Applicant applying for land to be registered as village green under Commons Registration Act 1965 – Inspector concluding inhabitants had indulged in lawful sports and pastimes for not less than 20 years but not “as of right” – County council refusing application on basis of inspector’s report – Whether inspector bound to adopt subjective construction of “as of right” – Application for leave to move for judicial review refused
The applicant applied for land known as Sunningwell Glebe, Oxfordshire, to be registered as a village green. The application was made on the basis that the land had been a village green since January 2 1970 by virtue of section 22(1) of the Commons Registration Act 1965, which defined a village green as “land . . . on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than twenty years”. The application was made because the local inhabitants opposed the intention of the owner of the Glebe land to build housing on part of it. An inspector was appointed to conduct an inquiry. The inspector found that the applicant had shown that the inhabitants had indulged in lawful sports and pastimes for not less than 20 years. However, he concluded that the inhabitants had not shown they had done so “as of right” as defined in R v Suffolk County Council, ex parte Steed [1996] EGCS 122 which construed the phrase as meaning that there was an honest belief in a legal right to the inhabitants, but not the general public, to indulge in lawful sports and pastimes.
Accordingly the inspector advised that the application should be rejected. The county council held a meeting and, in accordance with the inspector’s report and recommendations, rejected the application. The applicant applied for leave to move for judicial review. It contended that ex parte Steed had been decided per incuriam and was incorrect in its subjective construction of “as of right” because it had adopted a line of authorities on the construction of the Rights of Way Act 1932, but had failed to adopt the view expressed in Attorney-General (ex rel Yorkshire Derwent Trust Ltd) v Brotherton [1992] 1 AC 425 that the 1932 Act had been modelled on the Prescription Act 1882. It was submitted that the words “claiming right thereto” in the Prescription Act 1882 had always been construed objectively, and therefore the words “as of right” should also have been construed objectively.
Held The application was dismissed.
The inspector had been correct to conclude that the county council had been duty bound to follow ex parte Steed on the construction of the words “as of right”. In order for the applicant to establish that the inspector had been wrong and the county council had been wrong in following the inspector’s advice, it was necessary for the applicant to circumvent ex parte Steed, and also Jones v Bates [1938] 2 All ER 237, which had applied a similar construction. Ex parte Steed was clearly binding and was contrary to the submissions which had been made by the applicant. The application for leave to move for judicial review was refused.
David Ainger (instructed by Ferguson Bricknell & Co, of Oxford) appeared for the applicant; Nigel Thomas (instructed by the solicitor to Oxfordshire County Council) appeared for the respondent.
