Act.
The claimant commenced proceedings by applying for judicial review of the council’s decision. The grounds relied upon were: (i) by reason of the condition of the site, the council could not reasonably have concluded that it had been used for the claimed activities (user); (ii) the red line on the application map did not represent a locality for the purposes of section 22(1A) of the 1965 Act (locality); (iii) user had not continued as of right up to the date of the second application because of the objection to the first application (as of right); and (iv) a fair decision could not have |page:96| been made without a non-statutory inquiry or hearing before the council’s committee (fairness). Since the council contended that the claimant should have proceeded by way of an application for the rectification of the register of greens before the Chancery Division, under section 14 of the 1965 Act, a fifth issue arose for decision on the judicial review application as to the appropriate procedure (procedure).
Held The application was allowed.
The case for registration had failed on the issues of user and locality, irrespective of whether the word ”locality” meant an area known to the law. In relation to user, the committee had no possible basis, in the light of the information put before them of its overgrown state, upon which they could reasonably have concluded that the whole site had probably been used for lawful sports and pastimes for 20 years. Registration authorities have a discretion as to the procedure to be adopted, but that discretion is not unfettered. The application could have been rejected without an oral hearing. However, because the burden of proof had not been discharged by the applicants, it should not have been accepted without one. ”Locality”, for the purposes of section 22(1A) of the 1965 Act, did not mean any area that just happened to have been arbitrarily delineated on the plan. A ”locality” must constitute a sufficiently cohesive entity that is capable of definition; it must be a distinct and identifiable community. Drawing a line on a map was not sufficient. In considering the wider meaning of the word ”locality”, the word in section 22(1A) must be construed in the context of the definition of the other two classes of green: allotted greens and those subject to customary rights. ”Locality”, for the purposes of all three classes of green, means an administrative unit, and ”neighbourhood”, for the purposes of the third class of green (20 years’ user), is an area with a sufficient degree of cohesiveness. The four issues of user, locality, as of right, and fairness could have been raised in an application under section 14 of the Act, instead of by way of claim for judicial review. The fact that the claimant could have raised all its complaints under section 14 did not oust the court’s power to grant judicial review. There was power to quash the decision and the registration. The applicants’ user of the site did not continue to be ”as of right” following the withdrawal of their first application.
Bettison v Langton; Bettison v Penton [2001] UKHL 24; [2002] 1 AC 27; [2001] 2 WLR 1605; [2001] 3 All ER 417; (2001) 82 P&CR 37
Dalton v Henry Angus & Co; Commissioners of HM Works and Public Buildings v Henry Angus & Co; sub nom Angus & Co v Dalton [1881] All ER 1; (1881) LR 6 App Cas 740
Edwards v Jenkins [1896] 1 Ch 308
Harrop v Hirst (1868) LR 4 Ex 43
Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931, Ch
New Windsor Corporation v Mellor [1975] Ch 380; [1975] 3 WLR 25; [1975] 3 All ER 44; (1975) 73 LGR 337; (1975) 30 P&CR 429, CA
Newnham v Willison (1988) 56 P&CR 8
Pain v Patrick (1690) 3 Mod Rep 289, 87 ER 191 |page:97|
R (on the application of Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin); [2003] 3 PLR 60
R (on the application of Sivasubramaniam) v Wandsworth County Court; R (on the application of Sivasubramaniam) v Kingston upon Thames County Court [2002] EWCA Civ 1738; [2003] 1 WLR 475; [2003] 2 All ER 160
R v Hereford and Worcester County Council, ex parte Ind Coope (Oxford and West) unreported 26 October 1994
R v Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720; [1974] 2 WLR 805; [1974] 2 All ER 643; (1974) 72 LGR 516
R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335; [1999] 3 WLR 160; [1999] 3 All ER 385; (2000) 79 P&CR 199; [1999] 2 EGLR 94; [1999] 31 EG 85; [2000] JPL 384, HL
R v Suffolk County Council, ex parte Steed (1995) 70 P&CR 487; [1995] 2 EGLR 233, QB
Secretary of State for Health v Birmingham City Council unreported 20 July 1995
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014; [1976] 3 WLR 641; [1976] 3 All ER 665; (1976) 75 LGR 190, CA and HL
This was the hearing of an application by the claimant, Cheltenham Builders Ltd, for judicial review of a decision of the defendants, South Gloucestershire District Council, to register a town or village green under the Commons Registration Act 1965.
[1] SULLIVAN J:
Introduction
[2] There are two sets of proceedings before the court. The first is an application for judicial review, in which the claimant seeks: (i) a quashing order in respect of a decision of the defendants’ public rights of way and commons registration committee on 8 September 2002, to amend the register of town and village greens, maintained by them, under the Commons Registration Act 1965 (the 1965 Act), by adding land at Magpie Bottom, Tabernacle Road, Hanham, Bristol (the site), as a village green; (ii) a declaration that the site is not a village green; and (iii) a mandatory order requiring the defendants to remove it from the register.
[3] The second is a claim, under CPR Part 8, for an order under section 14 of the 1965 Act that the register be amended by the removal of the site and for a declaration that the site is not a village green. Claims under section 14 are assigned to the Chancery Division.
[4] On 1 August 2003, Master Bowles ordered, by consent, that there should be a trial of preliminary issues in the section 14 claim, and that the trial of those issues should be conducted together with the claim |page:98| for judicial review. The agreed preliminary issues in the section 14 claim correspond with the issues now raised in the application for judicial review.
Factual background and statutory framework
[5] The claimant is a property development company. It acquired the land comprising the majority of the site from the defendants by transfer dated 23 February 2001, pursuant to an option agreement entered into in November 1996. The claimant exercised its option to purchase the land in November 1997. It was registered as the proprietor of the land with effect from 16 March 2001. On 6 March 2000, the claimant applied to the defendants for planning permission to erect eight houses and an access road on the land. The defendants failed to determine the application within the prescribed period, and the claimant appealed to the Secretary of State for the Environment. The Secretary of State’s inspector, who described the land as ”part of a former nursery… an unkempt and overgrown area of mature shrubs, self-seeded trees, brambles and tall grass, which is crossed by a network of informal paths”, dismissed the appeal in a decision letter dated 6 December 2000.
[6] Local residents, including Mr Bye, of the Magpie Bottom Action Group, appeared at the hearing before the inspector in October 2000 and opposed the proposed development. On 5 July 2000, Mr Bye, together with three other local residents who appeared at the hearing before the inspector, applied for registration of the land, together with some adjoining land, as a town or village green.
[7] The 1965 Act provided for the registration of all existing town or village greens in England and Wales. Land capable of registration as such that was not registered by the end of a prescribed period (31 July 1970) was not deemed to be a green: section 1(2). After 31 July 1970, registration could not be effected under section 1, but could be effected by the making of an amendment to the register under section 13 ”where… any land becomes… a town or village green”. The procedure is prescribed by the Commons Registration (New Land) Regulations 1969 (the regulations). Application must be made to the registration authority (in this case, the defendants) on the prescribed form. The registration authority must notify likely objectors, including owners, tenants, and occupiers of the land in question, and publish and display notices of the application in the area, inviting objections by a specified date. Having sent copies of any objections to the applicant and having given him an opportunity to respond, the registration authority then decide whether to accept the application and make the necessary registration, or whether to reject it.
[8] As enacted, section 22(1) of the 1965 Act contained a three-part definition of town or village green, as follows. Land:
[a] which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or [b] on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or [c] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than 20 years. |page:99|
[9] I have added letters [a]-[c] for convenience, since the three classes are usually referred to as class (a), (b) or (c) village greens. The definition of a class (c) green was altered with effect from 30 January 2001 by sections 98 and 103(2) of the Countryside and Rights of Way Act 2000 (the 2000 Act). Class (c) greens are now defined as land:
Which falls within subsection (1A) of this section.
(1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either –
(a) continue to do so, or
(b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.
No period has been prescribed for the purposes of para (b) in subsection (1A).
[10] The application dated 5 July 2000 contended that the site had become a class (c) green in ”1995 or before”. The claimant’s solicitor objected to the application in a letter dated 15 December 2000. The letter said, inter alia:
Our clients object to this application on the basis that the applicant has not established, on a balance of probabilities, that the claimed land has been used by local inhabitants for lawful sports and pastimes, as of right, for a continuous period of not less than 20 years for the following reasons:
1. The applicant has not established that there is a relevant ”locality” whose inhabitants have indulged in relevant activities on the application site. No specific neighbourhood, community or housing estate has been defined…
…
3. The applicant has claimed that various activities have been undertaken on the application site including walking, cycling, playing, exercising, socialising, picking blackberries, picnicking and drawing and painting. Given that the application site had been for some time unkempt and densely overgrown, comprising an area of mature shrubs, self-seeded trees, brambles and tall grass, it is unlikely that all of the activities claimed could have been physically undertaken on the application site on a regular basis…
…
7. The applicant has failed to establish that the claimed activities have been indulged in as of right. The majority of the evidence questionnaires make it clear that the local residents are aware that the local council own the land. Any use of the application site by the public was with the implied permission of South Gloucestershire Council…
…
In summary, the evidence presented in support of the application for registration as a village green does not define the relevant locality. Many of the questionnaires do not distinguish between recreational activities and sports undertaken on the land known as Magpie Bottom, which lies outside the application site and is designated a public open space maintained by the council. Many of the evidence questionnaires referred to the application site as land that is crossed on foot in order to gain access to other recreation areas. The majority of the evidence questionnaires give an indication that |page:100| local residents all knew that the land was in the ownership of the Council and therefore any such use of the land was with the Council’s implied permission.
[11] Correspondence between the claimant’s solicitor and the defendants continued until April 2001, by which time the definition of class (c) green had been amended by the 2000 Act (see above) and the majority of the land within the site had been transferred by the defendants to the claimant. In a letter dated 18 April 2001, the claimant’s solicitor reiterated its earlier objections, referred to correspondence from local residents seeking registration of the site, and said, inter alia:
The above correspondence and other material available to the Council regarding our client’s planning application demonstrates that the Village Green application has been lodged by a small group of residents who are using the process to maintain their objection to planning permission being granted over the application site. Third party objections to the development of this brown field site were aired fairly, although unsuccessfully, in the planning enquiry process and an application under the Commons Registrations Act 1965 is not an appropriate mechanism to seek to further such objections once they have been dismissed by the planning inspector.
[12] The applicants for registration were supplied with copies of this correspondence by the defendants. On 8 June 2001, the defendants wrote to the claimant advising it that the applicants had withdrawn their application for registration. On 5 October 2001, Mr Bye and the other three previous applicants made a further application for registration. This time, the application site had been confined almost entirely to the claimant’s land; a small piece of adjoining land belonging to a third party had also been included in the site. The application had been made on the prescribed form. It claimed that the site had become a village green ”by 2000 or before”.
[13] The applicants had chosen to describe the locality from which the inhabitants claiming to use the land came in the following terms:
Map ”A”
Claimed locality red…
Tabernacle Rd, Footshill Rd with adjoining roads of Harolds Way, Magpie Bottom, John Wesley High St. Edged in red on attached map A.
A long established local residential area with no parish boundaries.
The red edging on the plan enclosed what is perhaps best described as a kidney-shaped area, broadly aligned from the north-east to the south-west with, to stretch the anatomical analogy somewhat, a ”big toe” at its south-western extremity. The toe projects into the St George’s East ward in Bristol City. The bulk of the claimed locality lies within the area of the defendant council and is split between two wards, the Woodstock ward to the north and the Hanham ward to the south. Bristol City and the defendant council are both unitary authorities.
[14] In some locations, the red line follows a feature on the ground – for example, it runs along the boundary between the back gardens of the |page:101| houses in Tabernacle Road and Lower Hanham Road – but, for most of its length, it appears to bear no relationship to any man-made or natural topographical feature. For example, it bisects individual houses and gardens, and cuts across numerous streets and an adjoining area of open space. The application form was accompanied by 24 evidence questionnaires in the standard form published by the Open Spaces Society. Those completing the questionnaires had all confirmed that they agreed with the locality as shown edged red on the plan. In answer to question 12, those completing the forms were able to say who they considered to be the local inhabitants in respect of the site, and, in answer to question 14, they were able to identify the facilities available to the local inhabitants; for example, local school, church or doctor’s surgery.
[15] The claimant’s solicitor objected to the application in a letter dated 2 May 2002. That letter said, in part:
In summary it is clear that the applicant has not established on the balance of probabilities that the claimed land has been used by a significant number of the inhabitants of a locality for lawful sports and pastimes, as of right, for a continuous period of not less than 20 years…
3. The applicant has claimed various activities have been undertaken on the claimed land, including walking, cycling, playing, exercising, socialising, picking blackberries, picnicking, drawing and bathing. Given that the claimed land has been for some time unkempt and densely overgrown comprising an area of mature shrubs, self-seeded trees, brambles and tall grass, it is unlikely that all of the activities claimed could have been physically undertaken on the claimed land on a regular basis. Indeed we are instructed that it has been physically impossible for the public to have used over 90 per cent of the claimed land for the purposes claimed due to the fact that it has become so heavily overgrown. If it were not for the two informal paths, much of the land would be impassable…
4. The claimed land is crossed by informal paths and it is likely that only members of public accessing the application site on foot or bicycle were crossing the site to reach other recreational areas…
5. The applicant has failed to provide any evidence that the claimed activities have been indulged in ”as of right”. Indeed many of the questions acknowledge that the Council was landowner and therefore any use of the claimed land by the public is likely to have been with the implied permission of South Gloucestershire Council…
In any event, of particular importance is the additional statutory requirement that the use either continues or has ceased for not more than such period as may be prescribed or determined in accordance with prescribed provisions. No regulations prescribing such a period have been made and therefore one can only look to whether the use is continuing. It is our submission that any use of the land ”as of right” ceased when our client objected to the previous application to register the land as a village green. As you know, to qualify for use ”as of right” any 20 year use must be nec vi nec clam nec precario (without force, secrecy or permission). This means ”openly used… without protest or permission”. The act of lodging an objection to the application twelve months ago and actively fighting the village green claim is clearly sufficient enough ”protest” to prevent the land being used continuously as of right. |page:102|
[16] Around the end of May 2002, the claimant erected fencing to close off access to the site. Until that time, subject to the extent to which the site was overgrown, it was possible to gain access to it. The defendants’ head of legal and democratic services prepared a report for the meeting of the committee on 5 September 2002. The report set out the factual and legal background and identified the issues, stating, correctly, that ”the onus is upon the applicant to prove on the balance of probabilities that the land has become a village green”. The report identified the various elements contained in the definition of class (c) village greens. No complaint is made of this part of the report. The 24 evidence forms were analysed, and appendices summarised the points made in the claimant’s objection and the applicants’ responses thereto.
[17] Paragraph 26 of the report commented upon the points made in the claimant’s solicitor’s letter dated 2 May 2002. The responses to the points made in the first paragraph and paras (3), (4) and (5) of the letter (see above) were as follows:
It is clear with regard to this application that the evidence forms themselves identify the locality. The crucial question on the evidence forms is number 3(b) which asks for confirmation that the person completing the form agrees ”with the boundaries of the locality on map A edged in red”. In each case this is confirmed by the map attached which identifies both the locality edged in red… and the claimed land edged in blue…
(3) The application site is largely overgrown with trees, bramble, nettles and other vegetation. There are some paths (non public rights of way) through this area and one or two small clearings in which bird tables have been erected. These informal paths have at some time been given what appears to have been a tarmaccadem [sic] surface. Part of the site was purchased in 1977 and included a house. The Council’s records indicate that the house was demolished following a fire in 1978, ie before the twenty-year period commenced to run. It seems unlikely that some of the activities claimed have taken place on the open land because of the state of the vegetation. Nevertheless, it is quite possible for a number of the activities, for example walking, bird watching and blackberrying, to have taken place on the application site.
(4) There are some paths running through the area as stated above, but the questionnaires do not appear to be stating that users only pass through the area.
(5) It appears that the adjoining public open space to the west and north of the application site was purchased by Kingswood Borough Council in 1985 and thrown open to the public after it had been cleared. It is not easy to distinguish between the open space which has been cleared in some parts but is overgrown in others, and the application site, which as stated previously is in the main overgrown. There is a stream in the adjoining public open space and in one place a bridge with a wooden surface and crude iron hand rail which joins up with the informal paths through the application site. It is however probably correct to say that the use of the application site for certain recreation and activities over a considerable period is questionable, nevertheless, as already stated, it is quite possible for some of the activities claimed to have taken place on the application site.|page:103|
[18] The report concluded:
33. The effect of the recent changes in the law, ie the Sunningwell decision and the coming into force of section 98 of the 2000 Act – has been to widen the circumstances in which an application to register land as town or village green is entitled to succeed.
34. It is felt that the criteria had been met by the application. Thus the specific area of land subject to the application is identified and has been used by a significant number of the inhabitants of the locality…
35. Furthermore, it is felt that the applicants have established that the application site has been used predominantly by people from the locality which has been specified precisely.
36. The objection by the solicitors acting for the land owners has not conclusively overturned any of the evidence provided with the application. The application has to prove on a balance of probabilities that the land has become a village green and no compelling evidence to contradict this has been produced.
37. It is acknowledged that the site is/has been overgrown, however, this would not preclude a number of the claimed activities taking place.
The recommendation was that the register should be amended to include the site as a village green.
[19] The claimant’s solicitor had been sent a copy of the report in advance of the meeting. It protested, saying that a public inquiry should be arranged to hear, to test, and to consider the evidence that had been submitted, otherwise:
You will be depriving the objector of the beneficial enjoyment of its land on the basis of evidence which is taken at face value. Equally, you will be dismissing out of hand the Objector’s evidence as to, for example, the overgrown nature of the land which would make the use of the land for many of the claimed activities extremely difficult, if not impossible.
[20] It contended that it would be ”unlawful and unreasonable” for the defendants to determine the application without holding an inquiry.
[21] When introducing her report, the head of legal and democratic services responded:
The Council has followed the procedure required under the Commons Registration Act 1965 which does not require the Council to hold a non-statutory public inquiry to determine an application under that Act. However, under the public participation procedure approved by the Committee in 1999, the Committee may opt to proceed to a special meeting or an oral hearing should they wish…
She referred to the European Convention on Human Rights, which had been extensively relied upon by the claimant’s solicitor, and continued:
The procedure adopted to deal with this application accords with the requirements of the 1965 Act and the relevant Regulations which allow any person an opportunity to submit an objection or representation to an application within the specified period and the applicant has been given an opportunity to respond. |page:104|
[22] The introduction stated that if members did not accept the officer’s recommendation, they could refer a decision and seek counsel’s advice, or, if there were ”new evidence or a significant conflict”, they could adjourn to a special meeting. Members resolved to accept the recommendation in the report. The minutes record:
that the officer’s recommendation be accepted as there was evidence of use of the site and the officer’s report was not sufficiently challenged.
[23] No other reasons are given in the minutes for the committee’s decision, and there is no evidence from any of the members of the committee. It was common ground, therefore, that the members had agreed with, and adopted, the approach set out in the officer’s report. The claimant was informed, by letter dated 10 September, of the committee’s decision, and the site was added to the register as a village green on 7 October 2002.
Procedural history
[24] The application for permission to apply for judicial review was filed on 4 December 2002. It raised four principal grounds of challenge to the defendants’ decision to register the site as a village green. These grounds were, in summary, that:
(i) on the material before the committee as to the physical condition of the site, it could not reasonably have concluded that the site had been used for lawful sports and pastimes throughout the relevant period (user);
(ii) such use, for lawful sports and pastimes as there had been, had not been by a significant number of the inhabitants of any locality because the area shown edged red on the plan was neither a ”locality” nor a ”neighbourhood” for the purposes of the 1965 Act (locality);
(iii) such use, for lawful sports and pastimes as there had been, had not continued as of right up to the date of the second application, having become contentious once the applicants for registration were informed by the defendants of the claimant’s objections to the first application to register the site (as of right); and
(iv) the defendants could not fairly have decided to register the site as a village green without first having given the claimant an opportunity to test the evidence at a non-statutory inquiry, or a hearing before the committee themselves (fairness).
[25] The defendants’ acknowledgment of service had not contended that the claim was not arguable; rather, it had contended that the claim should not have been made as an application for permission to apply for judicial review, but as an application to rectify the register under section 14 of the 1965 Act. Section 14 provides for the rectification of registers as follows:
The High Court may order a register maintained under this Act to be amended if –
(a) the registration under this Act of any land or rights of common has become final and the court is satisfied that any person was induced by |page:105| fraud to withdraw an objection to the registration or to refrain from making such an objection; or
(b) the register has been amended in pursuance of section 3 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of regulations made under this Act;
and, in either case, the court deems it just to rectify.
[26] The claimant and the defendants were unable to agree as to the scope of section 14 and/or the appropriateness of judicial review. At a hearing on 6 May 2003, the claimant indicated that it would be making an application under section 14, without prejudice to its contention that judicial review was the appropriate remedy. I granted the claimant permission to apply for judicial review and ordered that, if possible, the application for judicial review and any application under section 14 should be heard together. In doing so, I expressly made no finding as to the ambit of section 14, or as to its adequacy as a remedy.
[27] The Part 8 claim form in the section 14 application was issued in the Chancery Division on 8 June, and, in due course, Master Bowles made the order referred to in the introduction above. In addition to the four issues set out above (user, locality, as of right and fairness), there is, therefore, a fifth: appropriate remedy – judicial review or section 14.
Short answer
[28] This case was argued with great skill by Mr George Laurence QC, on behalf of the claimant, and Mr Philip Petchey, on behalf of the defendants, over three days. Numerous authorities were cited, particularly as to the meaning of ”locality” in the 1965 Act. There is, however, a (relatively) short answer. The defendants’ decision to register the site as a village green is manifestly flawed for the three reasons set out below. Whether the end result is to be achieved under section 14 or by way of judicial review, the court simply cannot allow the decision to stand.
Reasons
User
[29] When dealing with ”the issues”, the report correctly stated that the onus was upon the applicants for registration to prove, on the balance of probability, that the site had become a village green. Thus, the applicants had to demonstrate that the whole, and not merely a part or parts, of the site had probably been used for lawful sports and pastimes for not fewer than 20 years. A common-sense approach is required when considering whether the whole of a site was so used. A registration authority would not expect to see evidence of use of every square foot of a site, but they would have to be persuaded that, for all practical purposes, it could sensibly be said that the whole of the site had been so used for 20 years.
[30] On the basis of the officer’s findings in para 26 of her report, it could not reasonably have been concluded that this test had been met. I recognise the need to read reports such as this as a whole and in a |page:106| common-sense way. Extracts should not be taken out of context. The relevant passages are set out above. In response to the claimant’s contention that it had been ”physically impossible for the public to have used over 90% of the claimed land for the purposes claimed, due to the fact that it has been so heavily overgrown”, the report said that:
(a) The land was ”largely” or ”in the main” overgrown with trees, brambles, nettles and other vegetation.
(b) It seemed ”unlikely” that some of the activities claimed had taken place on the open land because of the state of the vegetation; and that it was ”probably correct” to say that the use of the site for certain recreation and activities over a considerable period was ”questionable”.
(c) Nevertheless, it was ”quite possible” for ”a number” or ”some” of the activities to have taken place on the site.
[31] Mr Petchey submitted that the reference to a possibility rather than a probability of use was not an erroneous diminution of the burden of proof upon the applicants for registration. That issue was dealt with in the conclusions: see para 36 of the report. Rather, this part of the report was stressing the officer’s finding that, contrary to the claimant’s contention that the use of the land was impossible, it was possible for some of the claimed activities to have taken place on the site. I accept that that is a fair interpretation of this part of the report, but it raises two obvious and critical questions: (i) which activities (since the probability was that the site had not been used for certain of the claimed activities for the requisite period: see finding (b) above), and, therefore, just how extensive was the use of the site; and (ii) over how much of the site did they take place (since it was in the main overgrown: see finding (a) above)? These questions remained unresolved to the end. The concluding paragraphs in the report left them unanswered:
It is acknowledged that the site is/has been overgrown, however this would not preclude a number of the claimed activities taking place.
[32] The preceding paragraph in the report (para 36) merely compounded the confusion. Although it reiterated the need for the application to be proved on the balance of probabilities, this advice was sandwiched between two passages that appeared not merely to reverse the onus of proof but also to impose an increased burden upon the claimant. The report said that the claimant’s objection had not ”conclusively overturned any of the evidence provided with the application”, and that ”no compelling evidence” to contradict the application had been produced by the claimant. Even without this confusing advice as to the burden and standard of proof, there was no possible basis upon which the committee could reasonably have concluded that the whole of the application site had probably been used for lawful sports and pastimes for 20 years, in the light of the views expressed in para 26 of the report (and implicitly accepted by the committee).
[33] Mr Petchey made the point that the committee had had, in addition to the report, the completed questionnaires. That is true, but the views expressed in para 26 of the report were based upon the totality of |page:107| the available evidence. They should have led to only one conclusion: the application had to be refused.
Fairness
[34] One of the many deficiencies in the 1965 Act and the regulations is that they do not prescribe any procedure (beyond publicising the application and sending copies of any objections to the applicant) for determining an application. In particular, no provision is made for an oral hearing. In practice, many registration authorities remedy this omission by making arrangements for an independent inspector (normally counsel experienced in this branch of the law) to hold a non-statutory inquiry. This practice was noted with approval by Carnwath J (as he then was) in R v Suffolk County Council, ex parte Steed (1995) 70 P&CR 487, at pp500-501:
It is accepted that, if the matter has to be reconsidered by the Council on its merits, then some form of oral hearing will in practice be necessary. Although there is no provision for such procedure in the regulations, I understand that authorities do sometimes organise non-statutory hearings where the written submissions disclose significant conflicts of evidence. This is appropriate. The authority has an implied duty to ”take reasonable steps to acquaint (itself) with the relevant information…” (Secretary of State v Tameside Borough Council (1977) AC 1014, 1065). Some oral procedure seems essential if a fair view is to be reached where conflicting recollections need to be reconciled, even if the absence of statutory powers makes it a less than ideal procedure.
[35] In other cases, hearings have been held before the decision-making committee themselves, at which the applicants for registration and objectors have been given the opportunity to call and cross-examine witnesses and to make oral submissions. The defendants contend that neither a non-statutory inquiry nor a hearing before the committee had been necessary in the present case. Mr Petchey points to the fact that there was no conflict of evidence as such. The claimant had not placed any evidence before the committee contradicting the completed questionnaires; it had merely relied upon submissions in the letters of objection from its solicitor.
[36] I accept that registration authorities have a discretion as to the procedure to be adopted (assuming that the limited requirements in the regulations have been complied with), but that discretion is not unfettered. It must be exercised in a manner that is fair to applicants and to objectors. What fairness requires by way of procedure will depend upon the circumstances of the particular application. Coupled with the obligation to act fairly, the registration authority are also under an obligation, not merely to ask the correct question under the 1965 Act, but to ”take reasonable steps to acquaint [themselves] with the relevant information” to enable them to correctly answer the question: see Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014.
[37] In the present case, the defendants do not appear to have given any, or any serious, consideration as to what fairness was required. The approach adopted by the head of legal and democratic services when |page:108| introducing her report appears to have been that it was sufficient for the defendants to comply with the requirements laid down in the 1965 Act and in the regulations. Where there is a comprehensive statutory code governing the determination of appeals (for example, the Town and Country Planning Inquiries Procedure Rules), it may well be difficult to persuade the courts that fairness requires anything more than compliance with the statutory code. But, as noted above, both the 1965 Act and the regulations do not provide a comprehensive code. In particular, they are silent as to how the registration authority are to set about resolving disputes of fact between applicants and objectors that have emerged as a result of the process of the applicant responding to the objector’s response to the information contained in the application.
[38] Given the report’s findings as to user (see above), this was a case where the application could fairly have been rejected without an oral hearing because the burden of proof had not been discharged by the applicants (see above), but it could not fairly have been accepted without such a hearing, if only to resolve the two questions left unanswered on the written evidence and submissions: (i) which activities, and, therefore, what was the extent of the user; and (ii) over how much of the site did they take place for the requisite period?
[39] In support of his submission that the defendants were not required to make arrangements for some form of oral hearing, Mr Petchey relied upon the claimant’s ability to make an application to the High Court, under section 14 of the 1965 Act, for the amendment of the register. On such an application, the High Court would be able to hear oral evidence and submissions. I accept that the existence of the right to apply to the High Court is a factor to be taken into consideration when deciding what fairness requires in any particular case, but section 14 does not absolve the registration authority from the duty to adopt a fair procedure and to take reasonable steps to establish the facts to enable them to answer the statutory question.
[40] It is important, from the point of view of applicants for registration, as well as objectors, that the registration authority should do their best to resolve disputed questions of fact when deciding whether to accept or reject an application. The registration authority will be able to resolve factual disputes locally in a forum (inquiry or hearing), which will be more convenient for local residents who may support or oppose the application, and which will not expose them to the additional expense and the risk of costs that are inherent in High Court proceedings.
Locality
[41] The debate as to the meaning of ”locality” in subsection 22(1A) ranged far and wide. For the purposes of the short answer, it is unnecessary to consider the meaning of ”neighbourhood”, since the defendants did not consider whether the area shown edged red on the plan could reasonably have been described as a ”neighbourhood”. It is common ground between the parties that, while the applicants did not have to define the locality in their application (see R (on the application of |page:109| Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin)1, at [135]-[137]), the defendant had to be satisfied that the claimed user had been by the inhabitants of an area that could properly be described as a ”locality”.
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1 [2003] 3 PLR 60
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[42] The applicants chose to describe the locality, the inhabitants of which, they claimed, had used the land for lawful sports and pastimes for 20 years. All the evidence before the defendants in the form of the completed questionnaires contended that the locality was that described in the plan accompanying the application. No other locality was ever suggested. The report accepted that the area put forward by the applicants was a locality for the purposes of section 22 because, and only because, the boundary of the area had been edged in red on a plan. In his submissions, Mr Petchey acknowledged that this had been the defendants’ approach, and submitted on their behalf that, by drawing a line on a map, any area could be defined as a ”locality” for the purposes of the 1965 Act. Certainty as to the extent of the locality was all that was required, and that would be provided if the area, any area, was delineated upon a plan.
[43] Whatever may be meant by ”locality” in subsection 22(1A), I am entirely satisfied that it does not mean any area that just happens to have been delineated, in however arbitrary a fashion, on a plan. Such an approach would, in effect, deprive the word ”locality” of any meaning in the subsection, since anywhere could be delineated on a plan.
[44] Parliament might have provided that land would fall within subsection (1A) if a significant number of ”the local inhabitants” or ”persons living in the vicinity” had used the land for lawful sports and pastimes, but it did not do so.
[45] Setting the claimant’s submissions as to the meaning of ”locality” on one side (see post), it is plain that, at the very least, parliament required the users of the land to be the inhabitants of somewhere that could sensibly be described as a ”locality”. It may well be difficult to define the boundary of a ”locality” on a plan, because views may differ as to its precise extent, but there has to be, in my judgment, a sufficiently cohesive entity that is capable of definition. Merely drawing a line on a plan does not thereby create a ”locality”. In Steed, Carnwath J said, at p501:
Whatever its precise limits, it should connote something more than a place or geographical area – rather, a distinct and identifiable community, such as might reasonably lay claim to a town or village green as of right.
Although these observations were obiter, since there was no dispute that Sudbury was a ”locality” for the purposes of the 1965 Act, they capture the essential characteristics of a locality.
[46] There is no suggestion in the report that the area delineated by a red line on the plan with the application was a distinct and identifiable community. The completed questionnaires mention local facilities such as |page:110| local shops and a doctor’s surgery, but there is no information as to their location, or even as to whether they are within the area edged red. As mentioned above, the boundary of the area is, for the most part, arbitrary in topographical terms. It appears to have been defined solely upon the basis that it should be drawn so as to include the homes of the 24 people who had completed questionnaires.
[47] Unless a ”locality” in subsection (1A) means any area that happens to have been delineated by a red line on a plan by an applicant, the defendants’ decision is fatally flawed. For the reasons set out above, I am satisfied that, whatever else it may mean, ”locality” does not have such a non-meaning in the 1965 Act.
[48] In concluding that the defendants’ decision must be quashed (whether under section 14 or in the judicial review proceedings: see below) on the grounds of user, fairness, and locality, I do not intend to be unduly critical of the report. The head of legal and democratic services was doing her best to advise the committee in a complex area of the law. The deficiencies of both the 1965 Act and the regulations, and the uncertainties thereby created, have been apparent for very many years: see, for example, the observation of Lord Denning in New Windsor Corporation v Mellor [1975] Ch 380, at p392. It has become well-nigh impossible for registration authorities to discharge their duties under the 1965 Act without resorting to outside specialist advice. It is to be hoped that parliament will take steps to simplify and clarify the statutory provisions at an early stage.
Appropriate remedy
[49] When parliament wishes to restrict the scope of a statutory appeal or application to the High Court, it does so in express terms: see, for example, section 11(1) of the Tribunals and Inquiries Act 1992 and section 289(1) of the Town and Country Planning Act 1990, which make provision for appeals on a ”point of law” from decisions of certain tribunals and from the Secretary of State’s decisions in enforcement notice appeals respectively.
[50] The High Court’s powers under section 14 are not restricted to errors of law or procedure. If, for any reason, factual or legal, it appears to the court that no amendment to the register or a different amendment ought to have been made, the court may order it to be amended. In Steed, Carnwath J said, at p496, that the court, under section 14, ”is not confined to remedying errors of law, but may consider the overall merits of the amendment”.
[51] In Secretary of State for Health v Birmingham City Council unreported 20 July 1995, Vinelott J said, at p10A of the transcript, that ”the court is given a wide discretion to rectify the register in the light of the circumstances when the application is made”.
[52] Thus, the starting point must be that the claimant could have raised the four issues – user, locality, as of right and fairness – in an application under section 14, rather than by way of a claim for judicial review. The claimant accepts that it could have (and subsequently has, by way of agreed preliminary points) raised the first three issues, but |page:111| expressed a concern that the court might not have been able to deal with the fourth – fairness – without itself having to hear all the evidence and reaching its own view on the totality of the evidence as to whether the site was, or was not, a town or village green. The question is free from authority, but I can see no reason why the court should not, under section 14, order an amendment to the register, if it is satisfied that no amendment ought to have been made by the registration authority because it was procedurally unfair to have made the amendment.
[53] The fact that the claimant could have raised all its complaints under section 14 does not oust the court’s power to grant judicial review. Where parliament wishes to oust judicial review because of the availability of a statutory appeal, it has to do so in the clearest possible terms. There can be no ouster by implication: see the Court of Appeal’s decision in R (on the application of Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738; [2003] 1 WLR 475, at [44]. Section 25 of the Acquisition of Land Act 1981 is an example of an express ouster; there is no comparable provision in the 1965 Act.
[54] Although it will rarely be appropriate to grant permission for judicial review as an exercise of judicial discretion where parliament has provided a statutory appeal procedure, there will be exceptional cases: see [47] of Sivasubramaniam. In Sivasubramaniam, the Court of Appeal said that these principles applied with particular force in the context of a coherent statutory scheme, such as that established under the Administration of Justice Act 1999 and the CPR. Claimants should not be allowed to use judicial review to bypass the need to obtain leave to appeal, the need to comply with time limits, or the need to comply with other procedural requirements: see [48]. In the present case, the position is reversed. Unlike judicial review, there is no need to obtain the court’s permission to make an application under section 14, and no need to make the application promptly or, indeed, within any timescale at all. In certain cases, the court might take the view that the delay was such that it would be unjust to rectify the register, but there is no obligation to claim promptly.
[55] Mr Petchey referred to section 10 of the 1965 Act, which deals with the effect of registration:
The registration under this Act of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration, except where the registration is provisional only.
[56] He accepted that, absent section 14, the court would, in judicial review proceedings, have power to quash not merely the defendants’ decision to accept the application, but also the registration itself. In R v Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720, the Divisional Court granted an application for an order of certiorari to quash a grant of planning permission, notwithstanding the existence of a right of appeal to the Secretary of State. Decisions quashing orders, notices or other formal documents issued by local authorities are commonplace. For the reasons set out above, section 14 does not oust the |page:112| court’s power in judicial review proceedings to quash an unlawful registration. Mr Petchey submits that it would be ”very odd if the court had concurrent powers”, under section 14, to order that the register be amended and to quash a registration in judicial review proceedings. If parliament wishes to remove that ”oddity”, it has power to do so by enacting an ouster clause. Until judicial review is ousted, the court is able to exercise its discretionary power to refuse to grant judicial review in order to avoid any anomaly or injustice resulting from the existence of concurrent powers.
[57] For completeness, I should mention the decision of Brooke J (as he then was) in R v Hereford and Worcester County Council, ex parte Ind Coope (Oxford and West) unreported 26 October 1994. In that case, an application for judicial review of the county council’s decision to register land as a village green was unopposed. It was conceded that the county council’s decision should be quashed. When considering the question of remedy, Brooke J said:
I am satisfied that this is a case in which certiorari should go to quash the decision of the Commons Registration Panel. I am willing, in the exercise of my discretion, to make a declaration on the evidence before the court that the land is not a town or village green, but I am not willing to make an order of mandamus compelling the County Council to remove the land from the register.
No doubt they will remove the land from the register after the contents of this judgment have been drawn to their attention. If they fail to do so, the applicants always have their statutory remedy, under section 14 of the Act, of rectification of the register. But as the application has not been made under that section, I see no legal duty which I can order the County Council to follow to remove the land from the register. Accordingly mandamus is not appropriate.
[58] The county council were not represented at the hearing and Brooke J was not asked by the claimant to quash the registration itself. Accordingly, the point raised in the present proceedings was not considered.
[59] For the reasons set out above, there can be no doubt that the registration of the site as a village green was unlawful. Is there any reason why the registration should not be quashed in the exercise of the court’s discretion? Apart from stating, correctly, that the court has power, under section 14, to order the amendment of the register, the defendants have put forward no reason as to why a quashing order would be inappropriate. The claimant is not seeking to obtain any unfair procedural advantage or to evade any procedural obstacle by making an application for judicial review. The claim raises discrete points of law that can be answered by reference to the report and to the other documents identified above, without the need for hearing oral evidence. In the circumstances, judicial review is at least as convenient as an application under section 14. Moreover, the defendants have not suggested that they have been prejudiced in any way by the fact that the claimant chose initially to proceed by way of judicial review. |page:113|
[60] The court’s discretion must be exercised having regard to the overriding objective in CPR Part 1. Requiring a claimant who has commenced judicial review proceedings to recommence them under section 14, by way of a Part 8 claim, for no other reason than the existence of the right to make such a claim, would not be consistent with the objectives of saving expense or ensuring that his case was dealt with expeditiously. In short, it would be a pointless waste of money and time, for no practical advantage.
[61] For these reasons, I am satisfied that the court does have power to grant the claimant a quashing order in respect of, not merely the defendants’ decision to register, but also the registration itself, in addition to its power to amend the register under section 14.
As of right
[62] In order to establish the existence of a class (c) village green, it is not sufficient to demonstrate user for lawful sports and pastimes as of right for 20 years. The user as of right must ”continue” up to the date of the application for registration (in this case, 5 October 2001): see para (a) in subsection (1A). An alternative approach, which would require the user to have continued as of right after the application had been made until the date upon which the matter was being considered by the registration authority, or until the date of registration itself, would make a nonsense of subsection (1A), because a landowner would merely have to fence the land and put up notices on receipt of an application in order to defeat it, however long the user might have been.
[63] For the user to have been ”as of right”, it must have been nec vi, nec clam, nec precario, not by force, not by stealth, nor by the licence of the owner: see the speech of Lord Hoffmann in R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335, at pp350H-351A. Lord Hoffmann explained that:
the unifying element in these three vitiating circumstances was that each constituted a reason why it would not be reasonable to expect the owner to resist the exercise of the right – in the first case because rights should not be acquired by the use of force…
[64] The landowner does not have to meet force with force. He can achieve the same effect by making non-forcible objection or protests directed towards the users of his land. In Newnham v Willison (1988) 56 P&CR 8, there was a dispute as to the existence of a right of way. Kerr LJ referred to Megarry and Wade’s The Law of Real Property (5th ed):
Then the authors deal with forcible user, saying that it extends not only to user by violence, as where a claimant to a right of way breaks open a locked gate, but also to user which is contentious or allowed only under protest.
Kerr LJ continued:
And there are references to Eaton v Swansea Waterworks and Dalton v Angus.
The text goes on: |page:114|
”If there is a state of ‘perpetual warfare’ between the parties, there can obviously be no user as of right; and if the servient owner chooses to resist not by physical but by legal force… the claimant’s user will not help a claim by prescription.”
This, it seems to me, is clearly the position of the present case. Before June 27 1983 the user of the swept curve was contentious. There is a similar passage in Gale and also in Halsbury…
Having analysed the authorities, he said, at p19:
In my view what these authorities show is that there may be vi – a forceful exercise of the user – in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious.
[65] In that case, the defendants had done more than engage in correspondence: they had erected a post obstructing the plaintiff’s use of the track. In Dalton v Henry Angus & Co (1881) LR 6 App Cas 740, the House of Lords was concerned with a right of support. At p786, Bowen J said:
It might, perhaps, be added with some show of reason that the user ought, if the analogy of lights and other easements were to be followed, to be neither violent nor contentious. The neighbour, without actual interruption of the user, ought perhaps, on principle, to be enabled by continuous and unmistakable protests to destroy its peaceable character, and so to annul one of the conditions upon which the presumption of right is raised: Eaton v Swansea Water Works Company.
He continued:
I am aware that this view is not one which has been laid down in any decided case.
[66] Mr Laurence submitted that the claimant’s solicitor’s objection to the first application for registration, which led to that application being withdrawn, made it clear that the applicants’ use of the land was contentious, so that all subsequent user was vi. This point was made in the claimant’s solicitor’s letter of objection dated 2 May 2002: see above. Although it was noted in one of the appendices to the report, it was not answered in the report.
[67] Mr Petchey submits that there is now a difficulty in Newnham, in that it articulates a subjective approach:
Knowledge on the part of the person seeking to establish prescription that his user is being objected to.
Such an approach was rejected in Sunningwell: see Lord Hoffmann at p356C. If user that is apparently as of right cannot be discounted merely because many of the users were indifferent as to whether a right existed, or even had private knowledge that it did not (ibid), why should it matter that some users may know that their use is contentious? |page:115|
[68] He further submits that, whatever the position may now be post-Sunningwell, Newnham and the cases referred to therein, these were all examples of ”perpetual warfare” between the landowner and users of his land. The claimant’s objection to the first application did not establish a state of perpetual warfare. He pointed to the terms of the letters dated 15 December 2000 and 21 April 2001, which, although they objected to the application for registration, did not make it clear that local residents had no right to go on the land. Rather, they argued that any use of the site by the public was with the implied permission of the defendants, which had been the landowners, until the claimant became the registered proprietor on 16 March 2001.
[69] In my judgment, the question following their lordships’ decision in Sunningwell must be not whether those using the land knew that their user was being objected to or had become contentious, but how the matter would have appeared to the owner of the land, since, in cases of prescription, the presumption arises from the latter’s acquiescence: see pp352H-353A of Sunningwell.
[70] In this context, the reaction of the applicants for registration to the landowner’s objection must be relevant. If they had refuted the objection and persisted with their application, it might well have been reasonable to have expected the landowner to do more to resist the exercise of the claimed right, for example, by erecting fencing or putting up notices. However, the reaction of the applicants, after initially disputing the points made in the claimant’s solicitor’s letters of objection, was to withdraw their application to register the land as a village green. From the claimant’s perspective, therefore, it had ”seen off” the applicants’ contention that its land was a village green. Why did it need to do any more to make it plain that it was not acquiescing in the acquisition of village green rights over its land?
[71] I accept Mr Petchey’s submission that there was not a state of perpetual warfare; but there did not need to be, given the apparent success (from the landowner’s point of view) of its opening shots in the war. The letter dated 15 December 2000 objected to the application for registration on a number of grounds, but it did say in terms that ”the applicants had failed to establish that the claimed activities had been indulged in as of right”. Read fairly and as a whole, the letters dated 15 December 2000 and 18 April 2001 made it sufficiently clear that the claimant was not acquiescing in the applicants’ user of its land. It follows that the applicants’ user of the site did not continue to be ”as of right” after the withdrawal of their first application on 8 June 2001.
Claimant’s case on locality
[72] The claimant’s principal submission was that ”locality” in section 22 means ”a division of the county defined and known to law”: see per Kekewich J, at p313 of Edwards v Jenkins [1896] 1 Ch 308. The defendants’ submission is set out above. They contended that all that parliament required was certainty, and that the area delineated on plan A by the applicants was certain and it was therefore a locality for the |page:116| purposes of the 1965 Act. Alternatively, it was submitted (even though the issue had not been considered in the report) that the area delineated in the plan was certain and could therefore be described as a ”neighbourhood”.
[73] The parties’ submissions on the meaning of ”locality” and ”neighbourhood” ranged far and wide. Their original skeleton arguments were augmented by a supplementary skeleton argument and a further note from the claimant, together with a supplementary note and two further notes from the defendants. There is no doubt that the issues raised in these submissions are of great importance to all those concerned with village greens: applicants, landowners and registration authorities alike. I was asked to provide answers to a number of unresolved questions. Since, in my view, the case for registration of this site does not even get off the starting blocks on the issues of user and locality (whether or not it means an area known to the law), I do not intend to deal with this final issue at any great length. Given their wider importance, the unresolved questions should be determined in a case where the inhabitants do come from an area that is sufficiently cohesive to be described in ordinary language as a locality, but which is not a division of the county known to law.
[74] In Edwards, Kekewich J decided that a custom claimed by the inhabitants of three parishes to play on a field in one of the parishes was bad. This decision was doubted by Lord Denning MR in New Windsor, at p387: ”So long as the locality is certain, that is enough.” Brown LJ agreed with Lord Denning. Brightman J expressly left the question open: see p396.
[75] Lord Denning’s doubts were not echoed in subsequent cases. In Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931, where a class (c) village green had been claimed, Harman J, having concluded that there could be no possible claim of right, said, at p937a:
Other points were argued. In particular, Mr Drabble QC argued that it was impossible for a village green to be created by the exercise of rights save on behalf of some recognisable unit of this country – and when I say recognisable I mean recognisable by the law. Such units have in the past been occasionally boroughs, frequently parishes, both ecclesiastical and civil, and occasionally manors, all of which are entities known to the law and where there is a defined body of persons capable of exercising the rights or granting the rights.
The idea that one can have the creation of a village green for the benefit of an unknown area – and when I say unknown I mean unknown to the law, not undefined by a boundary upon a plan, but unknown in the sense of unrecognised by the law – then one has, says Mr Drabble, no precedent for any such claim and no proper basis in theory for making any such assertion. In my belief, that also is a correct analysis. I shall not go through the detail of it, but as a secondary reason for my judgment I would assert that it is impossible for the residents of Cadnam Crescent, alternatively of Cadnam Crescent and Milton Road, to be the persons in whose favour there could be created a right for the inhabitants of those two roads in perpetuity, and it seems to me that it would be a total departure from any of the authorities that have been cited. |page:117|
[76] In Steed, Carnwath J adopted a similar approach. Having referred to the need for there to be a ”distinct and identifiable community such as might reasonably lay claim to a town or village as of right”, and to the fact that Sudbury was being relied upon as the locality, he continued, atpp501-502:
In argument, there was some suggestion that a smaller unit could be taken, perhaps the streets adjoining the land. In support of this, I was referred to the conclusions of Gerald Ryan QC. In a non-statutory report prepared in 1979 for the Sussex County Council, Mr Ryan cited Pain v Patrick as showing that a custom might be claimed for the benefit of the inhabitants of only some of the houses in a particular settlement. In the particular case, he advised the Council that the houses in the immediately surrounding streets could qualify as a ”locality” under the Act. With respect to his acknowledged expertise in this field, I find this difficult to accept. Pain v Patrick was concerned with rights to a ferry, not to a village green. In the present statutory context I do not think that a piece of land used only by the inhabitants of two or three streets would naturally be regarded as ”a town or village green”. The word ”locality” in the definition of village green should be interpreted with regard to its context.
Such an approach is also consistent with that of Kekewich J in Edwards v Jenkins…
”I take it that the judges have used the word ‘district’ as meaning some division of the county defined and known to the law, as a parish is…”
Although the actual decision has been doubted (see New Windsor), the words underlined fairly reflect the earlier cases there cited, and indeed the concept of a ”local law” as explained in Hammerton v Honey. The word ”locality” in the Act seems intended to bear the same connotation as the word ”district” as used in such cases.
[77] Mr Petchey accepted that the houses in Pain v Patrick1 might well have comprised the ancient vill of Littleport, and would thus have been an area known to the law. In support of his submission that what was required was certainty as to the locality, rather than an administrative area known to the law, he referred to the exposition of ”custom” in 12(1) of Halsbury’s Laws (4th ed, reissue) (1998). The author, Professor JH Baker QC, refers to the need for certainty both as to the nature of the custom alleged and the locality in which it is alleged to exist: see para 615.
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1 (1690) 3 Mod Rep 289
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[78] Under the heading ”Certainty as to locality”, para 616 says, in part:
A custom must be certain in respect of the locality where it is alleged to exist; for every custom must be local and cannot be alleged as existing throughout the whole realm. Some definite limit must therefore be assigned to the area in which the custom is said to obtain. This area must be defined by reference to the limits of some legally recognised administrative division, as for instance, a county, a hundred, a forest, a region of, marshland, a city, a town or borough, a parish, township within a parish, a vill, a hamlet, a liberty, a barony, an honour, or a manor. It is disputed whether a single custom may be |page:118| claimed as operating in a number of such units, even though identical customs may in fact obtain in adjacent districts.
[79] The references in that passage to a forest and a region of marshland are references to legally recognised entities, such as the New Forest or Romney Marsh. Paragraph 616 continues:
It has been said that it is not sufficient that the area where a custom is alleged to obtain is a mere geographical district, however clearly defined, for there would be no apparent reason for the existence of a separate custom affecting a district of a kind unknown to the law; but authorities on this point do not appear to be unanimous.
[80] There is a reference to the authorities listed in footnote 27. The only lack of unanimity in the authorities cited in footnote 27, which includes Edwards, is to be found in Harrop v Hirst1, where a custom for the inhabitants of a named district, Tamewater, in the parish of Saddleworth, to take water from a spout in the highway was accepted. The weight to be given to this discordant note must be limited, since no objection had been taken on the basis that Tamewater was not an area known to the law.
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1 (1868) LR 4 Ex 43
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[81] It is common ground that: (i) the word ”locality” in subsection (1A) must be construed in the context of the definition of class (a) and (b) greens in subsection (1); (ii) locality has the same meaning in classes (a), (b) and (c); and (iii) it has the same meaning throughout subsection (1A). For class (a) village greens, the locality will have been defined in an Act of parliament, or in a formal allotment made thereunder. It will therefore be an area known to the law. For class (b) village greens, apart from the doubt expressed by Lord Denning in New Windsor, the authorities in which the issue has been considered are unanimously to the effect that, at common law, a customary right to indulge in lawful sports and pastimes could exist only for the benefit of some legally recognised administrative division of the county. In my judgment, that would have been the sense in which parliament used the word ”locality” when defining class (b) and (c) village greens in 1965.
[82] It will be remembered that the 1965 Act predated the substantial reorganisation of local government that was effected by the Local Government Act 1972. In 1965, local government areas were much smaller and more local, with numerous boroughs, urban district councils, rural district councils and a number of relatively compact county boroughs.
[83] There is a further difficulty in accepting Mr Petchey’s submission as to the meaning of ”locality”. On the defendants’ approach, there is no practical distinction between a ”locality” and a ”neighbourhood”. Provided that it is sufficiently certain (because it has been delineated on a plan), any neighbourhood can be a locality and vice versa. Indeed, Mr Petchey submitted that ”locality” and ”neighbourhood” were essentially synonymous. He fairly acknowledged that, to succeed in this |page:119| submission, he would have to persuade the court that when parliament, in the 2000 Act, amended the definition of class (c) village greens by inserting a reference to ”neighbourhood” in subsection (1A), it did so unnecessarily, and upon the basis of a misapprehension as to the meaning of ”locality” in section 22(1), as enacted in 1965.
[84] I accept that the belief of parliament in 2000 as to what was meant by ”locality” in the 1965 Act is not determinative: see the speech of Lord Scott in Bettison v Langton [2001] UKHL 24; [2002] 1 AC 27, at [62]. In that case, parliament’s erroneous belief was contrary to ”a deluge of judicial and academic opinion”: see [45]. In the present case, parliament’s belief that the burden placed upon applicants for village green registration, namely to demonstrate that the users were the inhabitants of any locality, was unduly onerous and should be lightened by the introduction of the neighbourhood concept, was entirely in accordance with the (almost) unanimous view expressed in the authorities cited above. Accordingly, I am not persuaded that parliament, in 2000, misunderstood the meaning of ”locality” in the 1965 Act.
[85] It is common ground that a neighbourhood need not be a recognised administrative unit. A housing estate might well be described in ordinary language as a neighbourhood. For the reasons set out above under ”locality”, I do not accept the defendants’ submission that a neighbourhood is any area of land that an applicant for registration chooses to delineate upon a plan. The registration authority has to be satisfied that the area alleged to be a neighbourhood has a sufficient degree of cohesiveness, otherwise the word ”neighbourhood” would be stripped of any real meaning. If parliament had wished to enable the inhabitants of any area (as defined on a plan accompanying the application) to apply to register land as a village green, it would have said so.
[86] The parties are agreed that parliament, in enacting the 2000 Act, was attempting (unnecessarily the defendants would say) to make it less, not more, difficult to establish class (c) village green rights. Parliament might have provided that land would fall within subsection (1A) if it had been used for not less than 20 years by a significant number of the inhabitants ”of any locality or of any neighbourhood”, but, for whatever reason, it did not do so. If a ”neighbourhood” is to be relied upon, it must be a neighbourhood within a ”locality”. Thus, the need to identify a locality has not been removed. In most cases, this should not create a difficulty, but it does so for the applicants in the present case. The area shown edged red on the plan is contained within two unitary local authority areas: Bristol City and South Gloucestershire. There is no county council, Avon County Council having been abolished on 1 April 1996.
[87] Mr Petchey referred to the joint arrangements made between the two unitary authorities to deal with such matters as strategic planning. The need for such arrangements merely emphasises the fact that there are, indeed, two separate authorities. He sought to rely upon section 6(c) of the Interpretation Act 1978, and invited me to read section 22(1A) as though |page:120| ”neighbourhood within a locality” meant ”neighbourhood within a locality or localities”.
[88] In my judgment, a contrary intention appears in section 22. For the reasons set out above, locality in the case of class (a) and (b) village greens means an administrative unit, not one or more administrative units. That ”locality” has the same meaning in subsection (1A) is reinforced by the use of the word ”within”, signifying that a ”neighbourhood” must be wholly inside a single locality. In effect, the defendants’ case requires subsection (1A) to be read as though it referred to a ”neighbourhood within, or partly within one and partly within another, locality”.
[89] When enacting the 2000 Act, parliament had not intended to create this additional obstacle for applicants such as those in the present case, but it managed to do so. This is a further example of the urgent need for parliament to revisit this area of the law.
Conclusion
[90] The claimant succeeds. The parties agreed that I should reserve consideration of what relief would be appropriate and hear further submissions in the light of this judgment. Before doing so, I would like to express my thanks for their most helpful submissions.
Application allowed.
