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The main cases
Statutory incompatibility
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User as of right

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The main cases

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.

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"
In R (Newhaven Port & Properties Ltd) v East Sussex County Council[2013] EWCA Civ 276 it was held that a beach could be registered as a town or village green. The consequences that this registration might have for the future discharge of a port authority's functions was not relevant. The existence of byelaws giving implied permission to use the beach had not been displayed and was not sufficient to prevent user as of right.

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 date of the application for registration?
  • The date of registration? Or,
  • Some other date?
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)


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