Battle green

Since the landmark decision of the House of Lords in R v Oxfordshire CC, ex parte Sunningwell PC [1999] 3 All ER 385 five years ago, the submission of an application to register land as a town or village green has become a surprisingly successful means of preventing development. Local people who have sought unsuccessfully to prevent the allocation of an area of open space for development at the local planning inquiry, and the subsequent granting of planning permission for that development, then apply to have the land registered as a green, under the Commons Registration Act 1965, on the basis of it having been used by local inhabitants for recreation for the past 20 years or more.

Until recently, this appeared to be an extremely effective ploy to defeat the prospect of building on open land, since it was generally assumed (albeit not without some doubt in certain quarters) that the restrictive 19th century legislation that effectively prevented the enclosure of village greens applied equally to 'new' greens registered under the 1965 Act. It thus prevented the carrying out of not only the particular development immediately contemplated, but any development. And landowners and prospective developers were (or should have been) very concerned, as a successful application for registration would effectively leave the land valueless, with no right of compensation.

In the light of the decision in Sunningwell, the Act was amended by the Countryside and Rights of Way Act 2000, with effect from January 2001. In particular, the period of qualifying use that had to be proved in order to justify land being registered was changed. Under the Act as originally passed, the definition of 'town or village green' (in s 22) included 'land on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than 20 years'. Following the 2000 amendment, the definition of a class [c] green became:

'Land '¦ on which for not less than 20 years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either '“

(a) continue to do so; or

(b) have ceased to do so for not more than such period as may be prescribed; or determined in accordance with prescribed provisions.'

No period has ever been prescribed under para (b), nor have any provisions been prescribed as to the determination of such a period.

Factual background

Against that legal background, Miss Robinson had sought the registration as a town or village green of 3.6 hectares of undeveloped land in North Oxford known as the Trap Grounds, lying between the railway and the canal. The City Council, which had owned the Trap Grounds since 1975, wished to use it for housing. Miss Robinson, a local resident, sought to prevent this, and on 21 June 2002 made an application to the County Council as registration authority under the 1965 Act for the land to be registered as a town or village green. The City Council, unsurprisingly, objected.

The County Council accordingly appointed a member of the Bar with relevant experience to hold a non-statutory inquiry and write a report. He found that the majority of the application land had been used for lawful sports and pastimes for more than 20 years, and recommended that they be registered as a town or village green, but that around a third of the site had not been so used, and should not be registered.

The County Council then sought a second opinion from another specialist on some of the points of law that had arisen. In view of a difference of views between the two experts, it decided to apply to the court for a declaration on the disputed points and, while it was about it, on various other matters '“ both as to whether the land should be registered and what would be the consequences of registration.

Litigation

There were in the end some ten points before the court, which could be grouped under four headings:

• What is the 20-year period referred to in s 22 of the Act (either before or after amendment by the 2000 Act)?
• What is the correct procedure for registration?
• What is the right approach as to the evidence regarding use of and access to the land?
• What is the effect of registration (particularly in relation to the 19th century legislation)?

The whole exercise was thus categorised by Baroness Hale as 'an examination paper' '“ which she (and some of the other members of the Judicial Committee) felt might be a misuse of the court's resources. However, the answers to that exam are of great importance to practitioners in this area of law, as they resolve a number of points of uncertainty.

The application was heard at first instance by Lightman J in the Chancery Division ([2004] EWHC 12), and then by the Court of Appeal ([2005] EWCA 175). The most significant feature of that court's decision was that, for land to be registrable, the qualifying use must 'continue' to the date of actual registration. Carnwath LJ, who delivered the sole judgment, fully realised the impact of that conclusion. He noted that a consequence of his interpretation was that the owner of the land might be able to take action to bring the qualifying use to an end, and that this was likely to limit substantially the opportunities for registration of new class [c] greens.

In other words, if an application for registration were to be submitted in January, the owner could erect a suitably worded sign in March, bringing the qualifying use to an end, so that '“ if Carnwath was right '“ by the time the application was determined in July the land would no longer be registrable (whether or not it would have been originally). And that of course would mean that that there would be little if any point in submitting an application in the first place, if it could be so easily defeated.

All three parties (applicant, owner and registration authority) then appealed to the House of Lords against one or more points of the Court of Appeal's decision. The hearing took place over five days from 27 March to 3 April 2006, and the opinions were delivered on 24 May.

What is a village green?

Before their Lordships turned to the more technical questions they had been asked, they addressed a preliminary, but fundamental, point that clearly troubled some of them '“ namely, whether, underlying the statutory definition of 'town or village green' in the 1965 Act, there was to be implied some additional requirement as to the type of land that was even eligible to be considered for registration. As Lord Scott put it, the issue was whether, for land to be properly categorised as a green, it should be

'an area of land, consisting mainly of grass, either in or in reasonable proximity to a town or village and suitable for use by the local inhabitants for normal recreational activities'.

However, Lord Hoffmann (supported by all the other members of the House) wisely resisted that, not least because such a requirement would inevitably be imprecise, and very difficult to operate in practice.

As for the more detailed points, Baroness Hale was attracted by the suggestion that land could have become a green under the old definition (prior to the amendment introduced by the 2000 Act) without having been registered, so that it would now be registrable automatically. That interpretation would have caused problems in practice, but did seem to accord with the wording of the 1965 Act as originally passed. However, the remainder of the House disagreed. Accordingly, all applications for registration of land as a green are now to be decided in relation to the new definition '“ that is, it must be shown that local people have indulged in lawful sports and pastimes on the land for 20 years, and continue to do so.

The most crucial question was therefore the date to which the 20-year period must continue. Lord Hoffmann rejected the conclusion of Carnwath LJ in the Court of Appeal as being irrational, even though it had been based on a clear and straightforward interpretation of the words of the statute; he robustly asserted that such a construction would make a nonsense of the Act, and that the correct answer was the date of the application. The lack of analysis on this point is striking, but '“ whether or not the conclusion is correct '“ all the other members of the House agreed with him on this, save that Lord Scott (only) considered that a slight relaxation might be appropriate in a case where the landowner bars the use of the land for recreation just before the submission of an application for registration.

The Commons Bill currently before Parliament will put the matter beyond dispute for the future, as it provides that the qualifying use of the land must subsist until the date of the application, or until a specific period prior to that date. However, until that comes into force, the clear upshot of the decision of the House of Lords is that the key consideration is the position up to the date of the application '“ once the application has been made, there is nothing more that a landowner or prospective developer can do to affect the outcome.

Registration procedure

Under this heading, the House was invited to decide whether it was open to a registration authority to permit an application for registration to be amended so as to refer to some lesser area; and whether it was open to the authority (without any such amendment having been made) to register as a green part only of the land included in the application, and (in either case), if so, according to what criteria. These questions are important in practice.

Lord Hoffmann, sensibly, took a robust common sense view, arguing that the crucial point was fairness to the parties. Following the submission of an application, it would be pointless for a registration authority insisting on the submission of a second application if either it or the applicant realised that the evidence only supported the registration of a smaller area '“ although an amendment would only be appropriate if no prejudice would be caused to the applicant or any of the objectors. Nor is there any rule that the amended application must be for substantially the same land as the original application. He also made it clear that the authority has no investigative duty that requires it to find evidence or reformulate the applicant's case; it is entitled to deal with the application and the evidence as presented by the parties.

The House also upheld the decision of the Court of Appeal that a registration authority is entitled, without any amendment of the application, to register only that part of the subject premises which an applicant can prove to have been used for the necessary period. Again, there is no rule that the lesser area must be substantially the same or bear any particular relationship to the area originally claimed.

Finally, the parties had sought guidance, as opposed to a declaration, on how the county council had to approach the application in the light of the evidence in relation to user of the land, and the relevance of the existence or potential for the existence of public rights of way. However, their Lordships declined to assist.

Effect of registration

Finally, and importantly, the House provided guidance as to the effect of land being registered as a town or village green.

Lord Hoffmann noted that the 1965 Act was wholly silent as to the practical effect of registration, but he held that the rights arising on registration were for local inhabitants to indulge in all lawful sports and pastimes, not just in the particular sport or pastime that might have given rise to the registration. So, for example, if there could be shown to have been an annual Guy Fawkes bonfire, and cricket in the summer, that might lead to the land being registered as a green; and, once registered, the local people could generally walk dogs and pick blackberries.

Significantly, he emphasised that this apparently unrestricted right of local people to indulge in sports and pastimes does not mean that the owner of the land is altogether excluded from it. 'He still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants. There has to be give-and-take on both sides.'

In particular, he considered that 'low-level agricultural activities' '“ such as taking a hay crop (as in R (Laing Homes) v Buckinghamshire CC [2003] EWHC 1578) '“ were not necessarily inconsistent with lawful sports and pastimes.

As for the nineteenth century statutes '“ notably the Inclosure Act 1857 and the Commons Act 1876 '“ prohibiting enclosure and building on village greens, Lord Hoffmann agreed with both Lightman J and Carnwath LJ that they do apply to modern greens, registered under the 1965 Act, just as to ones that existed in and before the 19th century. He reasoned that Parliament had provided that registration under the Act was to be conclusive as to the status of the land in question as a town or village green; and it must have intended that it would be a green for the purposes of those old statutes too.

The other members of the Committee agreed with him on these points, with the exception of Lord Scott. Their resulting conclusion would seem to apply equally to any greens that may in future be registered under the Commons Bill, just as much as to those registered under the 1965 Act.

Lord Hoffmann also held that the registration of land as a town or village green was not a breach of human rights, by depriving the owner of his possessions '“ notwithstanding the recent ruling in Strasbourg in J A Pye (Oxford) Ltd v UK [2005] 3 EGLR 1 (that extinction of title by adverse possession did amount to a breach). The decision on this point by Lord Hoffmann was arguably obiter, and the others did not explicitly refer to the point.

Consequences of the decision

The key points arising from this important decision are thus as follows.

(1) There is no restriction in principle to the type of land that may be registered as a town or village green; the only requirement is as to the manner and length of its use.

(2) In all cases, the relevant period of use to be considered is the 20 years up to the date of the application.

(3) The applicant may amend his or her application, and the authority may anyway decide to register a smaller area than that which formed the subject of the application.

(4) Once land has been registered as a green, the local inhabitants have a right to use it for all forms of lawful sports and pastimes, and the owner must only use it in such a way as not to prevent the exercise of that right (and must in particular not build on it).

(5) The registration of land as a green is probably not a breach of human rights.

Conclusion

None of this answers the criticism that the system of registering village greens is not an appropriate mechanism for resolving disputes between those wishing to use open land for recreation and those wishing to provide on it housing or other development, since it operates on the basis of arcane rules dating back to the 19th century, which are wholly capricious in their application. The right mechanism is surely the planning system, which can take into account not (or not just) legal rights, but also policy considerations. Indeed, it might be thought, it is precisely making choices of this kind that justifies the existence of a planning system at all.

However, for the moment at least, the decision of the House of Lords in Oxfordshire means that the system of registering village greens is now somewhat more sophisticated than it was; and the enactment of the new Commons Bill later this year will result in that system clearly having the blessing of Parliament, and thus much-needed legitimacy. But landowners who have long-term plans to use their land for development must take action without further delay if there is any prospect of it becoming a village green. And those battling to prevent such development may once again seek to use registration as a green as a powerful weapon in their armoury.

Charles Mynors is a barrister at 2 Harcourt Buildings (soon to move to Francis Taylor Buildings), where a number of members practise as advisers, advocates and inspectors in village green cases