Rowena Meager's Property Law Blog

The law on the registration of new town and village greens continues to generate litigation in the quest to determine the proper interpretation of the statutory test under section 15 of the Commons Act 2006 (previously the Commons Registration Act 1965, as amended by section 98 of the Countryside and Rights of Way Act 2000 (“CROW”)). One of the most recent cases to be decided by the High Court is Leeds Group Plc v Leeds City Council [2010] EWHC 810 (Ch), shortly to be the subject of an appeal. The main issue for the court to determine in this case was what constitutes a neighbourhood. Section 15 of the Commons Act provides that “any person may apply to the Commons Registration Authority to register land as a town or village green 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 reference to “any neighbourhood within a locality” was first introduced by the amendment under s98 of CROW, the earlier statutory provision referring only to a locality. It is generally accepted that the purpose for this amendment was to make it easier for applicants to meet the statutory test. This amendment was regarded as particularly helpful to those seeking registration of land in an urban (rather than rural) context where the identification of a “locality” could sometimes be difficult, if not impossible.

In the Leeds case the court was referred to previous authority on the proper interpretation of what constitutes a “neighbourhood”. In R (on the application of Cheltenham Builders) v South Gloucestershire District Council [2003] EWHC 2803 (Admin) Sullivan J (as he then was) said that a neighbourhood had to have a “sufficient degree of cohesiveness” (para [85] of the judgment), although this comment was obiter. In the later case of Oxfordshire County Council v Oxford City Council [2006] UKHL 25 Lord Hoffmann said that the “any neighbourhood within a locality” requirement (added by the CROW amendment) was “obviously drafted with deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries” (para [27]).

In the Leeds case the Inspector, who chaired a public inquiry into the application and who made the recommendation to the Commons Registration Authority that the land should be registered as a green, had determined that the geographical area relied upon by the applicant was a neighbourhood for the purposes of the Act. The Judge in the High court disagreed but concluded that there were, in fact, two neighbourhoods, each of which independently satisfied the “cohesiveness” requirement referred to in Cheltenham Builders. On that basis, whilst the Judge concluded that the Inspector had erred in his finding that there was a single neighbourhood, the Judge held that the land could, nevertheless, be registered on the basis that the users came from two identifiable neighbourhoods. This inevitably gave rise to a discussion of whether the statutory test could be met where more than one neighbourhood is relied upon in such an application. The Judge said “the Act now only requires a ‘significant number’ of the inhabitants of ‘any neighbourhood within a locality’ to have indulged in the activities. There is nothing in the wording limiting the neighbourhood to ‘one neighbourhood’ and there is no logical reason why there cannot be two or more neighbourhoods” (para [96] of the Leeds judgment).

An appeal against this decision is to be heard by the Court of Appeal next month. Notwithstanding the already weighty body of case law on the law relating to the registration of new town and village greens, the proper interpretation of the statutory test is still causing much difficulty which can only be resolved by judicial determination. It is understood that in the Leeds appeal the correctness of the decision in R (on the application of the Oxfordshire & Buckinghamshire NHS Mental Health Trust and Oxford Radcliffe Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin), discussed in an earlier post, will also be challenged.