Commons — Village green — Whether council entitled to refuse registration where right claimed based on 20 years’ use after January 2 1970
During the
19th century, and in pursuance of powers in a local Act, two areas of land
which became known as the ‘People’s Park’ were acquired by the local borough
council. The land was to be held for the freemen in replacement for the
redemption of rights of shackage. It was grazed by the freemen until 1944 when
they agreed to vest their rights in trustees. Thereafter the trustees let the
grazing. There was also some evidence of recreational use by the public from
time to time. An application to register the park under the Commons
Registration Act 1965 was withdrawn in 1971. In 1987 an area of 15.8 acres of
the uncultivated land was acquired by the Secretary of State for Health for the
purposes of constructing a hospital. In 1992 the applicants in the present case
applied to the respondent county council for the registration of the land as a
village green under the 1965 Act on the basis that the park had been used as of
right for a period of 20 years by local inhabitants. Following an objection by
the Secretary of State, the application was rejected on the grounds that the
usage was not referable to a ‘locality’ within the meaning of section 22 and
because the usage relied on was not the result of any change of circumstances
since 1970. The applicants appealed against the decision of Carnwath J ([1995]
2 EGLR 233), who had dismissed their application for judicial review.
village green is sought based on 20-years use, and use post-January 1970, the
evidential safeguards present in the authorities dealing with the establishment
of a customary right should be imported. The application failed on the evidence
of use as of right. The use did not demonstrate belief in a legal right to use
and, even if it did, there was no sufficient definition of the right asserted.
The failure to register a green under section 1(2)(a) of the 1965 Act
does not have the effect of extinguishing the customary rights over the land.
An unregistered green would not be deemed to be a green, as registered land
would be, but it may still be proved by evidence to be a green. Amendment of
the register is possible under section 13 when a green is established as one by
20-years use after January 2 1970, even if it could have been, but was not,
registered as a green by customary rights under section 1(2)(a). Quaere
whether the effect of registration creates rights to indulge in sports and
pastimes.
The following
cases are referred to in this report.
Bolton
Metropolitan District Council v Secretary of
State for the Environment [1995] 1 WLR 1176; (1995) 71 P&CR 309; [1995]
3 PLR 37; [1995] JPL 1043, HL
Brocklebank
v Thompson [1903] 2 Ch 344
Corpus
Christi College, Oxford (President and Scholars) v
Gloucestershire County Council [1983] QB 360; [1982] 3 WLR 849; [1982] 3
All ER 995; (1982) 81 LGR 29; 46 P&CR 9, CA
Forbes v Ecclesiastical Commissioners (1872) LR 15 Eq 51
Hammerton
v Honey (1876) 24 WR 603
Hue v Whiteley [1929] 1 Ch 440
Jones v Bates [1938] 2 All ER 237
Mercer v Denne [1905] 2 Ch 538
Mills v Silver [1991] Ch 271; [1991] 2 WLR 324; [1991] 1 All ER
449; (1990) 61 P&CR 366, CA
New
Windsor Corporation v Mellor [1975] Ch 380;
[1975] 3 WLR 25; [1975] 3 All ER 44; (1975) 73 LGR 337; 30 P&CR 429, CA
O’Keefe v Secretary of State for the Environment [1996] JPL 42
R v
Joliffe (1823) 2 B&C 54
Turnworth
Down, Dorset, In re [1978] Ch 251; [1977] 3 WLR
370; [1977] 2 All ER 105; (1976) 33 P&CR 192
Tyson v Smith (1838) 9 A&E 406
This was an
appeal by David Donald Steed and Colin Malcom Steed from the decision of
Carnwath J ([1995] 2 EGLR 233) who had dismissed their application for judicial
review of the decision of the respondents, Suffolk County Council, declining to
register land as a village green under the Commons Registration Act 1965.
Gerard Ryan QC
and Martin Porter (instructed by Barker Gotelee, of Ipswich) appeared for the
appellants; Nigel Thomas (instructed by the solicitor to Suffolk County
Council) represented the respondents; Vivian Chapman (instructed by Mills &
Reeve, of Cambridge) represented the Secretary of State.
Giving
judgment at the invitation of Butler-Sloss
LJ, Pill LJ said: On
February 27 1992 Mr David Steed and Mr Colin Steed (the appellants) applied to
Suffolk County Council (the respondents) for registration of the People’s Park,
Sudbury, Suffolk (‘the land’), as a town green under the Commons Registration
Act 1965 by way of amendment of the register under section 13. The land is
about 15.8 acres in extent and is within the urban fabric of the town of
Sudbury as depicted on the current ordnance survey plan and to the north-east
of the town centre. The land had been purchased by the Borough of Sudbury in
the 1870s and renamed People’s Park. Its use was later regulated by a scheme
approved by the High Court and administered by trustees. There was grazing and
recreational use. In 1987 the land, together with other land, was acquired from
the trustees by the Secretary of State for Health with the object of the
construction on it by the regional health authority of a hospital.
The Secretary
of State objected in writing to the application, which was refused by the
respondents on September 3 1992. The planning committee resolved that the
application ‘be rejected on the grounds that it failed to establish that all
the statutory criteria for amendment of the register of town and village Greens
were met’.
This is an
appeal against the dismissal by Carnwath J of the appellants’ application to
quash that decision of the respondents. The court heard submissions on behalf
of the Secretary of State (who was heard in opposition to the motion under Ord
53 r 9(1)) and the regional
substantial sum of money has been spent on site for preparatory work for the
hospital.
The
application
The
application to the respondents was made on form 30 annexed to the Commons
Registration (New Land) Regulations 1969 (SI 1969 No 1843). Those regulations
were made by virtue of powers conferred in sections 13 and 19 of the Act. Form
30 is headed ‘Application for the registration of land which became a town or
village green after 2 January 1970’. The question ‘On what date did the land
become a town or village green?’ is answered ‘1st August 1990 on completion of
20 year period from 31st July 1970’. The question ‘How did the land become a
town or village green?’ is answered as follows:
By the use
thereof by the local inhabitants ie the inhabitants of Sudbury. Lawful sports
and pastimes including amongst other things football, dog walking, mushroom
picking, fetes, children’s games, kite flying, cricket, neighbourhood access,
rounders.
In answer to a
later question inquiring if there are any other facts relating to the
application which ought to be brought to the attention of the registration
authority, it is stated:
The
inhabitants have used People’s Park for lawful sports and pastimes ‘as of
right’ for the 20 year period 1970–1990. Same identification of usage pre-1970.
Commencement date from time immemorial.
The
application was supported by 39 forms, six of which were signed by more than
one person, completed by local residents and giving particulars of use of the
land. A detailed statement in support was submitted by Mr SJ Blackwell,
resident and former borough surveyor. The detailed written objection of the
Secretary of State was supported by statements from four trustees of the
Sudbury Common Lands Charity, who sold the land to the Secretary of State. The
appellants and the Open Spaces Society commented in writing and in detail upon
the objections.
When the
planning committee considered the application, all the above material was
available to them together with a report prepared by the county secretary and
solicitor, who had obtained counsel’s opinion. The recommendation in the report
was for rejection of the application.
The appellants
claim that the respondents were misdirected in law in the solicitor’s report.
Upon the evidence and a proper legal direction, the respondents ought to have
registered the land as a town green, it is submitted. Further, procedural
impropriety is alleged in a failure of the respondents to give the consideration
to the application which the Act and regulations required. The application
should be remitted to the respondents for reconsideration.
Town or
village green
The Act
followed in time the report in 1958 of a Royal Commission on Common Land.
Further legislation, which has not since been enacted, was plainly
contemplated. The Act has been subject to considerable judicial criticism for
its uncertainty, for example in President & Scholars Corpus Christi
College, Oxford v Gloucestershire County Council [1983] QB 360.
The essential
characteristic of a town or village green as stated in Halsbury’s Laws,
vol 6, para 525, is that:
by immemorial
custom the inhabitants of the town, village, or parish should have acquired the
right of playing lawful games thereon and enjoying it for purposes of
recreation. The nature of the enjoyment is a matter for proof in each case, and
the custom must be limited to the inhabitants of the parish, manor or other
district for which it is claimed.
The classic
statement of the nature of a customary right is that of Sir George Jessel MR in
Hammerton v Honey (1876) 24 WR 603:
There are
certain rights which may be claimed by custom as distinct from prescription.
What is called a right of recreation and amusement, of air and exercise, or the
playing of all manner of lawful games and pastimes, is a right in the nature of
an easement which may well be claimed by custom.
Now, what is
a custom? A custom, as I understand it, is local common law. It is common law
because it is not statute law; it is local law because it is the law of a
particular place as distinguished from the general common law. Now, what is the
meaning of local common law? Local common law, like general common law, is the
law of the country as it existed before the time of legal memory, which is
generally considered the time of Richard I. Therefore, when people allege a
custom they allege that which they call a custom as having been the law of the
place before the time of legal memory . . .
After all,
whatever definition you may give to custom and prescription, we all know that
they are legal fictions invented by judges for the purpose of giving a legal
foundation or origin to long usage. I do not suppose anybody imagines that in
the case of prescription there has been a lost grant, or of a custom that there
has been from time immemorial a common law of the particular place, and the
meaning and substance of the old law is merely this — that when you find
long-continued usage which can have a legal origin, then, with the view of
preserving to the people claiming them the acquired possession of the rights of
property or rights of easement which they have so long enjoyed, you shall
attribute these rights, if possible, to a legal origin so as to support them… .
I agree that,
the nature of custom being, as it is, local law, you can only get rid of it in
the same way as other local laws are got rid of, namely, by Act of Parliament.
I am not aware of any other means. Of course, it is opposed to the true notion
to suppose there is such other means, but that is an additional reason why the
judges have been very careful, not only in restricting the custom to certain
classes of cases, but also in seeing that the custom is properly and strictly
proved. If there is such a custom in the inhabitants of a vill you never can
get rid of it, as far as I know, by any means short of an Act of Parliament.
Sir George
Jessel also stated that when it is said that ‘custom must be certain,
reasonable, and continuous — that all relates to the evidence of a custom’.
Tindal CJ had stated in Tyson v Smith (1838) 9 A&E 406 at
p421 that:
It is an
acknowledged principle that, to give validity to a custom –which has been well
described to be an usage, which obtains the force of law, and is, in truth, the
binding law, within a particular district or at a particular place, of the
persons and things which it concerns– it must be certain, reasonable in itself,
commencing from time immemorial, and continued without interruption.
Custom, stated
Stirling LJ in Mercer v Denne [1905] 2 Ch 538 at p582 is ‘truly
described as a local law’.
The 1965 Act
became law against the background that such customary rights existed. The
central difficulty about construing the Act is in considering whether it was
intended merely or primarily to provide a mechanism for registering rights or
whether it has the potential to destroy existing rights and permit the creation
of new rights.
In section 22
of the Act, the interpretation section, it is stated that:
‘town or
village green’ means land which has been allotted by or under any Act for the
exercise or recreation of the inhabitants of any locality or on which the
inhabitants of any locality have a customary right to indulge in lawful sports
and pastimes or on which the inhabitants of any locality have indulged in such
sports or pastimes as right for not less than twenty years.
(Lord Denning
in the Corpus Christi College case referred to the three categories
within the definition as classes a, b and c and I will use the same terms.)
As the judge
pointed out, the statutory definition follows the recommendations of the Royal
Commission in adopting a three-part definition but class c is different from
that recommended by the commission which was to include:
in a rural
parish any unenclosed open space which is wholly or mainly surrounded by houses
or their curtilages and which has been continuously and openly used by the
inhabitants for all or any such purposes (lawful sports and pastimes) during a
period of at least 20 years without protest or permission from the owner of the
fee simple or the Lord of the Manor
(para 403 of
report). It may be noted that it has been held that a regular usage of 20 years
unexplained and uncontradicted may be sufficient to justify a finding of the
existence of an immemorial custom: (Brocklebank v Thompson [1903]
2 Ch 344, citing R v Joliffe (1823) 2 B&C 54.) As will have
appeared from the
the third part of the definition, class c, use for lawful sports and pastimes
by the inhabitants as of right for the 20 years after January 2 1970, the 20
years being said to commence from July 31 1970.
Statutory
framework
It is
necessary to set out further extracts from the Act and Regulations. Section 1,
in so far as is material provides:
(1) There
shall be registered, in accordance with the provisions of this Act and subject
to the exceptions mentioned therein, —
(a)
land in England or Wales which is common land or a town or village green;
…
(2) After the
end of such period, not being less than three years from the commencement of
this Act, as the Minister may by order determine — [in the event July 31 1970]
(a) no
land capable of being registered under this Act shall be deemed to be common
land or a town or village green unless it is so registered; and
(b) no
rights of common shall be exercisable over any such land unless they are
registered either under this Act or under the Land Registration Acts 1925 and
1936.
(3) Where any
land is registered under this Act but no person is registered as the owner
thereof under this Act or under the Land Registration Acts 1925 and 1936, it
shall —
(a) if
it is town or village green, be vested in accordance with the following
provisions of this Act …
(Section 8
provides that in certain circumstances the Commons Commissioner shall, in the
case of a town or village green, direct the registration authority to register
as the owner of the land a local authority.)
Section 3
provides:
(1) For the
purposes of registering such land as is mentioned in section 1(1) of this Act
and rights of common over and ownership of such land every registration
authority shall maintain —
(a) a
register of common land; and
(b) a
register of town or village greens;
and
regulations under this Act may require or authorise a registration authority to
note on those registers such other information as may be prescribed.
(2) Any register
maintained under this Act shall be open to inspection by the public at all
reasonable times.
Section 10
provides:
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.
Section 13
provides:
Regulations
under this Act shall provide for the amendment of the registers maintained
under this Act where —
(a)
any land registered under this Act ceases to be common land or a town or
village green; or
(b)
any land becomes common land or a town or village green; or
(c)
any rights registered under this Act are apportioned, extinguished or released,
or are varied or transferred in such circumstances as may be prescribed.
Regulation 3
under the heading ‘Land becoming common land or a town or village green’,
provides, in so far as is material:
(1) Where,
after 2nd January 1970, any land becomes common land or a town or village
green, application may be made subject to and in accordance with the provisions
of these Regulations for the inclusion of that land in the appropriate register
and for the registration of rights of common thereover and of persons claiming
to be owners thereof.
Regulation 3
and subsequent regulations state how an application for registration is to be
made and what action is required of the registration authority.
Regulation 6(1)
provides:
As soon as
possible after the date by which statements in objection to an application have
been required to be submitted, the registration authority shall proceed to the
further consideration of the application, and the consideration of statements
(if any) in objection thereto, in accordance with the following provisions of
this regulation.
The rest of
the regulation provides for the consideration by the authority of written and
signed statements of objection and the right of applicants to an opportunity to
deal with the contents of objections. Regulation 8 specifies the action to be
taken by a registration authority which has … ‘disposed of an application …’
There are
detailed notes to form 30 prescribed by the regulation. Note 5, under the heading
‘How land can become a town or village green’ provides:
Land can
become a town or village green after 2nd January 1970 in one of the following
ways: —
(1) By or
under an Act of Parliament otherwise than as substituted land (as to
substituted land, see category (4) below).
(2) By
customary right established by judicial decision.
(3) By the
actual use of the land by the local inhabitants for lawful sports and pastimes
as of right for not less than 20 years.
(4) By
substitution or exchange for other land which has ceased to be a town or
village green under — (enactments) …
Consideration
The evidence
submitted to support the application to the respondents consisted of
questionnaires completed by residents of Sudbury between May and December 1991.
The printed document is headed, ‘Questionnaire for collecting evidence to
create a new green’. The uses mentioned are summarised in the written
submissions of counsel to this court as ‘The playing of football, cricket and
rounders, walking with and without dogs, picnics, flying kites, mushroom
picking, jogging, children’s playing and cycling’. The ‘walking of dogs’
features prominently on the forms and ‘fetes’ and ‘neighbourhood access’ are
also mentioned in the application. Almost all the forms include negative answers
to questions whether the owner’s permission to use the land had been requested
and whether the writer had ever been prevented from using the land. In their
statements, the former trustees say that permissions to use were given to the
local football club and for activities such as fairs and galas.
In his report,
the county solicitor identified the issues as follows:
In considering
whether the criteria in the third limb of section 22 are met, there are a
number of issues between the applicant and the objector, namely: —
(a) Is there
a specific locality the inhabitants of which have indulged in lawful sports and
pastimes?
(b) Has the
use been for lawful sports and pastimes?
(c) Has the
user been as of right?
(d) Has there
been 20 years user?
The four issues
are then considered, with considerable references to counsel’s opinion. The
solicitor concludes:
Counsel has
advised that the application does not succeed on the 1st and 4th of the
statutory criteria. In addition, the evidence that it meets the 2nd criteria is
scant while in respect of the 3rd it is inconclusive either way.
Counsel had
advised that most of the evidence came from residents of the area immediately
surrounding the land and that did not in law amount to a ‘locality’. He also
advised that because the uses relied on are claimed to have existed before 1970
the land cannot have ‘become’ a town green after 1970 within the meaning of the
Act.
The minute of
the meeting of September 3 1992 set out the background and continued:
The applicant
claimed that People’s Park had become a village green by virtue of 20 years use
by local inhabitants. The County Secretary and Solicitor, however, had accepted
counsel’s advice that the applicant had failed to satisfy the four criteria
needed to establish a new village green. The local member urged the committee
to hold a public inquiry into the application. The committee considered the
arguments that had been put forward by both supporters of and objectors to the
application.
The resolution
already noted is then set out.
Judgment
and submissions
The judge
expressed his agreement with the respondents’ decision. He stated:
First, the
evidence presented by the applicants in the present case did not in terms give
any indication of a right arising since 1970. There was evidence of
recreational use since 1970. But there was no indication that those using the
land did so by virtue of a right claimed to have arisen since 1970. On the
contrary the use is alleged to have continued virtually unchanged since as far
back as the 1920’s or before. There is no hint of anything having happened
since 1970 which might be thought to give rise to a right which did not
previously exist.
Secondly, the
evidence presented in the forms does not link the use to a right claimed by
reference to any particular locality. The use appears to have been mainly by
those living in the nearby streets but the evidence does not show that they
were asserting a right defined by reference to that, or any other, area.
Dealing with
evidence of earlier use, Carnwath J added:
Such a claim,
if well founded, could have been registered in 1970. In the absence of
registration it can no longer be relied on. It is clearly not something by
virtue of which the land can be said to have ‘become’ a village green since
1970.
When dealing
earlier in his judgment with the word ‘locality’, the judge stated:
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. In the present case the
‘locality’ on which the application for judicial review and the supporting
affidavit rely is Sudbury itself; I agree that this is the only realistic basis
on which to proceed.
For the appellants,
Mr Gerard Ryan QC submits that what constitutes a ‘locality’ for present
purposes is a question of fact in every case subject only to the requirement
that the extent of the locality is ascertainable. A pragmatic approach is
required. In proving the right enjoyed, it is not necessary to show its
exercise by inhabitants of every part of the locality.
The fact that,
on the evidence, the land was a town green before 1970 does not prevent
registration as a third category town green by virtue of use for 20 years from
1970, it is submitted. The effect of section 1(2)(a) is that the status
of land which qualified for registration but was not registered is permanently
disregarded. Section 13(b) does not require reconsideration of the
earlier qualification; it is made irrelevant. Completion of the new qualifying
period is an event independent of the original qualification and the right to
have the register amended is not defeated by the presence of the word
‘becomes’. For the purposes of registration, the previous qualification should
be ignored. In cases where there was a failure to register customary rights by
1970, parliament did not intend so drastic a sanction as to prevent
registration for all time when pre-1970 rights continue to be exercised after
that date.
Mr Ryan
submits that there was a sufficient assertion by the informants of use ‘as of
right’. As well as the denial of permission granted, there was the signed
assertion that the land was the ‘People’s Park’.
The procedural
challenge is on the basis that the respondents, as registration authority, gave
no sufficient attention to the facts. They were not entitled to devolve their
duty to consider the evidence to counsel. ‘Consideration’ of the application
under regulation 6 requires an ‘element of inquisition’. The respondents must
analyse the evidence and, if necessary, make inquiries of their own. It was
impermissible to relate propositions of law to unconsidered facts.
Mr Ryan
submits that the application should be remitted to the respondents for reconsideration
first because they acted on an erroneous view of the law and, second, and in
any event, because there was no ‘consideration’ of the application within the
meaning of the regulations.
On the effect
of the word ‘becomes’ in section 13(b) of the Act Mr Vivian Chapman, for
the Secretary of State and the Health Authority, as on other points, seeks to
uphold the finding of the judge. Because the evidence showed no difference in
the use before 1970 from that after 1970, the land could not ‘become’ a town
green registerable under the Act during the period after 1970. There must be
some change in the facts on the ground, it is submitted. Mr Chapman relies,
though the judge did not, upon the decision of this court in President &
Scholars Corpus Christi College, Oxford v Gloucestershire County Council
[1983] QB 360. It is submitted that the word ‘ceases’ in section 13(a)
was construed in that case as postulating ‘a beginning and ceasing to be’
(Oliver LJ at p378B), and ‘becomes’ requires a factual change on the ground.
Mr Thomas, for
the respondents, submits that the evidence demonstrates a sufficient
consideration of the application. The material submitted by the appellants was
available to members along with the solicitor’s report. It was necessary for
counsel to assess the evidence in order to give legal advice.
Locality
and ‘as of right’
The
application must be treated for what it purports to be, that is, an application
for the registration for a ‘new’ class c town green for the town of Sudbury by
virtue of the third part of the definition in section 22 of the Act. It is new
not only as being within class c, but in relying on post-January 1970 use.
However, I approach the issue on the basis that it is no trivial matter for a
landowner to have land, whether in public or private ownership, registered as a
town green and that the evidential safeguards present in the authorities
already cited dealing with the establishment of a customary right (class b)
should be imported into a class c case. Use, as of right, and as inhabitants of
Sudbury, for sports and pastimes must be ‘properly and strictly proved’. Mr
Ryan rightly agreed that the requirements of reasonableness, certainty and
uninterrupted use are imported into class c cases. Considering usage, Sir
George Jessel MR stated in Hammerton:
Again what
must be the usage proved? It must not only be consistent with the custom
alleged, but, if I may use the expression, not too wide. For instance, 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 the
locality must be certain was confirmed by Lord Denning MR in New Windsor
Corporation v Mellor [1975] Ch 380, at p387B.
In my
judgment, the application inevitably failed on the evidence submitted. I would
accept that the application does not necessarily fail because the users of the
land are in the main those residents of Sudbury nearest to it, nor does it fail
for lack of proof of continuous use. Where the evidence fails, and fails by a
long way in my judgment, is in establishing use of the land for sports and
pastimes as of right as inhabitants of Sudbury. The expression ‘as of right’,
in this context, requires a belief in the users that they are exercising a
right enjoyed by the inhabitants of Sudbury to use the land for sports and
pastimes. The expression ‘as of right’ has the same meaning in this Act as it
has in the highways Acts, as to which see Hue v Whiteley [1929] 1
Ch 440, at p445 per Tomlin J, Jones v Bates [1938] 2 All
ER 237 and O’Keefe v Secretary of State for the Environment
[1996] JPL 42, citing Mills v Silver [1991] Ch 271. There must,
in my judgment, be an honest belief in a legal right to use, the legal right in
this case being the right as an inhabitant of Sudbury, and not merely a member
of the public, to indulge in sports and pastimes on the land. I do not propose
to dwell on how much of the use described in the answers to questionnaires can
be described as ‘sports and pastimes’ because, on the view I take of the
expression ‘the inhabitants . . of any locality as of right’, the evidence
falls far short of establishing the requisite use. The use does not demonstrate
belief in a legal right to use and, even if it did, there is no sufficient
definition of the right asserted. It follows that I agree with
would dismiss the appeal on that ground.
‘Becomes’
Consideration
of the first of the judge’s grounds is however appropriate, especially having
regard to the most helpful submissions addressed to the court. Had the land
become a town green within the meaning of that term in section 13(b) of
the Act? Construing the word ‘becomes’ in section 13(b) does involve
some assessment of the general effect of the Act, upon which differing views
have been expressed. I agree with the judge and with Mr Ryan, that the Corpus
Christi College case does not assist in the present context. The decision
was peculiar to the two-limb definition of ‘common land’ in the context of
registration of common rights. On the question whether ‘becomes’ in section 13(b)
requires some change in the facts on the ground, the case does not assist.
Having regard
to the nature of customary rights, as explained in Hammerton, I do not
consider that a failure to register a town green under section 1(2)(a)
of the Act has the effect of extinguishing the customary rights over the land.
The unregistered green shall not be ‘deemed’ to be a green, as registered land
would be, but it may still be proved by evidence to be a green. That view is
supported by note 5 to form 30 (above) which contemplates the existence of
customary rights after 1970.
In Mellor
Lord Denning MR, at p387E, cited Hammerton as authority for the
proposition that a right, once acquired by custom, can only be extinguished by
Act of Parliament and added that, ‘no statute can take away that right by a
side-wind. It can only be done by express words: see Forbes v Ecclesiastical
Commissioners (1872) LR 15 Eq 51′.
In re Turnworth Down, Dorset [1978] Ch 251 Oliver J stated at
p260G:
It is not
said, it is true, what is the consequence of non-registration of a town or
village green, except to the extent that section 1(2)(a) provides that,
after the end of the specified period:
‘… no land
capable of being registered under this Act shall be deemed to be common land or
a town or village green unless it is so registered’.
On the face
of it it seems that the local inhabitants are merely left to bear with such
fortitude as they can command the fact that the land … is not deemed to be a
town or village green.
I agree with
Mr George Laurence QC, in his opinion to the Countryside Commission as published
by the Open Spaces Society (Getting Greens Registered 1995), that Oliver
J was indicating in that passage that, ‘the inhabitants will need very little
fortitude indeed because, despite the fact that their town or village green is
not on the register, their rights to enjoy it remain undisturbed’. Oliver J
also stated (at p260E) that the primary purpose of the Act is ‘not to derogate
from the [common] rights but to provide for their registration and indeed to
protect them’.
The 1969
Regulations make provision for the registration of ‘new’ greens, that is,
greens which did not exist on January 2 1970. Given that customary rights
continue notwithstanding non-registration, and given the apparent purpose of
the Act to encourage the registration of town greens, I cannot conclude that
parliament intended in the case of continued use after 1970 to prevent the
registration of a new green merely because a customary green had not been
registered in time. The Act envisages the creation of class c greens. The word
‘registered’ appears in both paras (a) and (c) of section 13. In
the context I read the expression ‘land becomes a town or village green’ in
section 13(b) as ‘land becomes registrable as a town or village green’.
The way in which form 30 requires the application to be made supports that
view: ‘Application is hereby made for the registration as a town or village
green of the land described below, which became so registrable after 2nd
January 1970′ (emphasis supplied). Amendment of the register is possible under
the section when a green is established as a class c green after January 2
1970, even if it could have been but was not registered as a class b green
under section 1(1)(a).
Creation
of rights
Mr Chapman
submits that registration of a class c green does not confer on or confirm in
the inhabitants of the locality the right to indulge in lawful sports or
pastimes on the land. Registration deals not with rights but with registration.
The owner can remove the town cricket team from a registered town green.
In Mellor
application was made, within the time-limit imposed by section 1 of the Act, to
register land as a village green by virtue of a customary right and also by
virtue of 20 years user as of right. The Court of Appeal held that the Chief
Commons Commissioner was entitled to find a customary right and it was not
necessary to consider the 20-year user. However Lord Denning MR stated at
p391H:
But the
difficulty about this 20-year user is that the Act does not tell us what
rights, if any, ensue to the inhabitants by virtue of a 20-year user. It
enables the land to be registered as a town or village green, but that mere
fact of registration confers no rights. And at common law 20-year user gives no
rights.
Under the
heading The effect of registration, Lord Denning stated at p392E–G:
… there is
nothing [in the Act] to tell us what the effect of registration is. It confers
no rights in itself. All is left in the air. The explanation is that Parliament
intended to pass another statute dealing with these and other questions on
common land and town or village greens. This Act twice refers to matters which
‘Parliament may hereafter determine’: see section 1(3)(b) and 15(3). I
hope that another statue will not be long delayed. But, if there should be
delay, I would be tempted to infer from this Act of 1965 that Parliament
intended that all land registered as a ‘town or village green’ should be
available for sports and pastimes for the inhabitants …
Browne LJ
stated, at p395G:
I also agree
that as the Act stands, and without further legislation, such user (20 year
user as of right) confers no rights on the public.
On my earlier
findings, the point does not arise for decision in this case but I would
respectfully question whether it is correct that registration of a ‘new’ green
under section 13 of the Act and the regulations does not have the effect of
confirming in the relevant inhabitants a right to indulge in lawful sports and
pastimes on the land. The point was not argued in Mellor which in any
event concerned pre-1970 and not post-1970 use. Lord Denning recognised that
the class c green in section 22 was ‘a new thing which is not known to the
common law’. That proposition cannot, with respect, be challenged but it leaves
open the question whether rights may have been created by statute.
Town or
village greens undoubtedly have a legal existence. They were expressly exempted
from inclosure under section 15 of the Inclosure Act 1845. Section 12 of the
Inclosure 1857 provided, ‘summary means of preventing nuisances in town greens
and village greens’. Section 29 of the Commons Act 1876 provided that, ‘an
encroachment on or inclosure of a town or village green, also any erection
thereon or disturbance or interference with or occupation of the soil thereof
which is made otherwise than with a view of the better enjoyment of such town
or village green or recreation ground, shall be deemed to be a nuisance’.
Section 15 of the Commons Act 1889 brings town and village greens within the
regulatory provisions contained in Part I of that Act. Once it is established
that land is a town or village green, there are protectable rights to use it.
While I accept
that, by its title, the Act is said to be ‘an Act to provide for the
registration … of town or village greens’ and not an Act to amend the law
relating to public rights, section 22 does provide that ‘in this Act unless the
context otherwise requires’, class c land is included within the definition
‘town or village green’. There is no express limitation upon the purposes for which
the land is included within the definition. There is no doubt that the
inhabitants have rights over class a and class b greens and the effect of land
being a class c green should be considered in that context. I find it difficult
to conclude other than that parliament intended, in section 22, to open the way
to the creation of new rights. The right is ‘to indulge in lawful
sports and pastimes’ while avoiding the need to prove an immemorial custom or
legal origin which would establish a class a or class b green. The limitation
of the period of user to 20 years does not offend against principle having
regard to Brocklebank (supra). The land is a town green by virtue
of statute and, once it is a town green, should bear the same incidents as any
other town green. It is the relevant use which, under the statute, creates the
right but once it is registered under section 13, section 10 provides that
registration shall be conclusive of the matters registered. Classes b and c
should be considered together and just as the evidential requirements of class
b are imported into class c, the substantive effect of the required proof is,
in my view, the same in both classes.
The analogy is
not exact but I see class c as a way of establishing rights just as section
1(1) of the Rights of Way Act 1932 (now section 31 of the Highways Act 1980)
provided a means of proving the existence of a highway. Omitting words of
limitation and exception, section 1(1) provided that, ‘where a way … 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’. In Jones v Bates, Scott LJ stated
that the effect of the section was to give ‘a new statutory effect to mere
proof of actual user as of right and without interruption’. An actual
dedication need not be proved. I would construe the class c definition as
having the same effect in making proof of the appropriate user sufficient to
create a right.
The test for
considering whether the rights are established is a stringent one, as stated
earlier in this judgment. That provides protection for those with an interest
in the land. The registration procedure, as laid down in the regulations,
provides further protection by imposing duties upon a registration authority to
send, publish and affix notices (regulation 5(4)) and conferring the right to
object. The regulations, together with the prescribed form 30 and its notes,
appear to me to be drafted on the basis that what is to be registered, if the
application is successful, is a right.
Respondents’
procedure
Had a
different view of the facts by the respondents been a real possibility, I would
not have quashed their decision on the ground of procedural irregularity.
Regulations require them to consider the application and the material supplied
by the applicants and the objectors was available to members. In his report,
the respondents’ solicitor correctly identified the issues. The regulations do
not, in my view, impose on the respondents in present circumstances a duty to
make their own investigations into the use made of the land.
It is right to
acknowledge that the solicitor’s report did lay stress on counsel’s view of the
evidence, which the solicitor adopted, but the members were not precluded from
making their own assessment of the evidence and, according to the council
minute, they considered the arguments on both sides. The issues upon
construction of the Act are such that legal advice was not only helpful but
essential. There was a ‘consideration’ sufficient to satisfy the requirements
of regulation 6. Nothing I say derogates from the duty of council members to
assess the submitted evidence when performing the duty under the regulations.
Costs
The judge
ordered the appellants to pay the costs of the respondents and one half of the
costs of the Secretary of State. According to counsel’s note, the Secretary of
State was deprived of half his costs on the ground that the judge took into
account ‘that part of the problem is due to the failure of successive
Secretaries of State to implement legislation’.
I do not
regard that as a relevant consideration. The Secretary of State for Health
cannot be responsible for parliament’s failure, if it rightly be regarded as
failure, to pass legislation on the management of town greens.
This court
should, in my view, exercise the discretion afresh. The Secretary of State
appeared as landowner and developer of land over which rights were claimed by
the appellants. His interest was quite different from that of the respondents
as registration authority and whose duties were to be performed, it is agreed,
in an impartial manner under the Act and regulations.
The mere fact
that the party claiming costs is the developer will not of itself normally
justify a second set of costs (Bolton Metropolitan District Council v Secretary
of State for the Environment [1995] 1 WLR 1176, per Lord Lloyd at
p1178H). In this case however, in addition to claiming relief against the
registration authority, the appellants sought a declaration that the land was a
town or village green. The Secretary of State appeared at the hearing to
protect his interest as landowner against a claim to rights over that land. In
my judgment, this is one of those cases where the Secretary of State, as well
as the respondents, should be awarded costs.
I would
dismiss the appeal and allow the Secretary of State’s appeal on costs.
Butler-Sloss and Schiemann LJJ agreed and did not add
anything.
Appeal
dismissed.
