Village green — Commons Registration Act 1965 — Sports and pastimes — User as of right for local inhabitants — Whether activities exercised as of right — Whether subjective test — Whether R v Suffolk County Council, ex parte Steed [1995] 2 EGLR 233 correctly decided
In 1994 the owner of 10 acres of glebe land, the diocesan board of finance, obtained planning permission to build two houses on part of the glebe. The parish council applied to the respondent county council to register the glebe as a town or village green under the Commons Registration Act 1965; the parish council relied on section 22(1)(c) of the Act, contending that the glebe was land on which the inhabitants of the locality had indulged in sports and pastimes as of right for not less than 20 years. Following an inquiry, the county council refused to effect the registration as the villagers’ use of the glebe had not been shown to be ‘as of right’ in the sense determined in R v Suffolk County Council, ex parte Steed [1995] 2 EGLR 233 as being a right confined to the inhabitants of the village; the witnesses generally thought they had rights but did not say that they were confined to the local inhabitants. The parish council appealed from a decision of the Court of Appeal, which had dismissed their application for judicial review of the county council’s decision.
Held: The appeal was allowed. Where a use had to be established as of right, user that was apparently as of right could not be discounted merely because many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not. R v Suffolk County Council, ex parte Steed was wrongly decided. There was evidence of informal recreation and this was a pastime for the purposes of the 1965 Act. It was sufficient that the glebe was used predominantly by inhabitants even if there was occasional use by non-inhabitants. A balance must be struck between neighbourly tolerance of trespass and the acquisition of rights by user; there was sufficient quality of user as of right.
The following cases are referred to in this report.
Abercromby v Town Commissioners of Fermoy [1900] 1 IR 302
Attorney-General v Antrobus [1905] 2 Ch 188
Attorney-General v Dyer [1947] Ch 67
Beckett (Alfred F) Ltd v Lyons [1967] Ch 449; [1967] 2 WLR 421; [1967] 1 All ER 833; (1966) 65 LGR 73, CA
Blount v Layard [1891] 2 Ch 681n
Bright v Walker (1834) 1 CrM&R 211
Bryant v Foot (1867) LR 2 QB 161
Dalton v Angus (1881) 6 App Cas 740; [1881] All ER Rep1; 50 LJQB 689; 44 LT 844; 46 JP 132; 30 WR 191, HL
Earl de la Warr v Miles (1881) LR 17 ChD 535
Fitch v Rawling (1795) 2 HyBl 393
Folkestone Corporation v Brockman [1914] AC 338
Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229
Hammerton v Honey (1876) 24 WR 603
Hue v Whiteley [1929] 1 Ch 440
Jones v Bates [1938] 2 All ER 237
Mann v Brodie (1885) 10 App Cas 378
Mercer v Denne [1905] 2 Ch 538
Mills v Colchester Corporation (1867) LR 2 CP 476
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Mills v Silver [1991] Ch 271; [1991] 2 WLR 324; [1991] 1 All ER 449; (1990) 61 P&CR 366, CA
O’Keefe v Secretary of State for the Environment [1996] JPL 42
R v Suffolk County Council, ex parte Steed (1995) 70 P&CR 487; [1995] 2 EGLR 233, QB
R v Suffolk County Council, ex parte Steed (1996) 75 P&CR 102; [1997] 1 EGLR 131; [1997] 10 EG 146, CA
This was an appeal by Sunningwell Parish Council from a decision of the Court of Appeal, which had dismissed their application for the judicial review of a decision of the first respondents, Oxfordshire County Council, to refuse the parish council’s application to register as a village green glebe land owned by the second respondent, Oxford Diocesan Board of Finance.
George Laurence QC and David Ainger (instructed by Price & Co, of Abingdon) appeared for the parish council; Sheila Cameron QC and Charles Mynors (instructed by Winckworth Sherwood, of Oxford) represented the Oxford Diocesan Board of Finance; the first respondents, Oxfordshire County Council, did not appear and were not represented.
LORD BROWNE-WILKINSON and LORD STEYN agreed with the judgment of Lord Hoffmann and did not add anything.
Giving his judgment, LORD HOFFMANN said: The glebe at Sunningwell in Oxfordshire is an open space of about 10 acres near the ancient village church. It used to form part of the endowment of the Rectory. The rector let it for grazing and received the rent. On a reorganisation of church properties in 1978 it was transferred to the Oxford Diocesan Board of Finance (the board). The land slopes upwards towards to the south and is crossed by a largely unfenced public footpath running south from the village towards Abingdon. Local people use the glebe for such outdoor pursuits as walking their dogs, playing family and children’s games, flying kites, picking blackberries, fishing in the stream and tobogganing down the slope when snow falls.
In 1994 the board obtained planning permission to build two houses on the northern boundary of the glebe. The villagers were very much opposed. They wanted it preserved as an open space. The parish council applied to the county council to register the glebe as a town or village green under the Commons Registration Act 1965. It is unclear what rights, if any, registration would confer upon the villagers. The Act is silent on the point. But registration would prevent the proposed development because by section 29 of the Commons Act 1876 encroachment on or inclosure of a town or village green is deemed to be a public nuisance.
Section 22(1) of the Act of 1965 contains a three-part definition of a town or village green. They are usually called classes a, b and c. I shall use the same terminology.
[a] land 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.
Class a includes land that was allotted for exercise and recreation by Act of Parliament or the Inclosure Commissioners when making an order for the inclosure of a common under the Inclosure Act 1845. Before 1845, when commons were inclosed under private Acts of Parliament, it was common for the Act itself to set aside some land for this purpose. There is no suggestion that the glebe was so allotted and the parish council do not rely upon class a. Class b refers to land that, by immemorial custom, the local inhabitants are entitled to use for sports and pastimes. This is the traditional village green with its memories of maypole dancing, cricket and warm beer. Immemorial custom means in theory a custom that predates the accession of Richard I in 1189. Although, as I shall in due course explain, the law may presume a custom of such antiquity on evidence that a historian might regard as somewhat slender, the parish council do not rely upon class b. They take their stand on class c, which was first introduced by the Act of 1965 itself. It is no longer necessary to resort to fictions or presumptions about what was happening in 1189. It is sufficient that the inhabitants of the locality have in fact used the land as of right for lawful sports and pastimes for more than 20 years.
The main purpose of the Act of 1965 was to preserve and improve common land and town and village greens. It gave effect to the Report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462), which emphasised the public importance of such open spaces. Some commons and greens were in danger of being encroached upon by developers because of legal and factual uncertainties about their status. Others were well established as commons or greens but there was uncertainty about who owned the soil. This made it difficult for the local people to make improvements (for example, by building a cricket pavilion). There was no one from whom they could obtain the necessary consent.
The Act of 1965 dealt with these problems by creating local registers of common land and town and village greens that recorded the rights, if any, of the commoners and the names of the owners of the land. If no one claimed ownership of a town or village green, it could be vested in the local authority. Regulations made under the Act prescribed time-limits for registrations and objections and the determination of disputes by Commons Commissioners. In principle, the policy of the Act was to have a once-and-for-all nationwide inquiry into commons, common rights and town and village greens. When the process had been completed, the register was conclusive. By section 2(2), no land capable of being registered under the Act was to be deemed to be common land or a town or village green unless so registered.
In the case of greens in classes a or b, this meant that unless they were registered within the prescribed time-limit, they could not be registered as such thereafter. (There is a question about whether non‑registration of a class a green also extinguished the prior statutory rights of exercise and recreation, but that need not detain us now.) But a classic green could come into existence upon the expiry of any period of 20 years’ user. This might be after the original registration period had expired. Section 13 therefore provided for the amendment of the register in various situations including where ‘(b) any land becomes common land or a town or village green…’. Sunningwell Parish Council applied to Oxfordshire County Council, as registration authority, for an amendment to add the glebe to the register on the ground that it had become a village green by 20 years’ user ending on 1 January 1994.
The board objected to the application. The regulations made under section 13 prescribe no procedure for resolving disputes over applications for amendment. The jurisdiction of the Commons Commissioners was limited to disputes arising out of the original applications, all of which have now been determined. The county council were left free to decide upon their own procedure for dealing with an application to amend. They decided to hold a non‑statutory public inquiry and appointed Mr Vivian Chapman, a barrister with great experience of this branch of the law, to act as inspector. Mr Chapman sat for two days in the village hall, received written and oral evidence and heard legal submissions. He submitted a report to the county council in which he made various findings of fact, which the county council accepted. I shall refer to these later. But he recommended that the application be refused on the ground that the user of the land by the villagers had not been shown to be ‘as of right.’ In coming to this conclusion, he followed the decision of the Court of Appeal in R v Suffolk County Council, ex parte Steed (1996) 75 P&CR 102*, which held that ‘as of right’ meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. In the present case, the witnesses all said that they thought they had the right to use the glebe. But they did not say that they thought that the right was confined to inhabitants of the village. Some thought it was a general public right and others had no views on the matter. This was held to be fatal to the application.
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*Editor’s note: Also reported at [1997] 1 EGLR 131
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The parish council applied for judicial review of the county council’s decision. Buxton J refused leave and the application was renewed before the Court of Appeal (Lord Woolf MR, Waller and Robert Walker LJJ). They decided that they were bound by R v Suffolk County Council, ex parte Steed to dismiss the application. But they also expressed the view that your lordships might think that that case was wrongly decided. The Court of Appeal therefore granted leave to move for judicial review, dismissed the substantive application and gave leave to appeal to your lordships’ house.
The principal issue before your lordships thus turns on the meaning of the words ‘as of right’ in the definition of a green in section 22(1). The language is plainly derived from judicial pronouncements and earlier legislation on the acquisition of rights by prescription. To put the words in their context, it is therefore necessary to say something about the historical background.
Any legal system must have rules of prescription that prevent the disturbance of long-established de facto enjoyment. But the principles upon which they achieve this result may be very different. In systems based on Roman law, prescription is regarded as one of the methods by which ownership can be acquired. The ancient Twelve Tables called it usucapio, meaning literally a taking by use. A logical consequence was that, in laying down the conditions for a valid usucapio, the law concerned itself with the nature of the property and the method by which the acquirer had obtained possession. Thus usucapio of a res sacra or res furtiva was not allowed and the acquirer had to have taken possession in good faith. The law was not concerned with the acts or state of mind of the previous owner, who was assumed to have played no part in the transaction. The periods of prescription were originally one year for moveables and two years for immoveables, but even when the periods were substantially lengthened by Justinian and some of the conditions changed, it remained in principle a method of acquiring ownership. This remains the position in civilian systems today.
English law, on the other hand, has never had a consistent theory of prescription. It did not treat long enjoyment as being a method of acquiring title. Instead, it approached the question from the other end by treating the lapse of time as either barring the remedy of the former owner or giving rise to a presumption that he had done some act that conferred a lawful title upon the person in de facto possession or enjoyment. Thus the medieval real actions for the recovery of seisin were subject to limitation by reference to various past events. In the time of Bracton the writ of right was limited from the accession of Henry I (1100). The Statute of Merton (1235) brought this date up to the accession of Henry II (1154) and the Statute of Westminster 1275 extended it to the accession of Richard I in 1189.
The judges used this date, by analogy, to fix the period of prescription for immemorial custom and the enjoyment of incorporeal hereditaments such as rights of way and other easements. In such cases, however, the period was being used for a different purpose. It was not to bar the remedy but to presume that enjoyment was pursuant to a right having a lawful origin. In the case of easements, this meant a presumption that there had been a grant before 1189 by the freehold owner.
As time went on, however, proof of lawful origin in this way became for practical purposes impossible. The evidence was not available. The judges filled the gap with another presumption. They instructed juries that if there was evidence of enjoyment for the period of living memory, they could presume that the right had existed since 1189. After the Limitation Act 1623, which fixed a 20-year period of limitation for the possessory actions such as ejectment, the judges treated 20 years’ enjoyment as by analogy giving rise to the presumption of enjoyment since 1189. But these presumptions arising from enjoyment for the period of living memory or for 20 years, though strong, were not conclusive. They could be rebutted by evidence that the right could not have existed in 1189; for example, because it was appurtenant to a building that had been erected since that date. In the case of easements, the resourcefulness of the judges overcame this obstacle by another presumption, this time of a lost modern grant. As Cockburn CJ said in the course of an acerbic account of the history of the English law of prescription in Bryant v Foot (1867) LR 2 QB 161 at p181:
Juries were first told that from user, during living memory, or even during 20 years, they might presume a lost grant or deed; next they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told, not only that they might, but also that they were bound to presume the existence of such a lost grant, although neither judge nor jury, nor any one else, had the shadow of a belief that any such instrument had ever really existed.
The result of these developments was that, leaving aside the cases in which it was possible to show that: (a) the right could not have existed in 1189; and (b) the doctrine of lost modern grant could not be invoked, the period of 20 years’ user was in practice sufficient to establish a prescriptive or customary right. It was not an answer simply to rely upon the improbability of immemorial user or lost modern grant. As Cockburn CJ observed, the jury were instructed that if there was no evidence absolutely inconsistent with there having been immemorial user or a lost modern grant, they not merely could but should find the prescriptive right established. The emphasis was therefore shifted from the brute fact of the right or custom having existed in 1189 or there having been a lost grant (both of which were acknowledged to be fictions) to the quality of the 20-year user that would justify recognition of a prescriptive right or customary right. It became established that such user had to be, in the Latin phrase nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner. (For this requirement in the case of custom, see Mills v Colchester Corporation (1867) LR 2 CP 476 at p486). The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been 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, in the second, because the owner would not have known of the user and, in the third, because he had consented to the user, but for a limited period. So in Dalton v Angus (1881) 6 App Cas 740 at p773, Fry J (advising the House of Lords) was able to rationalise the law of prescription as follows:
the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.
In the case of easements, the legislature intervened to save the consciences of judges and juries by the Prescription Act 1832, of which the short title was ‘An Act for shortening the Time of Prescription in certain cases.’ Section 2 provided:
No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement… when such way or other matter… shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of 20 years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated…
Thus in a claim under the Act, what mattered was the quality of enjoyment during the 20-year period. It had to be by a person ‘claiming right thereto’ or, in the language of section 5 of the same Act, which dealt with the forms of pleadings, ‘as of right’. In Bright v Walker (1834) 1 CrM&R 211 at p219, two years after the passing of the Act, Parke B explained what these words meant. He said that the right must have been enjoyed ‘openly and in the manner that a person rightfully entitled would have used it…’ and not by stealth or by licence. In Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229 at p239, Lord Lindley said that the words ‘as of right’ were intended ‘to have the same meaning as the older expression nec vi nec clam nec precario.’ (See also per Cotton LJ in Earl de la Warr v Miles (1881) LR 17 ChD 535 at p596.)
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My lords, I pass now from the law concerning the acquisition of private rights of way and other easements to the law of public rights of way. Just as the theory was that a lawful origin of private rights of way could be found only in a grant by the freehold owner, so the theory was that a lawful origin of public rights of way could be found only in a dedication to public use. As in the case of private rights, such dedication would be presumed from user since time immemorial, that is, from 1189. But the common law did not supplement this rule by fictitious grants or user that the jury were instructed to presume. In Mann v Brodie (1885) 10 App Cas 378 at pp385-386, Lord Blackburn said:
In England the common law period of prescription was time immemorial, and any claim by prescription was defeated by proof that the right claimed had originated within the time of legal memory, that is, since AD 1189. This was, no doubt, an unreasonably long period. And sometimes, by legal fictions of presumed grants, and in part, by legislation, the period required for prescription as to private rights has, in many cases, been practically cut down to a much shorter definite period… But this has never been done in the case of a public right of way.
He contrasted the English law on the subject with that of Scotland, which, as Lord Watson explained at pp390‑391, followed the Roman model:
According to the law of Scotland, the constitution of such a right does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription. Lord Stair states prescription to be a rule of ‘positive law, founded upon utility rather than equity,’ and he adds, that, in Scotland, the common rule is by the course of forty years, ‘but there must be continued possession free from interruption.’ According to Erskine, ‘positive prescription is generally defined by our lawyers as the Romans did usucapion, the acquisition of property by the continued possession of the acquirer for such a time as is described by the law to be sufficient for that purpose’.
In England, however, user for any length of time since 1189 was merely evidence from which a dedication could be inferred. The quality of the user from which dedication could be inferred was stated in the same terms as that required for private rights of way, that is to say, nec vi nec clam nec precario. But dedication did not have to be inferred; there was no presumption of law. In Mann v Brodie Lord Blackburn put the rationale as follows at p386:
where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was.
My lords, I pause to observe that Lord Blackburn does not say that there must have been evidence that individual members of the public using the way believed there had been a dedication. He is concerning himself, as the English theory required, with how the matter would have appeared to the owner of the land. The user by the public must have been, as Parke B said in relation to private rights of way in Bright v Walker (1834) 1 CrM&R 211 at p219, ‘openly and in the manner that a person rightfully entitled would have used it…’. The presumption arises, as Fry J said of prescription generally in Dalton v Angus (1881) 6 App Cas 740 at p773, from acquiescence.
The difficulty in the case of public rights of way was that, despite evidence of user as of right, the jury were free to infer that this was not because there had been a dedication but because the landowner had merely tolerated such use: see Folkestone Corporation v Brockman [1914] AC 338. On this point the law on public rights of way differed not only from Scottish law but also from that applicable to private easements. This made the outcome of cases on public rights of way very unpredictable and was one of the reasons for the passing of the Rights of Way Act 1932, of which section 1(1) provided:
Where a way, not being of such a character that user thereof by the public could not give rise at common law to any presumption of dedication, upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way…
The words ‘actually enjoyed by the public as of right and without interruption for a full period of 20 years’ are clearly an echo of the words ‘actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years’ in section 2 of the Prescription Act 1832. Introducing the Bill into the House of Lords, Lord Buckmaster said that the purpose was to assimilate the law on public rights of way to that of private rights of way. (84 HL Debates (1931-32), col 637). It therefore seems safe to assume that ‘as of right’ in the Act of 1932 was intended to have the same meaning as those words in section 5 of the Act of 1832 and the words ‘claiming right thereto’ in section 2 of that Act.
My lords, this was the background to the definition of a ‘town or village green’ in section 22(1) of the Act of 1965. At that time, there had been no legislation for customary rights equivalent to the Act of 1832 for easements or the Act of 1932 for public rights of way. Proof of a custom to use a green for lawful sports and pastimes still required an inference of fact that such a custom had existed in 1189. Judges and juries were generous in making the required inference on the basis of evidence of long user. If there was upwards of 20 years’ user, it would be presumed in the absence of evidence to show that it commenced after 1189. But the claim could still be defeated by showing that the custom could not have existed in 1189. Thus in Bryant v Foot (1867) LR 2 QB 161, a claim to a custom by which the rector of a parish was entitled to charge 13 shillings for performing a marriage service, although proved to have been in existence since 1808, was rejected on the ground that having regard to inflation it could not possibly have existed in the reign of Richard I. It seems to me clear that class c, in the definition of a village green, must have been based upon the earlier Acts and intended to exclude this kind of defence. The only difference was that it allowed for no rebuttal or exceptions. If the inhabitants of the locality had indulged in lawful sports and pastimes as of right for not less than 20 years, the land was a town or village green. But there is no reason to believe that ‘as of right’ was intended to mean anything different from what those words meant in the Acts of 1832 and 1932.
In Steed‘s case Pill LJ also said ((1996) 75 P&CR 102 at pp111‑112) that ‘as of right’ in the Act of 1965 had the same meaning as in the Act of 1932. In holding that it required ‘an honest belief in a legal right to use… as an inhabitant… and not merely a member of the public’ he followed dicta in three cases on the Rights of Way Act 1932 and its successor legislation, section 31(1) of the Highways Act 1980, which I must now examine.
The first was Hue v Whiteley [1929] 1 Ch 440, a decision of Tomlin J before the Act of 1932. The dispute was over the existence of a public footpath on Box Hill and the judge found at p444 that for 60 years people had ‘used the track to get to the highway and to the public bridle road as of right, on the footing that they were using a public way’. Counsel for the landowner, in reliance on Attorney-General v Antrobus [1905] 2 Ch 188 (which concerned the tracks around Stonehenge), argued that the user should be disregarded because people used the path merely for recreation in walking on Box Hill. The judge said at p445 that this made no difference:
A man passes from one point to another believing himself to be using a public road, and the state of his mind as to his motive in passing is irrelevant. If there is evidence, as there is here, of continuous user by persons as of right (ie, believing themselves to be exercising a public right to pass from one highway to another), there is no question such as that which arose in Attorney-General v Antrobus.
The decision in the case was that the reasons why people used the road were irrelevant. It was sufficient that they used it as of right. I rather doubt whether, in explaining this term parenthetically as involving a belief that they were exercising a public right, Tomlin J meant to say more than Lord Blackburn had said in Mann v Brodie (1885) 10 App Cas 378 at p386, namely that they must have used it in a way that would suggest to a reasonable landowner that they believed |page:98| they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which, as I hope I have demonstrated, depends upon evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose, the actual state of mind of the road user is plainly irrelevant.
Tomlin J’s parenthesis was picked up by the Court of Appeal in Jones v Bates [1938] 2 All ER 237. The defendant asserting a right of footpath adduced overwhelming evidence of user for many years, including evidence of the plaintiff landowner’s predecessors in title that they had never stopped people from using the path because they thought it was a public right of way. The judge in Hastings County Court nevertheless rejected this evidence as insufficient to satisfy section 1(1) of the Act of 1932. The Court of Appeal by a majority held that he must have misdirected himself on the law (there was no right of appeal on fact from a county court) and ordered a new trial. But the case contains some observations on the law, including a valuable exposition by Scott LJ of the background to the Act of 1932. The two majority judgments of Slesser and Scott LJJ both cite Tomlin J’s parenthesis with approval. But the question of whether it is necessary to prove the subjective state of mind of users of the road in addition to the outward appearance of user did not arise and was not discussed.
Slesser LJ, at p241, after citing Tomlin J’s parenthesis, went on to say that ‘as of right’ in the Act of 1932 had the meaning that Cotton LJ had given to those words in the Act of 1832 in Earl de la Warr v Miles (1881) LR 17 ChD 535 at p596: ‘not secretly, not as acts of violence, not under permission from time to time given by the person on whose soil the acts were done.’ This makes one doubt whether he was concerned with the subjective minds of the users.
Scott LJ, at p245 also quoted Tomlin J with approval but went on to say:
It is doubtless correct to say that negatively [the words ‘as of right’] import the absence of any of the three characteristics of compulsion, secrecy or licence — ‘nec vi, nec clam, nec precario‘, phraseology borrowed from the law of easements — but the statute does not put on the party asserting the public right the onus of proving those negatives…
Scott LJ was concerned that the county court judge had placed too high a burden upon the person asserting the public right. If he proved that the right had been used so as to demonstrate belief in the existence of a public right of way, that was enough. The headnote to Jones v Bates [1938] 2 All ER 237 summarises the holding on this point in entirely orthodox terms:
(i) The words in the Rights of Way Act 1932, section 1(1), ‘actually enjoyed by the public as of right and without interruption’, mean that the way has been used without compulsion, secrecy or licence, nec vi, nec clam, nec precario.
Finally in Steed‘s case Pill LJ referred to his own discussion of the subject at first instance in O’Keefe v Secretary of State for the Environment [1996] JPL 42. On the basis of passages from Jones v Bates [1938] 2 All ER 237 he had there expressed the view that ‘as of right’ meant user ‘which was not only nec vi, nec clam, nec precario but was in the honest belief in a legal right to use’. But he rejected the further submission that the users should know the procedures by which the right had come into existence.
My lords, in my opinion the casual and, in its context, perfectly understandable aside of Tomlin J in Hue v Whiteley [1929] 1 Ch 440 has led the courts into imposing upon the time-honoured expression ‘as of right’ a new and additional requirement of subjective belief for which there is no previous authority and which I consider to be contrary to the principles of English prescription. There is, in my view, an unbroken line of descent from the common law concept of nec vi, nec clam, nec precario to the term ‘as of right’ in the Acts of 1832, 1932 and 1965. It is perhaps worth observing that, when the Act of 1832 was passed, the parties to an action were not even competent witnesses and I think that Parke B would have been startled by the proposition that a plaintiff asserting a private right of way on the basis of his user had to prove his subjective state of mind. In the case of public rights, evidence of reputation of the existence of the right was always admissible and formed the subject of a special exception to the hearsay rule. But that is not at all the same thing as evidence of the individual states of mind of people who used the way. In the normal case, of course, outward appearance and inward belief will coincide. A person who believes he has the right to use a footpath will use it in the way in which a person having such a right would use it. But user that is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not. Where parliament has provided for the creation of rights by 20 years’ user, it is almost inevitable that user in the earlier years will have been without any very confident belief in the existence of a legal right. But that does not mean that it must be ignored. Still less can it be ignored in a case like Steed when the users believe in the existence of a right but do not know its precise metes and bounds. In coming to this conclusion, I have been greatly assisted by Mr JG Riddall’s article ‘A False Trail’ in [1997] 61 The Conveyancer and Property Lawyer 199.
I therefore consider that Steed‘s case was wrongly decided and that the county council should not have refused to register the glebe as a village green merely because the witnesses did not depose to their belief that the right to games and pastimes attached to them as inhabitants of the village. That was the only ground upon which Mr Chapman advised the council to reject the application. But Miss Sheila Cameron QC, who appeared for the board, submitted that it should have been rejected for other reasons as well. Although these grounds did not form the basis of any cross-appeal, your lordships considered that rather than put the parties to the expense of further consideration by the county council followed by further appeals, it would be convenient to consider their merits now.
The first point concerned the nature of the activities on the glebe. They showed that it had been used for solitary or family pastimes (walking, tobogganing, family games) but not for anything that could properly be called a sport. Miss Cameron said that this was insufficient for two reasons. First, because the definition spoke of ‘sports and pastimes’ and therefore, as a matter of language, pastimes were not enough. There had to be at least one sport. Second, because the ‘sports and pastimes’ in class c had to be the same sports and pastimes as those in respect of which there could have been customary rights under class b and this meant that there had to be some communal element about them, such as playing cricket, shooting at butts or dancing round the maypole. I do not accept either of these arguments. As a matter of language, I think that ‘sports and pastimes’ is not two classes of activities but a single composite class that uses two words in order to avoid arguments over whether an activity is a sport or a pastime. The law constantly uses pairs of words in this way. As long as the activity can properly be called a sport or a pastime, it falls within the composite class. As for the historical argument, I think that one must distinguish between the concept of a sport or pastime and the particular kind of sports or pastimes that people have played or enjoyed at different times in history. Thus in Fitch v Rawling (1795) 2 HyBl 393, Buller J recognised a custom to play cricket on a village green as having existed since the time of Richard I, although the game itself was unknown at the time and would have been unlawful for some centuries thereafter: see Mercer v Denne [1905] 2 Ch 538 at p553. In Abercromby v Town Commissioners of Fermoy [1900] 1 IR 302 the Irish Court of Appeal upheld a custom for the inhabitants of Fermoy to use a strip of land along the river for their evening passeggiata. Holmes LJ said at p314 that popular amusement took many shapes: ‘legal principle does not require that rights of this nature should be limited to certain ancient pastimes.’ In any case, he said, the Irish had too much of a sense of humour to dance around a maypole. Class c is concerned with the creation of town and village greens after 1965 and in my opinion sports and pastimes includes those activities that would be so regarded in our own day. I agree with Carnwath J in R v Suffolk County Council, ex parte Steed (1995) 70 P&CR 487 at p503, when he said that dog‑walking and playing with children were, in modern life, the kind of |page:99| informal recreation that may be the main function of a village green. It may be, of course, that the user is so trivial and sporadic as not to carry the outward appearance of user as of right. In the present case, however, Mr Chapman found ‘abundant evidence of use of the glebe for informal recreation’, which he held to be a pastime for the purposes of the Act.
This brings me conveniently to Miss Cameron’s second point, which was that the evidence of user was too broad. She said that the evidence showed that the glebe was also used by people who were not inhabitants of the village. She relied upon Hammerton v Honey (1876) 24 WR 603 at p604, in which Sir George Jessel MR said:
if you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom.
That was with reference to a claim to a customary right of recreation and amusement, that is to say, a class b green. Class c requires merely proof of user by ‘the inhabitants of any locality.’ It does not say user only by the inhabitants of the locality, but I am willing to assume, without deciding, that the user should be similar to that which would have established a custom.
In my opinion, however, the findings of fact are sufficient to satisfy this test. It is true that people from outside the village regularly used the footpath. It formed part of a network of Oxfordshire Circular Walks. But there was little evidence of anyone other than villagers using the glebe for games or pastimes. Mr Chapman does record one witness as saying that he had seen strangers enjoying informal recreation there. He summed up the position as follows:
The evidence of the applicant’s witnesses and of the members of the public who gave evidence was that informal recreation on the glebe as a whole (as opposed to use of the public footpath) was predominantly, although not exclusively, by inhabitants of the village. This made sense because there is nothing about the glebe to attract people from outside the village. The objector accepted that the village was capable of being a ‘locality…’
I think it is sufficient that the land is used predominantly by inhabitants of the village.
Miss Cameron’s third and final point was that the use of the glebe was not as of right because it was attributable to neighbourly toleration by successive rectors and the board. She relied upon the following passage in Mr Chapman’s report:
It appears to me that recreational use of the glebe is based on three factors. First, the glebe is crossed by an unfenced footpath so that there is general public access to the land and nothing to prevent members of the public straying from the public footpath. Second, the glebe has been owned not by a private owner but by the rector and then the Board, who have been tolerant of harmless public use of the land for informal recreation. Third, the land has been used throughout for rough grazing so that informal public recreation on the land has not conflicted with its agricultural use and has been tolerated by the tenant or grazier.
I should say that I do not think that the reference to people ‘straying’ from the footpath was intended to mean that recreational user was confined to people who set out to use the footpath but casually or accidentally strayed elsewhere. That would be quite inconsistent with the findings of user, which must have involved a deliberate intention to go upon other parts of the land. I think Mr Chapman meant only that the existence of the footpath made it easy for people to get there. But Miss Cameron’s substantial point was based upon the finding of toleration. That, she said, was inconsistent with the user having been as of right. In my view, that proposition is fallacious. As one can see from the law of public rights of way before 1932, toleration is not inconsistent with user as of right. (See also per Dillon LJ in Mills v Silver [1991] Ch 271 at p281). When proof of a public right of way required a finding of actual dedication, the jury were entitled to find that such user was referable to toleration rather than dedication: Folkestone Corporation v Brockman [1914] AC 338. But this did not mean that the user had not been as of right. It was a finding that there had been no dedication despite the user having been as of right. The purpose of the Act of 1932 was to make it unnecessary to infer an actual dedication and, in the absence of specific rebutting evidence, to treat user as of right as sufficient to establish the public right. Alfred F Beckett Ltd v Lyons [1967] Ch 449, in which the court was invited to infer an ancient grant to the Prince Bishop of Durham, in trust for the inhabitants of the county, of the right to gather coal on the sea shore, was another case in which the question was whether an actual grant could be inferred. One of the reasons given by the Court of Appeal for rejecting the claim was that the coal gathering that had taken place could be referable to tolerance on the part of the Crown as owner of the seashore. But the establishment of a class c village green does not require the inference of any grant or dedication. As in the case of public rights of way or private easements, user as of right is sufficient. Mr Chapman’s remarks about toleration are therefore, as he himself recognised, not inconsistent with the quality of the user being such as to satisfy the class c definition.
Miss Cameron cautioned your lordships against being too ready to allow tolerated trespasses to ripen into rights. As Bowen LJ said in Blount v Layard [1891] 2 Ch 681n at p691:
nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood.
On the other hand, this consideration, if carried too far, would destroy the principle of prescription. A balance must be struck. In passing the Act of 1932, parliament clearly thought that the previous law gave too much weight to the interests of the landowner and too little to the preservation of rights of way that had been for many years in de facto use. As Scott LJ pointed out in Jones v Bates [1938] 2 All ER 237 at p249, there was a strong public interest in facilitating the preservation of footpaths for access to the countryside. And in defining class c town or village greens by reference to similar criteria in 1965, parliament recognised a similar public interest in the preservation of open spaces that had for many years been used for recreational purposes. It may be that such user is attributable to the tolerance of past rectors of Sunningwell, but, as Evershed J said of the origins of a public right of way in Attorney-General v Dyer [1947] Ch 67 at pp85-86:
It is no doubt true, particularly in a relatively small community… that, in the early stages at least, the toleration and neighbourliness of the early tenants contributed substantially to the extent and manner of the use of the lane. But many public footpaths must be no less indebted in their origin to similar circumstances, and if there is any truth in the view (as stated by Chief Justice Cardozo) that property like other social institutions has a social function to fulfil, it may be no bad thing that the good nature of earlier generations should have a permanent memorial.
I would allow the appeal and direct Oxfordshire County Council to register the glebe as a village green.
LORD HOBHOUSE OF WOODBOROUGH and LORD MILLETT agreed with Lord Hoffmann and did not add anything.
Appeal allowed.
