“If there is a date until which use must have continued then simple logic dictates that the [not less than/at least] twenty year period immediately preceding that date will be the relevant period.”

I think the matter best now left until a court pronounces

Turning to the proper interpretation of the phrase “as of right for not less than twenty years”. That is, indeed, the wording which was used in the 1965 Act. For completeness, it is worth noting that the 2006 Act uses the following terminology: “as of right … for a period of at least twenty years”. I would regard the distinction between the two phrases as being a matter of semantics. What both require is that there be “at least twenty years user” in order to succeed. That is not to say there cannot be considerably more than twenty years user, but anything less than that will not do. Of course, all of this is subject to the need for qualifying user to continue until the date prescribed by the statute (which, as has been noted above, is the date of the application in relation to applications under the 1965 Act and no more than 2 or 5 years before application under the 2006 Act depending upon whether user ceased before or after the commencement of section 15 of the 2006 Act).

As for the point that most inquiries interpret the “twenty year user requirement” as a fixed period of twenty years, I would simply say it is moreorless inevitable that they will do so. If there is a date until which use must have continued then simple logic dictates that the twenty year period immediately preceding that date will be the relevant period. Anything beyond that (thereby extending the duration of user relied upon) is completely unnecessary in order to succeed in an application. So, even if there has been 50 years qualifying use, all that is necessary to satisfy the legal test is that there be twenty years qualifying use. There is little point in going to the time, trouble and expense of “proving” (to the requisite standard) that use extends beyond the necessary period.

However your “time when qualifying use started is irrelevant as long as there has been 20 years or more of qualifying use” raises an interesting question. If ‘irrelevant’ why did not the 1965 Act section 22(1) just say, “as of right for a period of twenty years.” instead of “as of right for not less than twenty years.”?

Earlier in the 1965 Act it said, “Disregard of certain interruptions in prescriptive claims to rights of common 16.—(1)(b)(ii) (ii) in computing the period of thirty or sixty years mentioned in section 1 of that [Prescription] Act [1832]. …”.

As well as the 1832 Act the drafter had a precedent for a fixed period of 20 years — concerning public rights of way in the Rights of Way Act 1932: now Highways Act 1980.

Possibly Baroness Hale in Trap Grounds was near the mark when she said, “145 The final issue was not on the examination paper at all, but it is relevant … [the] essence of the very expression “town or village green” … I myself have considerable sympathy for the views expressed by my noble and learned friend, Lord Scott of Foscote. The very powerful points made by my noble and learned friend Lord Hoffmann in paragraph 39 of his opinion depend to a large extent on events since the 1965 Act was passed rather than on the meaning of the phrase at the time when it was enacted. I believe that it would be much better for us to leave this issue to be properly fought out on another day.”.

A court still has to pronounce on the meaning of “not less than twenty years”. As a matter of plain English, let alone symmetry within the Act, it surely cannot mean ‘a fixed period of twenty years’: which is the way most inquiries regard it. The Commons Act 2006 has not altered ‘not less than’: as you say, only moved the end date to a maximum of 2 or 5 years before the date of the appliaction.

My reference to applications not being possible until after July 1990 in my original post is not a suggestion that any particular start date is necessary in order to meet any statutory criteria. It was simply an observation that because the cut off date for registration of land that already qualified as a green under the 1965 Act was 31 July 1970, even land which would have qualified but in respect of which no application had been submitted would then cease to be registrable as a green (losing any claim to green status at that point which it might previously have had) and the only way in which it could subsequently acquire town or village green status would be to qualify under what became known as the class [c] green criteria. Because the cut off date for initial registration was 31 July 1970 no new class [c] green could come into existence until 1 August 1990 at the very earliest because until then the 20 years qualifying user requirement could not possibly have been met. The trap Grounds case provided a very interesting discussion on precisely this point as I am sure all “new green registration law enthusiasts” will be aware (issue (v) in the House of Lords), because the applicant in that case, following advice from the Open Spaces Society, had made an application on the basis that the Trap Grounds had become a new green on 1 August 1990 (the first possible date upon which qualifying use could have met the necessary criteria) despite the fact that the application was made almost 12 years after that date in June 2002.

The House of Lords, of course, ruled that an application on that basis could not succeed but the application to register the Trap Grounds nevertheless did succeed on the basis that qualifying use continued until the date of the application (overturning the rather perverse ruling of the Court of Appeal).