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Commons
Right to roam
Town and village greens

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Town and village greens

The information on this page is kindly provided by William Batstone of Guildhall Chambers, Bristol.

There are two principle House of Lords cases dealing with town and village greens: R v Sunderland City Council ex parte Beresford (2003) and Oxfordshire County Council v Oxford City Council (2006). This page deals with those cases.

There are also details of details of the changes made by the Commons Act 2006; a case on "user as of right"; and a case on applications under the 1965 Act.

Beresford

R v Sunderland City Council ex parte Beresford
[2003] UKHL 60

In the first House of Lords case the House held that the provision of benches and the mowing of a 10 acre grass arena used for recreational activities from team games to dog-walking were not acts from which an implied permission to use the land could be inferred to deprive the use of the land of being as of right for the purposes of section 22 of the 1965 Act. In most cases (Lord Scott para 51) a conclusion that implied permission is inconsistent with user as of right may be correct but it is not a rule of law. In the particular case the acts in question were indicative not of permission but of a public body mindful of its responsibilities to discharge its functions for the benefit of the public by providing recreational facilities for inhabitants of the locality. As Lord Walker acknowledged in para 92, the decision may be thought to stretch the concept of a town or village green beyond the limits Parliament intended, and the fear is that landowners will react by seeking to deny access by erecting fencing or notices.

Oxfordshire County Council

Oxfordshire County Council v Oxford City Council [2006] UKHL 25

The main points decided by the House of Lords in the second case are set out below. The principle opinion is that of Lord Hoffmann:

What is a town or village green?

Even though not expressly asked to do so and not addressed on the issue by counsel (see para 71), the House gave its opinion as to the meaning of a "town or village green" in s 22 of the Commons Registration Act 1965. That section states that "town or village green" means:

"land (a) which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or (b) on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or (c) on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than 20 years". (Letters breaking up the section added as is customary).But what exactly do these phrases mean? Is a "village green" what most people would normally conjure up in their minds when they hear or read those words? Something akin to a patch of grass with chaps playing cricket and a pub to the side. Or, does the phrase have a much wider meaning? Could it for example include "some rocks at Llanbadrig, Ynys Mon, which had been used by the inhabitants of the locality to moor boats while engaged in the pastime of boating" as had been decided in one case. The HL has now held that the phrase has a wide meaning. It is not confined to our general understanding of the term. The phrase is applicable to any land that by long custom has become subject to the right for local inhabitants to use for some form of recreation of whatever type. (See Lord Hoffmann at paras 37 to 39; Lord Roger at para 115; Lord Walker at paras 124 - 128; and Lord Scott dissenting at paras 71 to 83. Baroness Hale declined to deal with the point). Lord Rodger at para 115:

"..I should confess that, like Lord Walker, my feeling at the end of the hearing of the appeal was that it would be desirable, if reasonably possible, to interpret the definition of 'town or village green' in section 22 .. in a manner that would confine its application in the case of village greens to areas which were, more recognisably, the kinds of area which readily come to mind when the expression is used - in other words to 'traditional' village greens. But the terms of the definition in section 22 present a formidable obstacle to such an approach, an obstacle which it would be legitimate to surmount only if the House could be satisfied that it was necessary to do so in order to give effect to the intention of Parliament. Despite Lord Scott's arguments, having studied the speech of Lord Hoffmann, I cannot actually be sure that Parliament intended the provision to have this narrower scope"Continuous user - to when?

Section 22 of the 1965 Act as amended by s98 of the Countryside and Rights of Way Act 2000 provides that:

"Land falls within this subsection if it is 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 .. (a) continue to do so.."Until what point is it necessary that the user should continue?

The House has now held that it is the date of the application. The decision of the CA that it was the date of registration was "irrational". Lord Hoffmann at para 44:

"Since 2001, then, the land must satisfy the definition as amended by the 2000 Act. The inhabitants must "continue" to use the land for sports and pastimes. Continue until when? Carnwath LJ said that user had to continue until the date of registration. But that would mean that any well-advised landowner, on receipt of an application to register, would erect barbed wire or take other steps to prevent the user from continuing, or at any rate continuing as of right. ... I would therefore reject the Court of Appeal's construction as irrational. In my opinion the correct date is that of the application. That appears to be assumed by clause 15(3)(b) of the Commons Bill now before Parliament."Lord Scott at para 109 substantially agreed with that view ie he agreed

"that, prima facie, the user must continue up to the date when the registration application is made."However, he would have added a qualification:

"If, however, 20 years appropriate user having passed and while the user is still continuing the landowner bars the user, a more or less immediate application to register the land in response to the landowner's action would, in my opinion, suffice. But if the barring of the user were not responded to reasonably promptly, the continuance criterion introduced by the 2000 Act would not be able to be satisfied. My reason for this slight qualification is that an applicant for registration is quite likely, before making the application, to attempt to stir up neighbourhood support or to obtain suitable evidence from local inhabitants. The landowner is quite likely to hear of this and a race to see who could act first, the landowner in barring the use of the land or the applicant in making the application, would not be satisfactory. The requirement of continuance needs, I think, to be approached in a commonsense fashion. Has the previous public user fallen into disuse is, in my opinion, the right question to be asked."Although Lord Scott would have made this "slight qualification" it is the view of Lord Hoffmann that is in the majority, ie that the appropriate day is the date of the application.

Does registration create rights?

Yes. Lord Hoffmann at para 49, 50 and 51:

"So one has to look at the provisions about greens in the 1965 Act like those of any other legislation, assuming that Parliament legislated for some practical purpose and was not sending Commons Commissioners round the country on a useless exercise. If the Act conferred no rights, then the registration would have been useless, except perhaps to geographers, because anyone asserting rights of recreation would still have to prove them in court. There would have been no point in the conclusive presumption in section 10."But what sort of rights are conferred by the registration. Is it simply to carry out the recreational activities that provided the evidence of the long user that led to the registration? Or does registration confer a right to use the green for all recreational purposes? The answer is the latter (with Lord Scott dissenting at para 105). Lord Hoffman again at paras 49 and 50:

"Another possibility is that registration conferred such rights as had been proved to support the registration but no more. So, for example, if land had been registered on the strength of a custom to have a bonfire on Guy Fawkes Day, registration would confer the right to have a bonfire but no other rights. But this too would make the registration virtually useless. Although the Act provides for the registration of rights of common, it makes no provision for the registration of rights of recreation. One cannot tell from the register whether the village green was registered on the basis of an annual bonfire, a weekly cricket match or daily football and rounders. So the establishment of an actual right to use a village green would require the inhabitants to go behind the registration and prove whatever had once satisfied the Commons Commissioner that the land should be registered. In my view, the rational construction of section 10 is that land registered as a town or village green can be used generally for sports and pastimes. It seems to me that Parliament must have thought that if the land had to be kept available for one form of recreation, it would not matter a great deal to the owner whether it was used for others as well. .. This does not mean that the owner is altogether excluded from the land. He still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants".These cases have been so strongly fought over because the owner normally wants to build houses on the site. He is not now going to be able to do so if that will interfere with the rights of the inhabitants to use the land for (all) recreational purposes. None of this infringes the land owner's human rights.

"The owner retains his title to the land and his right to use it in any way which does not prevent its use by the inhabitants for recreation and, secondly, the system of registration in the 1965 Act was introduced to preserve open spaces in the public interest." (Lord Hoffmann at para 59).Amending applications

The registration authority may allow amendments to the application form to register an area of land different to that originally claimed. It is not necessary to insist upon a fresh application (with a new application date) if no prejudice would be caused by an amendment or if any prejudice could be prevented by an adjournment to allow the objectors to deal with points for which they had not prepared. The registration authority is entitled without any amendment of the application to register only that part of the premises which the applicant has proved to have been used for the necessary period. (Lord Hoffmann at para 62)

Commons Act amendments

The Commons Act 2006 (Commencement No. 2, Transitional Provisions and Savings) (England) Order 2007 (No. 456)

On 6 April 2007 section 15 of the Commons Act 2006 came into force. Section 15(1) provides that:

"Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies."(Section 5 provides that Part I applies to all land in England and Wales except the New Forest, Epping Forest and the Forest of Dean.)

Section 15(2)-(4) provides as follows:

Section 15(4) is subject to subsection (5) which provides as follows:

In drafting the provisions in this way Parliament has declined to restrict the type of land that can be registered as a town or village green to something approximating to the traditional village green with its memories of maypole dancing, cricket and warm beer that Lord Hoffmann spoke of in R v Oxfordshire County Council ex parte Sunningwell Parish Council [1999] 3 WLR 160 at 163E. Any land can be registered provided the user requirements are satisfied. Thus, land may be registered which was described by the Inspector in Oxfordshire County Council v Oxford City Council (above) as follows:

"The Trap Grounds are nine acres of undeveloped land in North Oxford. .. About one third is permanently under water.. The other two thirds 'are much drier and consist of some mature trees, numerous semi-mature trees and a great deal of high scrubby undergrowth, much of which is impenetrable by the hardiest walker'. Throughout the dry parts of the scrubland there are piles of builders' rubble, up to about a yard high, which are mostly covered in moss and undergrowth. .. I estimate that a total of about 25% of the surface area of the scrubland is reasonably accessible to the hardy walker."The user requirements in section 15(2) of the 2006 Act are the same as those of s22(1A) of the Commons Registration Act 1965 (as amended by section 98 of the CROW Act 2000 with effect from 30 January 2001). The change comes in subsections (3) and (4) which mean that if user as of right has ceased (typically by the erection of fences and signs prohibiting access) applicants have 2 years to apply if cessation occurred after 6 April 2007 and 5 years to do so if cessation occurred before that date.

In Oxfordshire County Council v Oxford City Council (above) the House of Lords confirmed, amongst other things, that:

An application for registration as a town or village green will remain a potent weapon in the hands of those opposed to the development of open spaces in England and Wales.

User as of right

R (On the application of Kevin Paul Lewis) v Redcar and Cleveland Borough Council & Persimmon Homes plc
[2009] EWCA Civ 3

Background

Residents local to Coatham Common in Redcar are locked in a battle with the owners of the land, Redcar and Cleveland Borough Council, and Persimmon Homes to stop the development of the common for mixed leisure and housing purposes. On 20 December 2007 Jackson J quashed the grant of planning permission on grounds of apparent bias or predetermination but on 1 July 2008 the Court of Appeal allowed Persimmon’s appeal and reinstated the planning permission (R (On the application of Kevin Paul Lewis) v Redcar and Cleveland Borough Council [2007] EWHC 3166 (Admin) and [2008] EWCA Civ 746).

This case

On 18 July 2008 Sullivan J refused an application by Mr Lewis for an order quashing the Council’s decision to reject an application by him and other local residents to have part of Coatham Common registered as a town or village green under the Commons Act 2006. Registration as a green would prevent the development of Coatham Common because s29 of the Commons Act 1876 makes it an offence to build on a green.

Key facts

To succeed the local residents had to show that a significant number of residents had indulged as of right (i.e. nec vi nec clam nec precario) in lawful sports and pastimes on the land for a period of at least 20 years. The Council had used the land in question as a golf course for several decades until 2002 and for an equally long period local residents had walked dogs and played children’s games on the land. The Inspector appointed by the Council also found on inquiry that, with the exception of one particular person who came to be regarded by the club as a nuisance, the local residents had co-existed happily with the golf club, with walkers generally giving way to golfers while walking their dogs on the course or otherwise using the land for recreational purposes. The Inspector also found that in 1998 signs were erected on the course that said "Cleveland Golf Club Warning. It is dangerous to trespass on the golf course" and although the signs were vandalised they were in place long enough for regular users to know of them.

Challenge to the council's decision

Mr Lewis challenged the Council’s decision on two grounds. First, the notices erected in 1998 were not prohibitory, in which case use of the golf course in the face of them would have been vi, but were merely warning notices which did not prevent the user of the land being as of right. Second, in respect of the deference shown by local residents towards the golfers, such deference was not inconsistent with the residents asserting a public right to recreational use of the golf course if they deferred to the playing of golf out of elementary prudence, to avoid being hit by a ball, or mutual courtesy to other users of the land.

First instance decision

Mr Lewis conceded that he had to succeed on both grounds to make good his challenge and Sullivan J found for him on the first but not the second.

The judge accepted that user in the face of a prohibitory notice may be a forceful exercise of the user and so vi. But he agreed that a notice that told local residents that they were trespassing, but did not tell them to stop trespassing and instead warned them that it was dangerous to continue to do so because they might be hit by a ball, did not make it sufficiently clear that the Council was not acquiescing in the recreational user of the land.

On the second ground Sullivan J rejected the submission that there had been “give and take” between the local residents and the golf club by reference to the finding of the Inspector to the effect that there was overwhelmingly “give” on the part of the residents and “take” on behalf of the club. By reference to the question - how would it have appeared to the club? - it would not be reasonable to have expected it to have resisted the residents’ recreational use if in practice it did not interfere with the club’s use of the course. What matters is the fact of deference to the landowner’s use of his land not the reasons for such deference. Accordingly the application was dismissed but Sullivan J gave Mr Lewis permission to appeal.

The appeal

As expected, the Court of Appeal heard the appeal quickly on 25 November 2008 and handed down judgment on 15 January 2009. The appeal was dismissed.
In order to secure registration of the common as a green Mr Lewis had to show that "a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least twenty years" as provided by section 15 of the 2006 Act.

The Inspector appointed by the Council heard evidence at length and made a careful review of it in a number of reports to the Council. He found that local inhabitants had indulged in sports and pastimes continuously on the land for over 20 years; that the use was not trivial or sporadic; and that it was nec vi nec clam nec precario. The difficulty from the inhabitants’ point of view was that for a large part of the 20 year period, until 2002, the land had been used as a golf course by the Cleveland Golf Club and the Inspector found that local inhabitants had overwhelmingly deferred to golfers in their use of the land. The Inspector decided that this meant that the use of the land by the inhabitants had not been as of right because it would not have put the club on notice that a right was being asserted against it. Sullivan J rejected the challenge to that decision.

On appeal Mr Lewis contended that, unlike the principle of interruption which holds that registration is not available if the owner’s own activities on the land prevent any other user for significant periods of time, the concept of deference as a bar to creation of a green is a creation of Sullivan J and an unwarranted judicial gloss on the words of the statute. In paragraph 41 Dyson LJ (with whom Laws and Rix LJJ agreed) said this:

Sunningwell

Where, as in this case, the activities of the local inhabitants and of the owners of the land conflict then it is a question of fact whether the former can be said to be user as of right. At paragraph 47 Dyson LJ explained how:

nec vi, nec clam, nec precario

On which side of the line a particular case falls is a matter exclusively for the decision maker. Since the Inspector had made the crucial finding that inhabitants overwhelmingly deferred to golfers and that, bearing in mind the principle of give and take on both sides, that it had been overwhelmingly give on the part of the inhabitants and take on the part of the golfers, and since it could not be said that he had regard to irrelevant factors or failed to take into account relevant factors nor that he reached a decision that was perverse, his recommendation to the Council, and the Council’s decision, to reject the application for want of proof of user as of right was unassailable.

Comment

It remains to be seen whether the House of Lords will again be required to give guidance on the law on the registration of town and village greens.

Applications under 1965 Act

Betterment Properties (Weymouth) Ltd v Dorset Council Council
[2007] EWHC 365 (Ch)

This judgment is concerned with two preliminary points.

(1) Section 14(b) of the Commons Registration Act 1965 provides that "the High Court may order a register maintained under this Act to be amended if...(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." The first preliminary issue was "whether the jurisdiction conferred by section 14(b) of the Commons Registration Act 1965 is by way of rehearing or appellate or on some other basis?" Lightman J held that s14 "imposes no fetter on the evidence or arguments which may be relied on to establish that no amendment or a different amendment should have been made, even as it imposes no fetter on the evidence or argument which may be relied on to establish that it is or is not just to rectify the register; and that it is a matter for the judge hearing the application under Section 14 in the exercise of his case management powers to decide the procedure to be adopted and what should stand as evidence and what should be admitted as evidence at the trial.".

(2) The second issue to be decided was "whether an application to register land as a Town or Village Green (made before 30 January 2001 but not determined before that date) should be determined (1) by reference to the definition of Town or Village Green as it existed before the amendment effected by section 98 and section 103 of the Countryside and Rights of Way Act 2000, or (2) by reference to the amended definition which came into force on that date." Held: the former.

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