Section 13

Regulations under this Act shall provide for the amendment of the registers maintained under this Act where-

(a) any land registered under this Act ceases to be common land or a town or village green; or

(b) any land becomes common land or town or village green; or

(c) any rights registered under this Act are apportioned, extinguished or released, or are varied or transferred in such circumstances as are prescribed; …

Section 14

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 regualtions made under this Act;

and … the court deems it just to rectify the register

Clayton Fields had been registered as a new town or village green (“TVG”) on 14 April 1997 following an application to register it in 1996 pursuant to section 22 of the 1965 Act which, at that time, read as follows:

“town or village green” means land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years.

The application by the Claimant was based upon the proposition that KMC was wrong to register Clayton Fields as a TVG because the application did not satisfy the “inhabitants of any locality” requirement. The term “locality” has been given a very technical meaning and it was contended that it was necessary for the locality relied upon by the applicant to have been a legally recognised administrative district. The 1996 application to register Clayton Fields as a TVG had identified “Edgerton / Birkby” as the locality upon which it relied and this, it was submitted by the Claimant, was not a legally recognised administrative district. Hence, the statutory test was not met.

The first defendant, KMC, took no part in the proceedings, saying that it adopted a neutral stance and would abide by any order of the court. The second and third defendants on behalf of the Clayton Fields Action Group (“CFAG”) responded to the Claimant’s application on the basis that, firstly, the user demonstrated in 1997 was user by inhabitants of a qualifying locality and, second, in the event that the court did not accept that argument, that the necessary statutory criteria could be met now because of the more relaxed locality requirements introduced by section 98 of the Countryside and Rights of Way Act 2000 (“CROW”), amending section 22 of the 1965 Act, which provided that user could be either “by a significant number of the inhabitants of any locality or of any neighbourhood within a locality”. It was contended on behalf of CFAG that a new application made now would be able to show user by the inhabitants of the neighbourhoods of Edgerton and Birkby.

Vos J examined the relevant law at length. Those familiar with TVG law will be very aware of the highly technical nature of the law in this context which has generated a very substantial body of case law on the topic. Having done so the Judge considered the material that was available to the Committee which took the decision in 1997 to register Clayton Fields as a TVG and he concluded that the Committee had not been justified in making the registration because the locality requirement, when given its proper legal meaning, was not satisfied. Therefore, the court had to consider whether an application made at a later stage could have been successful. Two arguments were advanced by the Claimant to support its contention that such an application could not have succeeded. Only one of them played any significant role in the Judge’s reasoning. It was submitted that user after the date of registration did not constitute user “as of right” because the user thereafter was indulged in lawfully (ie it was not nec precario – without consent). This point was correct as a matter of law, said the Judge, but had to be considered again when one looked to the justice of the case. It could not be conclusive, he said, because that would automatically prevent opposition to an application for rectification by removal of a registration and would nullify the effect of section 14.

The Claimant’s case was bolstered, according to the Judge, on the basis that at the time of the original application the then landowner was about to appeal a refusal of planning permission – Clayton Fields was earmarked for development. Had the application for registration been unsuccessful, given the intended purpose for the land, the landowner would either have obtained permission to develop through the process of an appeal or, in the hope that development might later be permitted, the landowner would have taken steps to bring any qualifying use to an end. As a result of the registration of Clayton Fields as a TVG those options were not available to the landowner.

Vos J had, ultimately, to consider whether it was just to order rectification of the register within the requirement of section 14 of the 1965 Act. He concluded that, on balance, whilst the local inhabitants would lose the use of a recreational space there would be no other prejudice to them. The prejudice, however, to the landowner if rectification was not ordered would be to deprive the landowner of its lawful right to develop its land without compensation on the strength of its unjustified registration as a TVG.

On the facts this decision is unsurprising. However, it does perhaps signify the beginning of a trend for landowners to seek to undo the earlier registration of a TVG thereby restoring land to its full potential value for development. It is foreseeable in an era where government policy is moving in the direction of presumptions in favour of sustainable development and a recognition that there is an urgent need for new housing stock that there may be a new wave of TVG litigation, shifting away from issues concerning the appropriateness of new registrations to issues surrounding the inappropriateness of old registrations.

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.