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 …

… a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years …

The proper interpretation of the component parts of this provision (and, more particularly, its predecessor provision in the Commons Registration Act 1965) has consumed what might be regarded by some as a disproportionate amount of judicial time over the last decade or so. Many issues of interpretation have now been resolved at the highest judicial level. However, one aspect of the statutory test which has undergone less close scrutiny has recently been considered by the High Court in the case of R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust) v Oxfordshire County Council & Others [2010] EWHC 530 (Admin): that is how one determines whether the user requirement is met? In this case the applicant was relying upon a “neighbourhood within a locality”. It should be noted that the application for registration in this case was actually made under the predecessor provision to section 15 of the Commons Act 2006; that is section 22(1A) of the Commons Registration Act 1965. However, the following discussion will be relevant to the proper interpretation of the current provision given that the statutory wording is reproduced therein.

The application in this case concerned a meadow, known locally as Warneford Meadow, of approximately 20 acres. The meadow is owned by an NHS Trust and is situated in a central location within the City of Oxford, surrounded by hospital sites and residential areas. The difficulty which faced the applicant in this case is one which many applicants may face when seeking to have land registered as a new green which is situated within a large urban area as distinct from an easily definable parish (say, a village), for example. How does one define a “neighbourhood within a locality” and what use is required in order to satisfy the “significant number of the inhabitants of … any neighbourhood within a locality” requirement?

At the public inquiry stage the meaning of  “neighbourhood within a locality” was a point of real contention. The applicant did not rely upon any recognised administrative ward or ecclesiastical parish or the like. The applicant had constructed its own neighbourhood for the purposes of making this application. The neighbourhood was given a name by the applicant (the Divinity Road Neighbourhood) but was made up of a number of predominantly residential roads. The Inspector who chaired the public inquiry rejected the Divinity Road Neighbourhood as being a neighbourhood for the purposes of the Act as it was an “artificial construct”. He did, however, find that Hill Top Road (which was one of the roads included in the “artificial” Divinity Road Neighbourhood) was a neighbourhood for the purposes of the Act and, therefore, the application could succeed on the basis that a significant number of its residents had made qualifying use of the meadow. Hill Top Road was substituted for the Divinity Road Neighbourhood and the application succeeded on that basis.

The Claimant in this case argued that the applicant could not succeed on the basis of this (smaller) neighbourhood because only about a third of the users actually came from Hill Top Road. Therefore, they said, the application must fail because the users did not come predominantly from the neighbourhood identified.

In order to understand the basis for this argument it is necessary to briefly look back at the original statutory provision which facilitated the registration of new greens, section 22 of the Commons Registration Act 1965, and the court’s interpretation of its proper application. This provision only referred to the need for “the inhabitants of any locality” to have indulged in lawful sports and pastimes (note that there was no reference to a “neighbourhood within a locality” – this was introduced by a subsequent amendment, discussed below). In R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335 Lord Hoffmann considered the effect of people from outside the locality also using the land with which the application was concerned. He said that whilst the statutory wording “merely requires proof of user by the inhabitants of any locality it does not say user only by the inhabitants of the locality”. Having then gone on to consider the evidence which had been put before the public inquiry Lord Hoffmann concluded that “it is sufficient that the land is used predominantly by inhabitants of the village [ie the locality in the Sunningwell case]“. The judge in the present case, HHJ Waksman QC, sitting as a judge of the High Court, noted that it was not clear whether the “Predominant User” test was part of the ratio of Sunningwell or not. However, on the assumption that it was at that time, he then went on to consider the amendment which replaced the old section 22 of the 1965 Act withe the new section 22(1A) (this amendment was introduced by section 98 of the Countryside and Rights of Way Act 2000). The material alterations to the original section 22 were to include a “neighbourhood” as an alternative to a “locality” and to alter the user requirement from “the inhabitants of any locality” to one requiring “a significant number of the inhabitants of any locality”. This, it was noted by Carnwath LJ in Oxfordshire County Council v Oxford City Council [2006] Ch 43, introduced “the new concept of ‘neighbourhood within a locality’, and required no more than a ‘significant’ number of local users”. The effect of that, said HHJ Waksman QC in the present case, is that the Predominant User test (arguably introduced by Lord Hoffmann in Sunningwell) was not carried forward into the new section 22(1A) of the 1965 Act. So as to leave no room for doubt he also reviewed the Parliamentary materials which were relevant to that statutory amendment which he concluded could not have been clearer; predominant user was not a requirement. This had also been expressly recognised by Lord Hoffmann in Oxfordshire County Council v Oxford City Council [2006] UKHL 25.

What impact does this decision have? Applicants seeking to have land registered as a new green can rely upon very limited areas (a single residential road, it seems) as a neighbourhood within a locality for the purposes of meeting the statutory test; what they cannot do is artificially construct a neighbourhood for the purposes of making an application. If a neighbourhood can be identified then it is enough that a significant number of inhabitants of that neighbourhood have made qualifying use of the application land. The fact that other people from outside the neighbourhood may also have used the land in a qualifying manner will not cause the application to fail because it is not necessary for the qualifying users to come predominantly from within the neighbourhood.

The Supreme Court was having none of it, and rightly so. The introduction of this qualification had overcomplicated the as of right test which is at the heart of any claim based upon the doctrine of prescription. Not only was it creating a chasm between the user as of right test in the context of new green registration applications and the other contexts in which the as of right test is applicable (ie the prescriptive acquisition of easements, public rights of way and profits a prendre), it was also defeating the purpose of the Commons Act 2006 which exists to facilitate the registration of new greens when the particular statutory requirements are met.

It is no doubt as a result of the increased number of new green registration applications that the Inspectors (who chair public inquiries into the registration of new greens) and the courts have become a little sceptical about the validity and purpose of such applications. However, on this subject Lord Walker had this to say at paragraph [48] of his speech:

Disparaging references are sometimes made to the “village green industry” and to applications for registration being used as a weapon of guerrilla warfare against development of open land. The House of Lords has (both in Beresford and Oxfordshire) expressed some doubt about the extension of town or village green protection to land very different (both in size and appearance) from a traditional village green. However, in the Commons Act 2006 Parliament has made it easier, rather than more difficult, to register a green…

It is the suspicious approach to the proliferation (and likely continued proliferation) of new green registration applications that had no doubt given rise to the court’s acceptance that the user as of right test could and should be qualified by the concept of deference, not least because it would be a way of curtailing the number of applications which might otherwise succeed. However, qualifications to well established legal tests should only be acknowledged when they have some genuine legal basis, which deference did not.

The decision of the Supreme Court is to be welcomed. It was acknowledged that where two uses (the use of the landowner and the use of the recreational users) coincide there may be occasions when the two rights of user cannot be enjoyed simultaneously; the deference of one party to the other’s use simply being a matter of courtesy. Nothing more than that. Even more pleasing is the fact that Lord Hope, at paragraph [76] of his speech, referred to my article in which I had criticised the Court of Appeal’s decision in this case!

The following month the High Court will judicially review the correctness of a registration authority’s decision to register land as a new green. One of the issues likely to be determined in that case is what constitutes a “neighbourhood” for the purposes of the statutory test. Section 15 of the Commons Act 2006 provides that any person may apply to the registration authority to have land registered as a new green where it can be demonstrated that a significant number of the inhabitants of any locality, or a neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.

The question what constitutes a neighbourhood has caused considerable confusion, particularly in the context of new green registration applications concerning land within a densely populated environment (usually a city or very large town). Unlike in rural settings where one might normally rely upon a parish as being the relevant locality, within large towns and cities, unless one can point to a specific administrative area as being the relevant neighbourhood, it can be quite difficult to coherently define one’s neighbourhood within a locality. There has been a limited amount of judicial guidance on what constitutes a neighbourhood for these purposes. In R (Cheltenham Builders) v South Gloucestershire Council [2003] EWHC 2803 (Admin) Sullivan J said that a neighbourhood cannot be any area drawn on a map, it must have some degree of cohesiveness. In Oxfordshire County Council v Oxford City Council [2006] UKHL 25, however, Lord Hoffmann said the phrase “any neighbourhood within a locality” (the wording of the relevant provision in the Commons Registration Act 1965 which is replicated in the 2006 Act) was obviously drafted with deliberate imprecision.

These cases promise to provide an interesting start to 2010 as far as the development of the law of new town and village greens is concerned.

There are two methods by which a new public right of way can come into existence. First, section 31 of the Highways Act 1980 provides for the presumption of dedication of a highway after 20 years use. That provision was held not to apply in this case. In the alternative the common law rules still apply, the statutory rules having been introduced to supplement rather than replace the common law. The main difference being that at common law it is not necessary to prove 20 years use which is a pre-requisite for the operation of the statute. This case was concerned with the application of the common law rules.

Ultimately the Court of Appeal determined that the order for the modification of the Definitive Map and Statement be quashed, the requisite test having not been met. Crucial to this decision was the fact that at a previous public inquiry in 1978 there had been objections to the registration of a bridleway along the same route as the claimed footpath. It is not clear whether either of the parties who made the objections were the owners of the land over which the way passed. However, Scott Baker LJ, giving the judgment of the Court of Appeal in this case, concluded that it was possible they could have been the landowner. If that was the case then the objections would have been sufficient to demonstrate that the landowner had no intention to dedicate the way as a public right of way. Unlike in other contexts in which the rules of prescription operate, in the context of public rights of way (as distinct from say easements or new town or village greens) if the landowner does something which amounts to evidence that he did not intend to dedicate a right of way, that will prove fatal to the claim, even where use is otherwise use ‘as of right’.

The end result is that whilst the possibility that one of the 1978 objections was made by the landowner remains alive, there can be no prospect of a public right of way being established. Of course, if the ownership of the land is determined and it becomes apparent that none of the objections came from the then landowner, the door will be open for modification of the Definitive Map and Statement at some later date.

One interesting aspect of the judgment concerned Scott Baker LJ’s criticism of the reasoning of Keith J at first instance. Keith J had concluded that whilst there had been objections in 1978, one of which may have been an objection by the landowner, any failure thereafter to continue to object to the public’s use of the way “neutralised” the effect of the objection made at the 1978 inquiry as far as any inference of dedication was concerned. Such failure to take active steps to prevent continuing user might well be insufficient to render user vi and, therefore, no longer use as of right, which would be insufficient to prevent a prescriptive claim succeeding in the context of a private right of way or new green claim. However, it is the need to infer dedication of the public right of way which enables any expression of contrary intention to have such a dramatic effect on the potential success of a prescriptive claim where public rights of way are concerned.

The relevant legislation

Originally new greens were registrable under the Commons Act 1965. There are still some applications proceeding under this legislation. However, the Commons Act 2006 has repealed the 1965 Act and section 15 of the new Act provides a more generous test which applicants have to meet (more generous because it permits the bringing of an application to register land as a new green even where the qualifying use of that land has stopped prior to the application whereas under section 22(1A)(a) of the 1965 Act use had to “continue” which was judicially interpreted by the House of Lords in Oxfordshire County Council v Oxford City Council – sometimes referred to as the “Trap Grounds Case” – to mean “continue until the date of the application”). Notwithstanding this obvious distinction, both pieces of legislation provide(d) for the registration of new greens on the basis of statutory prescription. The acquisition of rights by prescription is, of course, not limited to new greens: it is relevant to the creation of easements, profits and public rights of way too.

This is a very brief, general overview of the legislation. The statutory test is actually quite detailed and there has been much judicial scrutiny of it. I will endeavour to deal with more specific aspects of it in later posts.

The doctrine of prescription

The doctrine of prescription requires that qualifying use be “as of right”. This means that use must be nec vi, nec clam, nec precario (without force, without stealth and without permission) which is discussed briefly below in the context of a recent decision of the Court of Appeal in Lewis v Redcar. However, rather more is required, in the context of new green registration at least, than the simple tripartite test. Use must also, according to Lord Walker in R v City of Sunderland (ex parte Beresford), be trespassory. At one point it was suggested that qualifying users had to believe that they were using the application land pursuant to an imagined legal right to do so but the House of Lords in R v Oxfordshire County Council (ex parte Sunningwell Parish Council) rejected any suggestion that the subjective beliefs of the users was relevant. Following the Court of Appeal’s decision in Lewis v Redcar the qualifying users’ deference to the landowner’s use of his own land may well be a relevant factor in determining whether use is as of right because it has a bearing on the outward appearance to the reasonable landowner whether the qualifying use was an assertion of the legal right claimed. If the qualifying use were to give the impression to a reasonable landowner (an objective test) that the users were using his land as if by right, in the event that the landowner fails to take some action to stop the qualifying use he will be deemed to have acquiesced in it. This is an important aspect of the as of right test.

New green applications in context

Why have applications to register new greens become so popular in recent years? The answer is two fold. Firstly, the 1965 legislation introduced the first system of formal registration of town and village greens. There was a cut off date in July 1970 for the registration of greens which were already in existence (certain criteria had to be met). Thereafter, even land which may have qualified as a green at that time but which had not been registered would have lost the opportunity to be so registered. There were criteria provided in the legislation which enabled the registration of new greens coming into existence following the cut off date to be registered. However, the period of precriptive user was 20 years which meant that no application for registration could be made until after July 1990, less than 20 years ago. This explains why the law on the registration of new greens was unheard of until very recently, because it simply did not exist.

Secondly, the aim of any application to register land as a new green is to preserve a space which has been used by a community for informal recreation over a long period. Much of this land is becoming subject to proposed development. Where the local users have failed to prevent development through the usual process of objection to the planning authority, a successful application for registration as a new green has the desired effect. All registered greens are subject to the Inclosure Act 1857 and the Commons Act 1876 which, between them, prevent inclosure of or building upon a town or village green. Hence, new green aplications have become an effective weapon in the arsenal of the anti-development movement where there has been informal recreational use over the requisite period.

Procedure

All new green applications are made to the registration authority (a local council). Once received the authority will notify the landowner who will, almost certainly, object to the application. Both parties will put their case and if there is any contention then it is likely that a public inquiry will be held. This is usually held in the area local to the application site. It is common for a very experienced barrister (with expertise in the law of new greens) to be appointed to chair such an inquiry (s/he is called the Inspector) and the inquiry takes a similar form to a trial. There will be formal exchange of evidence, submission of legal arguments, opening submissions, examination and cross examination of witnesses on both sides and, finally, closing submissions. Whilst witnesses give their evidence unsworn, the process of examination and cross examination is essentially the same as one would see in a court room. Solicitors and barristers are frequently instructed to represent the parties and, given the technicality of the law in this area, this is to be recommended. Notwithstanding this, however, it is not uncommon for Applicants to appear in person because of the obvious problems of funding. Landowners are more likely to have access to the necessary resources and, in the protection of potentially valuable land, are more inclined to pay for properly qualified representation.

Once the public inquiry has closed the Inspector will write a report which is provided to the registration authority. The report will analyse all of the evidence and the legal arguments made by all parties and will make a recommendation as to whether the application should succeed or fail. Reasons will be comprehensively given. Registration authorities tend to follow the recommendation of the Inspector although they are not under any legal obligation to do so. Either of the parties may apply for a judicial review of that decision if they have grounds to do so.

Public inquiries can last for anything from a couple of days to a few weeks (rare though). The Inspector’s report can take a number of months to be produced. Not only does it require considerable work to put together a comprehensive report, the popularity of new green applications is keeping specialist practitioners very busy! The new legislation which makes it easier to apply for registration is only likely to increase this trend as is the increasing pressure upon local authorities to find space for new developments.

That’s it for now

There are very many components of new green law which provide interesting points of contention. These will be discussed in more detail in future posts but, for now, welcome to the law on new greens, albeit in very  brief outline only!

“At the highest from the appellant’s point of view, one is left with the position that, almost two centuries after the passing of the 1832 Act, there is no clear authority for the application of the section 2 in the way they propose, and a striking lack of consensus among the text-book writers.“

It’s an interesting case about the acquisition of a prescriptive right of way over the common. The conflicting authorities on the proper interpretation and application of the relevant provisions of the 1832 Act are addressed in some detail.