Rowena Meager's Property Law Blog

It looks as though 2010 could well be another very significant year for the development of the law on the registration of new town and village greens (now governed by the Commons Act 2006, previously the Commons Registration Act 1965). In January the Supreme Court of the United Kingdom will hear the appeal in R (on the application of Kevin Lewis) v Redcar & Cleveland Borough Council & Persimmon Homes (Teeside) Limited [2009] EWCA Civ 3. This will be the fourth appeal in the context of the law on the registration of new town and village greens to come before the UK’s highest court in a little over a decade, the forerunners being Oxfordshire County Council v Oxford City Council [2006] UKHL 25,  R (Beresford) v Sunderland City Council [2003] UKHL 60 and R v Oxfordshire County Council Ex parte Sunningwell Parish Council [1999] UKHL 28. The decision will hopefully provide some welcome clarity on the question of the relevance of deference by the qualifying user to the landowner’s use of his own land and the relationship between such deference and the user as of right test which test is central to any prescriptive claim. Update: the decision in Redcar was handed down on 3 March 2010 – for a post on that decision see here.

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.