Commons — Village green — Whether council entitled to refuse registration where right not arising in previous 20 years or in relation to a particular locality
During the
19th century, and in pursuance of powers in a local Act, two areas of land
which became known a 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Registration Act 1965 was withdrawn in 1971.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 sought judicial review of that decision.
land in 1971 was withdrawn, any claim that the land at that stage was a town or
village green was lost by July 31 1970 by virtue of section 1(2)(a) of
the 1965 Act. There was no indication that those claiming to use the land for
recreational purposes did so by virtue of a new right claimed to have arisen
since 1970. The use was not linked to a right claimed by reference to any
particular locality.
The following
cases are referred to in this report.
Attorney-General v Antrobus [1905] 2 Ch 188
Beckett
(Alfred F) Ltd v Lyons [1967] Ch 449; [1967]
2 WLR 421; [1967] 1 All ER 833; (1966) 65 LGR 73, CA
Box Hill
Common, In re [1980] Ch 109; [1979] 2 WLR 177;
[1979] 1 All ER 113; (1978) 77 LGR 289; 37 P&CR 181, CA
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
Crake v Supplementary Benefits Commission [1982] 1 All ER 498
Edwards v Jenkins [1896] 1 Ch 308
Hammerton v Honey (1876) 24 WR 603
Hampshire
County Council v Milburn [1991] 1 AC 325;
[1990] 2 WLR 1240; [1990] 2 All ER 257; (1990) 61 P&CR 135, HL
Jones v Bates [1938] 2 All ER 237
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
Pain v Patrick (1690) 3 Mod Rep 289, 87 ER 191
Secretary
of State for Education and Science v Tameside
Metropolitan Borough Council [1977] AC 1014; [1976] 3 WLR 641; [1976] 3 All
ER 665; (1976) 75 LGR 190, CA and HL
Silverhill
Park Estate, Re unreported
Turnworth
Down, Dorset, In re [1978] Ch 251; [1977] 3 WLR
370; [1977] 2 All ER 105; (1976) 33 P&CR 192
West
Anstey Common, North Devon, In re [1985] Ch 329;
[1985] 2 WLR 677; [1985] 1 All ER 618; (1984) 83 LGR 793; 49 P&CR 390, CA
This was an
application by David Donald Steed and Colin Malcolm Steed 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.
Desmond
O’Brien QC and Martin Porter (instructed by House Percival) appeared for the
applicants; 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 for Health and Social
Security.
Giving
judgment, CARNWATH J said: The People’s Park (as it is described on the
Ordnance Survey maps) is an area of about 15.8 acres of uncultivated land on
the edge of Sudbury in Suffolk. It adjoins Waldingfield Road. From the map,
there appears to be residential development on three sides. It was acquired in
1987, at a price of £850,000, by the Secretary of State for Health and Social
Security for the purposes of a hospital to be constructed by the regional
health authority. Some £500,000 has been spent in preliminary work.
In 1991 an
application was made by a Mr Ramsey to Suffolk County Council for registration
of the land as a village green under the Commons Registration Act 1965. That
was withdrawn, but replaced by an application on February 27 1992 by the
present applicants (in their own name and that of the ‘People’s Park Protest Group’).
Following an objection on behalf of the Secretary of State, the application was
rejected by the council’s planning committee on September 3 1992. The
applicants now seek judicial review of that decision.
The
deficiencies of the 1965 commons legislation have been often remarked on by the
courts. So far, those criticisms seem to have gone unheeded. The present case
brings them in to sharp focus, since the potential loss to the public —
whatever the outcome — is substantial. Major public investment has been frozen
— for at least four years if the department’s submissions are correct and
perhaps permanently if they are not.
In these
circumstances, it is useful to spend a moment recalling some of those
criticisms and the background to them. It may be that this case will help to
underline the continuing need to address the problems arising from this
legislative scheme, which was half-begun 30 years ago, but never completed.
The 1965
Act and village greens
(In this
summary, I have drawn on material beyond that referred to at the hearing,
including Parliamentary reports. I have also had access
Registered (1995). Since this survey is by way of background only and does
not directly impinge on the issues before me, I have not thought it necessary
to invite further submissions. For the same reason, the survey is not
necessarily comprehensive or definitive.)
The Royal
Commission on Common Land was established in 1955 under the chairmanship of Sir
Ivor Jennings QC. Its task, as defined by the Royal Warrant, was:
… to recommend what changes, if any are
desirable in the law relating to common land in order to promote the benefit of
those holding manorial and common rights, the enjoyment of the public, or,
where at present little or no use is made of such land, its use for some other
desirable purpose.
They reported
in 1958. They made recommendations for the registration of common land and of
common rights over such land and also for the management and improvement of
such land and for a general right of public access to it. They also recommended
that similar arrangements should be made for town and village greens. As they
said at para 369:
There are
probably very few villagers who will not know what they mean by their ‘green’;
equally their assumption that it is ‘their’ green is seldom likely to be
questioned. But if it is challenged, the burden of proof would in all
probability put them to considerable difficulty and expense.
For this
purpose, they proposed a three part definition of ‘town or village green’, as
follows at para 403:
Any place
which has been allotted for the exercise or recreation of the inhabitants of a
parish or defined locality under the terms of any local Act or inclosure award,
any place in which such inhabitants have a customary right to indulge in lawful
sports and pastimes, and 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
during a period of at least twenty years without protest or permission from the
owner of the fee simple or the lord of the manor.
The Commons
Registration Act 1965 was designed to put in place the first part of the
commission’s recommendations. As explained by the responsible minister (Mr
Willey) on the second reading of the Bill (Hansard HC April 28 1965 col
456):
First of all,
we should create the machinery for establishing the facts by registration; that
is the simple purpose of this Bill. Until the facts are recorded it would be
premature to frame the further legislation that will be required. What the Bill
will do is to provide the foundation for further commons legislation making
provision for statutory schemes for the management of common land.
The statutory
definition of ‘town or village green’ did not follow precisely that proposed by
the commission, although a three part format was retained. The third part was
broadened. Section 22 of the 1965 Act defined a town or village green as:
(i) land
which has been allotted by or under any Act for the exercise or recreation of
the inhabitants of any locality …
(ii) or on
which the inhabitants of any locality have a customary right to indulge in
lawful sports and pastimes …
(iii) or on
which the inhabitants of any locality have indulged in such sports and pastimes
as of right for not less than twenty years.
(I have
numbered the three parts for convenience. It does not appear in the Act
itself.)
The first two
parts of this definition pose no particular conceptual difficulty. Part (ii)
corresponds to the normal legal understanding of a town or village green, as
one whose status is derived from custom (Halsbury’s Laws vol 6
para 525):
… the essential characteristic of a town or
village green is that by immemorial custom the inhabitants of a town or village
green should have acquired the right of playing lawful games thereon and
enjoying it for the purposes of recreation.
The references
to ‘exercise or recreation’ and to ‘lawful sports and pastimes’ echo the
opening of the classic judgment 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.
He goes on to
explain the essence of ‘custom’, which is that it is
… local law because it is the law of a
particular place as distinguished from the general common law …
Part (i) of
the definition, which would include recreational allotments made under
inclosure awards (see Inclosure Act 1845 section 15; Halsbury ibid
para 526) or derived from other statutory sources, is also readily explicable
in accordance with established law.
Part (iii),
however, which is of direct relevance in the present case, presents more
difficulty, since it does not correspond to any status previously known to the
law. As far as I can ascertain, the only explanation given to Parliament was
that the 20-year period had been taken to ‘follow precedent as in the Rights of
Way Act, 1932 …’ (which dealt with the presumed dedication of highways); and
that the definition was thought sufficient ‘to deal … with the normal types of town and village
green’ (Hansard HC July 27 1965 col 420). Quite apart from such statutes
as that mentioned (now Highways Act 1980, section 31), the common law has long
accepted 20-years open use ‘as of right’ as establishing, in the absence of
evidence of a more modern origin, a presumption of commencement ‘beyond legal memory’:
see, eg Brocklebank v Thompson [1903] 2 Ch 344. What is novel, at
least in the context of customary rights, is treating such use as conclusive,
whether or not there is evidence of a modern origin. Unfortunately, the Act
does not indicate what legal consequences, if any, are to follow registration
of such a ’20-year green’.
The Act
received Royal Assent on August 5 1965. The long title was:
An Act for
the registration of common land and of town or village greens; to amend the law
as to prescriptive rights to rights of common; and for purposes connected
therewith.
This reflected
the stated intention, that is (apart from certain limited amendments relating
to prescription) to record the existing position, rather than make changes to
the substantive law.
Thereafter,
the machinery was duly set in place for applications for registration, for
objections, and for their determination by Commons Commissioners. The final
date for applications for registrations was fixed at July 30 1970; thereafter
(by section 1(2) — see below) land not registered as a common or village green
was deemed no longer to have that status. There was, however, no indication as
to when the second stage of the legislation, dealing with management and access
and other substantive matters, would appear.
Reported cases
relating to village greens have not been frequent. In 1978, in a case on
registration of common land (In re Turnworth Down, Dorset [1978] Ch 251
at pp260–261), Oliver J said that the Act was ‘not altogether easy to follow’,
and also commented obiter on the uncertain consequences of
non-registration of a village green in the light of section 1(2):
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 allotted to them for their
urban or rustic recreations is not deemed to be a town or village green.
In New
Windsor Corporation v Mellor [1975] Ch 380, the Court of Appeal was
concerned directly with a claim under the Act to register a village green. The
case for registration succeeded under the second part of the definition.
However, the Court of Appeal also commented obiter on the third part.
Lord Denning MR said at pp391H–392E:
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
… there is nothing 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 statute 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 said
at p395G:
The difficult
question of the effect of 20 years’ user as of right therefore does not arise,
but I agree with Lord Denning MR and Brightman J that it means 20 years’ user
before the passing of the Act. I also agree that as the Act stands, and without
further legislation, such user confers no rights on the public.
The definition
of ‘common land’ fared little better. In that context, there was further
criticism of the Act in the Court of Appeal in 1983: Corpus Christi College,
Oxford (President and Scholars) v Gloucestershire County Council
[1983] QB 360. It is unnecessary, for present purposes, to comment in any
detail on the problems posed by that definition. (I shall be referring to one
aspect of the case further below). However, Lord Denning recorded with regret
that the Act had ‘sadly failed in its purpose’ (p370A), and Oliver LJ commented
on ‘yet another most unsatisfactory state of affairs created by this Act which
… is crying out for amendment’ (p378H).
Between 1977
and 1989 there were some tentative steps in the direction of the second-stage
legislation: see Gadsden, The Law of Commons para 1.14. A report of an
inter-departmental committee ‘Common Land, Preparations for Comprehensive
Legislation’ was published by the Department of the Environment in 1977.
Progress on consultation seems to have been slow. In 1983, the Countryside
Commission established a Common Land Forum, representing the main interest
groups and it reported in 1986. In response, the government put out a
consultation paper. In 1989 a short Act was passed to deal with the particular
problem of registrations of land including a dwelling-house (Common Land
(Rectification of Registers) Act 1989). In the course of the debates, the then
Parliamentary Under-Secretary (Mrs Virginia Bottomley) reaffirmed the
government’s commitment to proceeding with the second-stage legislation when
parliamentary time was available: Hansard HC vol 150, col 536–537, April
7 1989. There, however, the process seems to have come to a halt.
In 1990, the
House of Lords had to consider the Act, again with reference to the definition
of common land: Hampshire County Council v Milburn [1991] 1 AC
325. Lord Templeman referred to the Royal Commission’s recommendations for a
second stage of legislation and said at p341B:
The Act of
1965 did not confer any general public right of access over common land and did
not set up the machinery for the establishment and implementation of schemes of
management and improvement. But there can be no doubt that further steps were
intended to implement the recommendations of the Royal Commission and no doubt
that such steps have become more and not less desirable.
As things
stand today — 20 years on from Lord Denning’s observations in the New
Windsor case and 30 years from the passing of the Act — nothing more has
been done to improve things, or to advance the promised second-stage
legislation. The result remains highly unsatisfactory, even having regard only
to village greens. Whatever the strict position in law, there is no doubt that
registration as a village green, or even an application for registration, does
have significant practical effects. As this case shows, any plans that the
owner might have had for developing the land, or selling it, are likely to be
frustrated. On the other hand, the public will assume — rightly or wrongly —
that something which is registered formally as a village green carries with it
the rights which a village green usually has. If they seek to exercise those
rights, they will be understandably surprised if a court treats them as
trespassers.
Unless the
intention was to recognise that a 20-year ‘village green’ was to be regarded as
a village green for all relevant purposes of the law, the legislative thinking
is hard to fathom. However, without making an interpretative leap of the kind
suggested by Lord Denning (perhaps, a doctrine of ‘lost modern statute’?), it
is hard to see how this result can be achieved within the law as it stands.
The 1965
Act — detailed provisions
I return to
the matters directly relevant to the present case. It is first necessary to
consider the other relevant provisions of the 1965 Act and the applicable
regulations.
Section 1(1)
provided for the registration of land ‘which is common land or a town or
village green’ and of ‘rights of common over such land’. By section 1(2), at
the end of a period to be determined by the minister —
(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.
As already
noted, the period so determined ended on July 30 1970. The county council, as
registration authority, had the responsibility of receiving applications for
registration (section 4) and for publicising them and receiving objections
(section 5). Unresolved objections were referred to a commons commissioner, who
had the duty to ‘inquire into’ the matter referred to him and to confirm or
refuse the registration (section 6). Once it became final, registration of land
as common land or as a town or village green (section 10) —
… shall be conclusive evidence of the matters
registered, as at the date of registration …
The commons
commissioners were senior lawyers specially appointed for the purpose of the
Act (section 17). Provision was made for regulations governing their procedure,
including the summoning of witnesses and the giving of evidence on oath
(section 19(1)(e)). Appeal from a decision of a commons commissioner, on
points of law only, lay by case stated to the High Court (section 18).
Section 13 is
concerned, not with the original process of registration, but with subsequent
amendments. It 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 …
The Act itself
does not prescribe the procedure, or even specify the agency responsible, for
amendment; this is left wholly to regulations.
These are the
Commons Registration (New Land) Regulations 1969. They came into effect on the
January 3 1970. Regulation 3 enables an application to the registration
authority to be made where —
… after January 2 1970, any land becomes common
land or a town or village green …
The
application can be made by anyone (regulation 3(4)). It has to be made on a
prescribed form (regulation 3(7)(a) — form 30, in the case of a town or village
green); accompanied by copies of any relevant documentation in the control of
the applicant (regulation 4); and supported by a statutory declaration in the
prescribed form, verifying the facts stated in the application, and (regulation
3(7)(d) (ii))
by such
further evidence, if any, as, at any time before finally disposing of the
application, the registration authority may reasonably require.
The authority
may reject the application if it appears ‘after preliminary consideration not
to be duly made’, but only after giving the applicant a reasonable opportunity
to put it in order if this is possible (regulation 5(7)).
If the
application is in order, the authority must publicise the application and allow
time for objections (regulation 5(4)). Consideration of objections is governed
by regulation 6. The matter is left entirely to the registration authority
(unaided by a commons commissioner). The only specific procedural requirements
are that any ‘statement in objection’ must be in writing and signed by or on
behalf of the person making it (regulation 6(2)); and that a copy must be sent
to the applicant, who must be given (regulation 6(3)) —
… a reasonable opportunity of dealing with the
matters contained in the statements of which copies are sent to him under this
paragraph and with any other matter in relation to the application which
appears to the authority to afford prima facie grounds for rejecting the
application.
It may be
noted that, by contrast with the regulations governing procedure before the
commons commissioners, there is no express provision for an oral hearing, nor
for compulsion of witnesses or evidence on oath.
Following
their decision the authority must send notice to the applicant and the
objectors (regulation 8(1)) —
… and such notice shall include, where the
registration authority has accepted the application, details of the registration,
and, where it has rejected the application, the reasons for the rejection.
There is no
right of appeal as such against the authority’s decision. However, by section
14, the High Court is given the power to order the register to be amended
where:
(b) the register has been amended in pursuance of
section 13 of this Act and it appears to the court that no amendment or a
different amendment ought to have been made and that the error cannot be
corrected in pursuance of regulations made under this Act …
And … the court deems it just to rectify the
register.
It is to be
noted that, under this section, by contrast with its powers on appeal from a
commons commissioner, the court is not confined to remedying errors of law, but
may consider the overall merits of the amendment. On the other hand, this
jurisdiction is only available where an amendment has actually been made by the
authority. Where the authority refuses to make an amendment, the Act gives the
disappointed applicant no further remedy. The only legal recourse is by way of
judicial review (as in this case).
Facts of
this case
Against that
statutory background I turn to the facts of the present case. Mr Allan Berry, a
former trustee of the Sudbury Common Lands Charity, has written a history of The
Freemen’s Lands of Sudbury. They are of ancient origin. He refers in
particular to a charter of 1260, by which the then lord of the manor, Richard
de Clare, conferred certain pasture lands to the north of the town on ‘my
burgesses and the whole commonalty of Sudbury’. Additions were made over the
years. A new impetus was given by the Sudbury Town Lands Act 1838, which
enabled landowners to redeem pasturing rights over their land (specifically,
rights of ‘shackage’ — that is, rights to graze after the taking of an arable
crop) by giving to the borough council land in exchange, to be held for the
freemen.
Various areas
were acquired in pursuance of this Act during the remainder of the 19th
century. The land with which I am concerned, which was originally known as Harp
Close Meadow, was acquired in two portions, one in 1875 and remainder in 1876.
At some point it became known as ‘People’s Park’. It is not clear from the
documents before me precisely when or why this happened. Mr S Blackwell, a
former borough surveyor, says (in a statement dated January 1991) that the
borough received permission from the Court of Chancery in 1872 to make the
purchase out of money derived from the sale of land for a railway. He says that
they immediately renamed it People’s Park, and —
It was to be
used for winter grazing by the freemen burgesses, and after cattle were
turned-on to depasture on the riverside meadows each 1st May, it was to be used
for public recreation, children’s games, games of cricket, drilling of
volunteers etc.
He does not
state the source of this information. An appendix to the applicants’ statement
to the council summarises certain ‘extracts from the original Council minutes’,
which, if accurate, appear consistent with Mr Blackwell’s account of the time
and circumstances of the purchase.
Later in the
19th century there was a series of disputes stemming from dissatisfaction over
the management of these lands. In June 1890 the council asked the Charity
Commissioners to hold an inquiry into the question. Following this, a scheme
for the regulation and administration of the lands was prepared and was
approved by the High Court (Chancery Division) on May 6 1897. This scheme was
entitled ‘Scheme for the Regulation and Administration of the Charity known as
the Sudbury Common Lands Charity’. It applied to the ‘Common Lands of the
Charity’ as described in the schedule. This listed them under seven headings,
giving a total of just over 145 acres. Harp Close Meadow was the first noted as
having an area of 16 acres. These lands were to be vested in the official
trustee of charity lands, in trust for the freemen for the time being of
Sudbury. Their management was to be the responsibility of trustees appointed
under the scheme. The scheme defined the ‘freemen’ and the pasturing rights to
which they (or their widows) were entitled (clauses 31–32). The only reference
to recreational rights was in clause 34:
Existing
rights of pasturage over or of recreation in or upon the common lands of the
Charity shall not be prejudicially affected by this Scheme, but the Trustees
may from time to time make the regulations for the exercise of such rights.
During the
present century, according to Mr Berry’s history (p23), the land continued to
be used for grazing by the freemen until the second world war; but then
in 1944,
because of the problems caused by freemen’s absence in the forces, the freemen
agreed to vest their rights in the Trustees, who thereafter arranged to sell
the grazing annually, though if a freeman wished to depasture his cows he
remained entitled to do so.
In a statement
submitted to the council on behalf of the Secretary of State, Mr Berry says:
any activities
on the land such as fairs galas, football matches etc. Have been carried out
with the consent of the trustees of the Sudbury Common Lands Charity.
His father was
both the trustee and a cow keeper; Mr Berry understood from him the land was
acquired solely as higher ground to provide grazing when the water meadows were
flooded. He also says that during the charity’s ownership, the land was fully
fenced and no formal access was provided. The Secretary of State has produced
three other statements to similar effect, though none of the witnesses claims
knowledge before the second world war.
Mr Blackwell,
for the applicants, has a rather different account (letter of March 25 1992).
He says:
The Park
continued to be used for the dual purpose (of grazing and recreation) for many
years until the freemen with cattle claiming winter grazing rights died off.
The need for food production in Great War etc. And the passing of many years
clearly led the trustees then to lose sight of the original purposes and rights
attached to this land. This led them to let off the field for hay and summer
grazing by tenant stockmen. However this clearly did not stop recreational use
by inhabitants.
Again, his
source is not stated. The applicants also rely on some 40 forms completed by
local residents (on a form apparently provided by the Open Spaces Society).
They claim to have used the land for various forms of recreation over a variety
of periods from the 1920s up and until 1991.
It is
unnecessary for me to comment further on these factual differences, since it is
accepted that, if they have to be resolved, then further consideration by the
council will be needed, almost certainly with the assistance of some form of
inquiry or public hearing. Before me, the council’s case proceeds on the basis
that the relevant committee —
… for the purposes of its decision accepted the
facts presented by the applicant
(I am quoting
from the skeleton argument of counsel for the authority.)
As will be
seen, the authority decided, on the basis of advice from their legal officers
and counsel, that even accepting the facts as stated by the applicants, the
case for registration had not been made out.
Turning to the
more recent history, an application was apparently made to register the land
under the Act, but this was withdrawn in 1971 in the face of opposition by the
trustees. Accordingly, by virtue of section 1(2)(a) of that Act, any
claim of the land at that stage to be a town or village green was lost as from
July 31 1970.
In 1987 a new
scheme for the administration of the charity and its property was approved by
the Charity Commissioners under the Charities Act 1960. The schedule included
Harp Close Meadow as part of the land to be administered. However, clause 23
authorised the trustees to sell this part for not less than £850,000. The land
was conveyed to the Secretary of State by a conveyance dated June 10 1987. It
was no doubt assumed to be free of any common or other rights which might
impede the proposed development.
As I have
said, the current application for registration was made on February 27 1992. It
was supported by a statutory declaration as required by the regulations and by
the proforma statements to which I have referred. A ‘Statement of Facts’ was
submitted by the Secretary of State by way of objection on May 6 1992; and was
responded to by the applicants by a statement dated June 28 1992 with
attachments (including the letters of Mr Blackwell). There were also supporting
letters from the Open Spaces Society, explaining their view of the law. The
council had already, in connection with Mr Ramsey’s application, received a
detailed opinion from Mr Nigel Thomas of counsel and this was updated by a
further opinion on March 18 1992.
Consideration
by the authority
The
application was considered by the county council’s planning committee (which
had the relevant delegated powers) on September 3 1992. Members had a report
(T462) from the county secretary and solicitor. This described the application
and supporting material:
The
application claimed that the land became a town or village green on 1st August
1990 on the grounds that it had been used as of right for a period of 20 years
by local inhabitants for what are claimed as lawful sports and pastimes. Thirty
seven witness statements form part of the application, a full copy of which has
been placed in the members’ room. The statements are from people living
predominantly in the area surrounding the application site. They claim to have
used, as of right, or seen others using, the land, for a variety of purposes
though principally walking with or without a dog, and for children’s games.
Further correspondence from the applicant is also in the members’ room.
The report set
out the relevant statutory definition, and defined the issues as follows:
(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?
In considering
these issues, the report drew extensively on counsel’s advice. As to (b) and
(c), doubts were expressed whether the use had been of such a character as to
amount to ‘lawful sports and pastimes’ and whether it had been a matter of
‘right’ rather than toleration. However, the determinative issues were seen to
be (a) and (d). As to the former:
Counsel
… says the overwhelming weight of the
evidence is to the effect that the inhabitants of the area who use the
application are located not from the whole town of Sudbury, but the immediate
area surrounding the application land. Most of the witnesses make no claim as
to the locality of the inhabitants using the application land. The surrounding
area does not in counsel’s view, amount in law to a ‘locality’. On this point
alone, we have been advised, the application fails.
As to (d) —
… the Act and Regulations require that the
Register of Town and Village Greens be amended where land has ‘become’ a
village green: but the word ‘become’ implies some change having taken place.
The objector’s case is that if the pattern or character of use is the same
before 1970 as after it (as appears to be the case here he says) then there has
been no change to justify saying that the land has ‘become’ a village green
since 1970. It may have met and/or now meet the statutory criteria so that
technically it is a village green, but this is not the same as saying that it
has ‘become’ one; in other words it is/may be, but has not become.
Counsel
considers that this argument provides a ground for rejecting the application.
The report
concluded:
9.1 Counsel
has advised that the application does not succeed on the first and fourth of
the statutory criteria. In addition, the evidence that it meets the second
criterion is scant while in respect of the third it is inconclusive either way.
9.2 It is
RECOMMENDED that the Committee decide the application in respect of People’s
Park, Sudbury on the grounds that it fails to establish that all the statutory
criteria for amendment of the Register of Town and Village Greens are met.
This
recommendation was accepted by the committee. The relevant minute records the
advice given by the county secretary and solicitor and continues:
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 and resolved that the application in
respect of People’s Park, Sudbury, 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.
Following
correspondence with the applicants’ solicitors, the county solicitor wrote on
April 5 1993 as follows:
Counsel has
advised that I should tell you formally that your clients’ application for the
registration of People’s Park as a town or village green was rejected by the
council’s planning committee at its meeting on 3rd September 1992 for the
reasons given in para 9.1 of the report T462 a copy of which is in your
clients’ possession.
Grounds
for judicial review
In these
proceedings, the applicant has challenged this decision on a number of grounds,
procedural and substantive. The procedural points have largely been overtaken
by events. I can deal with them relatively shortly.
(i) Disclosure
of counsel’s advice. There was initially a dispute as to whether this
advice was protected by legal professional privilege. At the hearing, the
council agreed to disclose it, without prejudice to the validity of their claim
to privilege in other similar cases. Not surprisingly, the advice followed the
lines summarised in the officer’s report. As I understand it, the advice itself
was not made available to members.
(ii) Wrongful
delegation. The applicants complained that the committee had not merely
relied on counsel for legal advice, but had in effect delegated to him the
substantive determination of the application on the merits and had
‘rubber-stamped’ his conclusions. They had accordingly failed to discharge
their own duty to consider the evidence and reach a conclusion upon it. It is
unnecessary for me to consider how far this complaint is justified in fact or
law. As I have said, the council’s case before me has proceeded on the basis
that detailed consideration of the evidence was unnecessary, because of
insuperable legal obstacles identified by counsel. Thus, the issue became a
pure one of law — that is, whether the facts as presented by the applicants
(taken at their most favourable) were capable in law of supporting the
amendment claimed.
(iii) Onus
of proof. There was some discussion of the extent to which the council were
entitled to place the onus on the applicants, rather than themselves
investigating the matter. In relation to common commissioners’ hearings, it is
settled that the onus of proof rests on the person who made the registration:
see In re West Anstey Common, North Devon [1985] Ch 329, at pp 341–342 per
Slade LJ, not
case. The same approach, in my view, is implicit in the regulations under
section 13. The duty to provide supporting information is laid on the
applicant. Although regulation 3(7) imposes some duty on the authority to
consider whether further evidence should be sought, the responsibility for
obtaining it clearly rests with the applicants.
(iv) Oral
hearing. The applicants requested the authority to hold a public hearing
into the matter, and this was echoed by the local member before the committee.
Again, this issue is not a live one before me. As I have said, it is accepted
that, if the matter has to be reconsidered by the council on its merits, then
some form of oral hearing will in practice be necessary. Although there is no
provision for such a procedure in the regulations, I understand that
authorities do sometimes organise non-statutory hearings, where the written
submissions disclose significant conflicts of evidence. This is appropriate.
The authority have an implied duty to ‘take reasonable steps to acquaint
(themself) with the relevant information …’.: see Secretary of State for
Education and Science v Tameside Metropolitan Borough Council [1977]
AC 1014, at p1065. Some oral procedure seems essential if a fair view is to be
reached where conflicting recollections need to be reconciled, even if the
absence of statutory powers makes it a less than ideal procedure. (The absence
of specific provision in the Act may be some indication of the limited role
which new registrations under section 13 and particularly claims based on
evidence of usage, were expected to have.)
(v) Reasons.
The applicants complained that the authority failed to comply with their duty,
under the regulations, to notify their reasons for rejecting the application.
However, by the time of the hearing before me, the documents before the court,
as amplified by the skeleton argument, left no serious doubt about the process
of reasoning on which the council relied to support their decision. The
question for me is whether that process of reasoning is sound in law. If it is,
then it should stand. The mere fact that the reasoning was not fully stated at
an earlier stage does not mean that the decision itself is bad in law: see Crake
v Supplementary Benefits Commission [1982] 1 All ER 498.
Substantive
issues
I turn
therefore to the substantive legal issues on which the council’s decision
turned. It is common ground that the only part of the statutory definition of
‘town or village green’ which is relevant is the third:
… and …
on which the inhabitants of any locality have indulged in (lawful sports
and pastimes) as of right for not less than 20 years.
It was no
doubt convenient for the purposes of presentation to divide the statutory
criterion into the four elements identified by the officer’s report. However,
it is important to keep in mind that it is a single test and that the
individual elements take colour from each other and indeed from the Act as a
whole. A number of points should be made.
First, the
purpose of the Act, in the present context, was to record ‘town or village greens’.
The concept is a familiar one — indeed so familiar that specific definition has
not been thought necessary in other legislation dealing with the subject: see,
for example, Inclosure Act 1857 section 12; Acquisition of Land Act 1981
section 19(4). As the Jennings Commission recognised, most villagers would know
what they meant by ‘their green’, even without precise knowledge of its origins
or legal status.
To state the
obvious, a town or village green, as generally understood, is an adjunct of a
town or village or something similar. As such it may be contrasted with open
spaces of various kinds, for example recreation grounds maintained by local
authorities for the public generally (eg under the Open Spaces Act 1906);
school playing fields; or areas of a more private nature, such as London garden
squares, or land set aside under a building scheme for the occupants of a
particular private development. None of these categories would naturally be
regarded as ‘town or village greens’. The statutory word ‘locality’ should be
read with this in mind. 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.
In argument,
there was some suggestion that a smaller unit could be taken, perhaps the
streets adjoining the land. In support of this, I was referred to the
conclusions of Gerald Ryan QC in a non-statutory report prepared in 1979 for
Sussex County Council. Mr Ryan cited Pain v Patrick (1690) 3 Mod
Rep 289, 87 ER 191, as showing that a custom might be claimed for the benefit
of the inhabitants of only some of the houses in a particular settlement. In
the particular case, he advised the council that the houses in the immediately
surrounding streets could qualify as a ‘locality’ under the Act. With respect
to his acknowledged expertise in this field, I find this difficult to accept. Pain
v Patrick was concerned with rights to a ferry, not to a village green.
In the present statutory context, I do not think that a piece of land used only
by the inhabitants of two or three streets would naturally be regarded as a
‘town or village green’. The word ‘locality’ in the definition of village green
should be interpreted with regard to its context.
Such an
approach is also consistent with that of Kekewich J in Edwards v Jenkins
[1896] 1 Ch 308, where the issue was whether a green could exist for the
benefit of three parishes. He held that it could not. He referred to the
authorities which showed that the use must be that of the inhabitants of a
‘district’, and continued at p313:
I take it
that the judges have used the word ‘district’ as meaning some division of the
county defined by and known to the law, as a
parish is; and that I should be extending their meaning if I were to say
that a custom of this kind could be claimed as regards several parishes.
(Emphasis
supplied.)
Although the
actual decision has been doubted (see New Windsor case supra at
pp387 and 396), the words underlined fairly reflect the earlier cases there
cited and indeed the concept of a ‘local law’ as explained in Hammerton
v Honey (see above). The word ‘locality’ in the Act seems intended to
bear the same connotation as the word ‘district’ as used in such cases.
On the other
hand, I would not go as far as the chief commons commissioner (Mr Squibb), who
in one case held, by analogy with customary rights, that a ‘locality’ for the
purpose of the definition must be one which has been in existence since the
beginning of legal memory (Re Silverhill Park Estate, unreported Ref
83/D/1). Such a restrictive interpretation is not justified by the wording and
would largely negate the third part of the definition.
Second,
interpretation of a ‘registration’ Act should start from the assumption that
its main purpose is to record and settle definitively rights and interests as
they exist, rather than to make substantial additions or alterations to them.
In this context, the third part of the definition is unlikely to have been
intended to change materially the ordinary perception of a village green. It is
more readily understood as an acknowledgement of the practical difficulties
inherent in the common law view of a village green and in proof of ‘immemorial
custom’. As I have said, there are precedents for the adoption of a period of
20 years as an indication of the existence of customary rights, even if its
implications in this Act are not fully worked out.
Third, and
following from the above, the critical words in this part of the definition, to
my mind, are the words ‘as of right’, which qualify the other components. Use
by itself is not enough; it must be use accompanied by the assertion of
‘right’. Nor is it enough that those who use the land are in fact inhabitants
of a particular ‘locality’ (however that term is defined); it must be by
reference to that fact that their right to enjoyment of the land is claimed and
defined. Similarly, abstract discussion of the term ‘lawful sports and
pastimes’ may not be helpful — for example, whether it connotes something more
than
(supra) shows, the statutory words are not terms of art. In modern
life, informal recreation of this kind may be the main function of a village
green. What matters in applying this definition is whether the recreational use
provides evidence from which, in case of dispute, there can be inferred a right
enjoyed by the inhabitants of the locality. The more substantial and formal the
use, the stronger will be that inference.
Fourth, the
term ‘as of right’ itself must be related to the nature of the right which is
in issue. There is no lack of authorities dealing with this expression in
relation, for example, to prescriptive acquisition of public or private rights
of way: see for example Jones v Bates [1938] 2 All ER 237; Mills
v Silver [1991] 2 WLR 324. However, the factual differences must be
borne in mind. Regular and open use of a particular route by the public, or of
a particular access by the occupier of a tenement, can readily be taken as an
assertion of right; the right is defined by the use, and in each case it is a
right recognised by the law. Recreational use of a particular piece of land by
members of the public is not so readily interpreted, since a prescriptive right
to roam as such is unknown to the law: see Attorney-General v Antrobus
[1905] 2 Ch 188). Thus, the Act requires something more than mere usage to
define the right; the usage must be linked to a right claimed by the
inhabitants of a particular locality.
For this
purpose, the most useful guidance is to be found in Beckett (Alfred F) Ltd
v Lyons [1967] Ch 449, which concerned a claim by certain inhabitants of
the County of Durham to a customary right to collect sea-coal from a stretch of
the foreshore. The claim failed, the evidence being insufficient to show the
exercise of a ‘right’, as opposed to a practice tolerated by the Crown as owner
of the foreshore. In particular, there was nothing to link the alleged right to
the area for which the custom was claimed (the County of Durham). Harman LJ
referred to Jones v Bates (supra) at p464D as authority
for the proposition:
… when the law talks of something being done as
of right it means that the person doing it believes himself to be exercising a
public right.
Later, he
related this to the requirement to connect the alleged right to the locality
claimed at p472C:
I agree that
it would not be necessary to prove exercise of the privilege from every part of
the county; but it would at least be necessary to show that the coal-gatherers
supposed themselves to be gathering coal in right of their inhabitancy of the
county, and of this I see no sign.
Similarly,
Winn LJ said at p485F:
The evidence
does not seem to me to establish that those who were used to come upon the
foreshore at any time within living memory to collect coal there and take it
away did so in the belief that all the inhabitants of the County of Durham were
entitled so to do.
(The reasoning
in these passages is not affected by the comments on other parts of the
judgments in Mills v Silver [1991] 2 WLR 324, at p333.)
So, under the
present Act, in my view, it is not enough to show enjoyment by people who
happen to come from a particular geographical area. In practice it will almost
always be the case that those using a piece of open land for recreation come
mostly from the neighbourhood. It is necessary to show that their enjoyment was
‘as of right’ by reference to that area, in the sense explained in Beckett.
Finally, in
considering the question of amendment under section 13(b) of the Act,
the starting point must be section 1(2). No land capable of registration as a
village green could be claimed as such after July 1970 unless it was so
registered. Thus, whatever rights may have been thought to exist by virtue of
actions or events before 1970, they ceased to have effect. Thereafter the land
was deemed not to be a ‘town or village green’, within any of the three parts
of the definition. (I do not believe that Oliver J was intending anything
different in his somewhat cryptic comments in Re Turnworth Down (supra).)
For the purpose of section 13(b), therefore, one starts with a clean
sheet. This seems to me to be essential to the main purpose of the Act, which was
to provide certainty. As said in In re Box Hill Common [1980] Ch 109 per
Stamp LJ at pp116–117:
Once the
registers are complete the Act should, by the effect of subsection (2) of
section 1, providing that no land capable of being registered under the Act
shall be deemed to be common land and/or a town or village green unless it is
so registered … bring to an end the
unhappy history of disputes and litigation regarding such matters involving, as
it did, expensive and difficult inquiries into the past.
(This
statement is not affected by the reversal of the Box Hill decision in Hampshire
County Council v Milburn (supra).)
Section 13
acknowledges that land may after 1970 ‘become’ a common or village green.
However, this can only be by virtue of something which happens after 1970. The
most obvious example is a ‘common land’ exchange under, for example, the
Acquisition of Land Act 1981. It is not clear what other instances, if any, the
draftsman had in mind. There can be no ready analogy with ‘immemorial’ customary
rights, where one is dealing with asserted rights which by definition cannot go
back beyond 1970. It is unnecessary, however, to explore that question in the
present context. What is in my view clear, is that the Act requires not merely
20 years enjoyment since 1970, but an assertion of right by reference to
something which has happened since 1970.
At this point,
I should return briefly to the decision of the Court of Appeal in Corpus
Christi College, Oxford (President and Scholars) v Gloucestershire County
Council [1983] QB360, on which reliance was placed by the council and by
the Secretary of State. In that case, certain land had been registered as
common land, but no rights of common had registered over it. ‘Common land’ is
defined in the Act as
… and subject to rights of common … (or) waste land of a manor not subject to
rights of common …
It was agreed
that the land had been registered under the first part of the definition and
that it had not been waste land of a manor. Accordingly, it was argued, once
the rights lapsed through non-registration, the land ceased to be common land,
and the register should be amended accordingly under section 13. This argument
was rejected by the Court of Appeal. The reasoning differs in detail in the
three judgments, but the essence seems to have been that once registration as a
common land had become ‘conclusive’ (under section 10), it was not possible to
look behind the registration to distinguish between the two parts of the
definition: see per Lord Denning MR at p369B–C, Kerr LJ at p381B–F.
I did not find
this case of great assistance in the present context. The judgments do, it is
true, emphasise the relevance under section 13 of a ‘subsequent event’ to
justify amendment: see for example at p380C. However, that is apparent from the
wording of the section itself. The difficulty in the Corpus Christi case
arose from the two-limb definition of ‘common land’ and the relationship of
that with the registration of common rights. Neither complication arises in the
present context.
Conclusions
In the light
of the above discussion, I turn to my conclusions in the present case. They can
be shortly stated.
As I have
said, the council refused the application for two reasons, in summary: first,
because the usage was not referable to a ‘locality’; and, second, because the
usage relied on was not the result of any change of circumstances since 1970.
In substance, I agree with them on both points, though with some change of
emphasis.
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 1920s or before.
to give rise to a right which did not previously exist.
Second, 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.
One person who
did address this issue directly was the former surveyor. He identified the
right as one enjoyed by the inhabitants of Sudbury, derived from the acts of
the borough council in the last century. However, 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.
For these
reasons, in my view, the council were right to conclude that, taking the
applicants’ evidence at its highest, the claim for amendment was not made out.
It provided no support for a right enjoyed by reference to any locality,
certainly not one which had arisen since 1970. In substance what this
application sought to do was to reopen issues which could and should have been
dealt with as part of the original registration process. That is not the
purpose of section 13. The application was rightly dismissed.
The case for
judicial review therefore fails.
Application
dismissed.
For further cases on this subject see p 113
