Rowena Meager's Property Law Blog

Section 15 of the Commons Act 2006 provides that:

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.