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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

Registration

R (on the application of Kevin Paul Lewis) v Redcar and Cleveland Borough Council & Persimmon Homes plc
[2010] UKSC 11

Summary

The Supreme Court has allowed the appeal of Mr Lewis, from the dismissal of his application for judicial review of the council’s decision to refuse to register land in Redcar known as Coatham Links as a town green under s15(4) of the Commons Act 2006, and ordered the council to register the land.

The section

Section 15(4) of the 2006 Act applies where 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.

Facts

The facts found by the inspector appointed by the council were that part of the land had until 2002 been used for decades as a popular golf course by tenants of the council; that non-golfing local inhabitants used the same land extensively for informal recreation such as dog walking and children’s play; that walkers would not walk on playing areas when play was in progress or would wait until play had passed or they were waved across; so that the recreational use by local people overwhelmingly deferred to golfing use.

In those circumstances the inspector advised the council that the use of the land by local people was not “as of right” until 2002 when the golf course use ceased so that section 15(4) of the 2006 Act did not apply.

Application for judicial review

Sullivan J asked himself how the matter would have appeared to the golf club and concluded that it would not have been reasonable to have expected the club to resist the recreational use of the land by local residents if that use did not in practice interfere with its use by the golf club. The Court of Appeal agreed with that approach and could not see any basis for challenging the council’s decision on public law grounds by way of judicial review.

Supreme Court decision

The Supreme Court disagreed and allowed the appeal. Lord Walker (at paragraph 36) said that Lord Hoffmann was absolutely right in R v Oxfordshire County Council Ex p Sunningwell Parish Council [2000] 1 AC 335 to say that the English theory of prescription is concerned with how the matter would have appeared to the owner of the land but he reached a different conclusion to the courts below on the facts:

"But I have great difficulty in seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the disputed land, simply because they normally showed civility (or, in the inspector’s word, deference) towards members of the golf club who were out playing golf. It is not as if the residents took to their heels and vacated the land whenever they saw a golfer. They simply acted (as all the members of the court agree, in much the same terms) with courtesy and common sense. But courteous and sensible though they were (with occasional exceptions) the fact remains that they were regularly, in large numbers, crossing the fairways as well as walking on the rough, and often (it seems) failing to clear up after their dogs when they defecated. A reasonably alert owner of the land could not have failed to recognise that this user was the assertion of a right and would mature into an established right unless the owner took action to stop it."In the light of that he held (paragraph 38) that the Inspector had made an error of law because he had misdirected himself as to the significance of perfectly natural behaviour by the local residents. In paragraph 20 Lord Walker said:

"The proposition that 'as of right' is sufficiently described by the tripartite test nec vi, nec clam, nec precario (not by force, nor stealth, nor the licence of the owner) is established by high authority."Lords Hope, Brown and Kerr agreed that there was, as Lord Brown put it in paragraph 107:

"… no good reason whatever to superimpose upon the conventional tripartite test for the registration of land which has been extensively used by local inhabitants for recreational purposes a further requirement that it would appear to a reasonable landowner that the users were asserting a right to use the land for the lawful sports and pastimes in which they were indulging."Lord Kerr explained (paragraph 114) that what underpinned the assertion by the council that it was necessary to show not only user nec vi, nec clam, nec precario but also that it was reasonable to expect the landowner to resist the use of the land by local inhabitants was:

"… the view that the registration of the lands as a village or town green had the inexorable effect of enlargement of the inhabitants’ rights and the commensurate diminution of the right of the owner to maintain his pre-registration level of use, if that interfered with the inhabitants’ extended use of the lands."This view derived from the majority ruling by the House of Lords in Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 that registration as a green gives the right to use the land for any lawful sports and pastimes, not only those which had been the basis for registration. In the Court of Appeal, Rix LJ was concerned (paragraph 65) that if the appeal succeeded there would be no way of resolving questions that would arise as to whether the local inhabitants could, for example, walk on the greens during play or even play golf as if they were members of the club. These were hypothetical questions in the particular case since the land had ceased to be used as a golf course but Lord Walker doubted (paragraph 41) whether the attitude of the inhabitants would have suddenly turned from friendly civility to vindictive triumphalism after registration. But the question of law raised did need to be considered on the footing that it was possible that relations between the two groups might become rather more strained. Addressing that question caused Lord Walker to reconsider (paragraph 47) the general agreement that he expressed with what Lord Hoffmann said in Oxfordshire (paragraphs 49 to 51) about registration as a green creating rights to use the land generally for sports and pastimes. He found that he agreed with everything apart from the notion that a custom to have an annual bonfire on Guy Fawkes Day could be a sufficient basis for registration of a green. Lord Walker remained in agreement with what Lord Hoffmann had said in paragraph 51 that registration:

"… 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. There has to be give and take on both sides."Once the special case of the annual Guy Fawkes Day bonfire was eliminated Lord Walker saw:

"… little danger, in normal circumstances, of registration of a green leading to a sudden diversification or intensification of use by local residents. The alleged asymmetry between use before and after registration will in most cases prove to be exaggerated. Golfers and local residents can co-exist without much friction even when the latter have established legal rights."Lord Hope found nothing in s15(4) of the 2006 to support the approach of the courts below, that the effect of registration would be to enlarge the rights of the local inhabitants in a way that would effectively prevent the golfers from using the land for their own purposes (paragraph 71):

"On the contrary, the theme that runs right through all of the law on private and public rights of way and other similar rights is that of an equivalence between the user that is relied on to establish the right on the one hand and the way the right may be exercised once it has been established on the other. … one looks to the acts that have been acquiesced in. It is those acts, and not their enlargement in a way that makes them more intrusive and objectionable, that [the owner] afterwards cannot interfere to stop. This is the basis for the familiar rule that a person who has established by prescriptive use a right to use a way as a footpath cannot, without more, use it as a bridleway or for the passage of vehicles."Lord Brown referred (paragraph 105) to the fact that in Oxfordshire, the land was disused scrubland so that the owner could not complain if the local inhabitants gained full and unqualified recreational rights on registration but, in paragraph 106, on the different facts of the instant case:

"… had the use of the land as part of a golf course continued, the locals would in my opinion have had to continue “deferring” to the golfers."In agreement with Lords Hope and Walker, Lord Kerr (paragraph 115) that the view that enlargement of rights post-registration was the effect of the relevant authorities, including Oxfordshire, may now be discounted because:

"Whatever may have been the position previously, however, it is now clear that, where it is feasible, cooperative, mutually respecting uses will endure after the registration of the green. Where the lands have been used by both the inhabitants and the owner over the pre-registration period, the breadth of the historical user will be, if not exactly equivalent to, at least approximate to that which will accrue after registration."Conclusion

The decision of the Supreme Court means that the Coatham Links Coastal Regeneration Project for a mixed development of residential and leisure purposes over 14 hectares will not now be able to be realised, certainly as planned and possibly not at all. Lords Walker and Rodger both referred to Parliament having declined to amend the law to address doubts expressed by the House of Lords in Beresford and Oxfordshire about the extension of protection to land very different from a traditional village green, Lord Walker observing that the 2006 Act made it easier rather than more difficult to register a green. The consultation that is proposed take place this spring might result in legislation that will curb what, as Lord Walker observed (paragraph 48) is referred to by some as the village green industry which sees applications for registration being used as a weapon of guerrilla warfare against development of open land. But whatever the outcome of the proposed consultation it seems likely that the courts will again be called upon to adjudicate between users and owners of open land in cases where there has been co-extensive use historically, most likely related to how the balance is to be struck between the use which each group is entitled to make of the land following registration as a green.

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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