New Windsor Corporation v Mellor
| Jurisdiction | England & Wales |
| Judge | The Master Of The Rolls,LORD JUSTICE BROWNE,Mr. JUSTICE BRIGHTMAN |
| Judgment Date | 20 May 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0520-3 |
| Date | 20 May 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J0520-3
The Master of the Rolls
(Lord Denning),
Lord Justice Browne and
Mr. Justice Brightman.
In The Supreme Court of Judicature
Court of Appeal
Appeal by the Royal Borough of Windsor from a decision of Mr. Justice Foster upholding a decision of the Chief Commons Commissioner that an area of land some two acres which is more or less in the middle of Windsor should be registered as a common, on 20th March 1974
Mr. PATRICK FREEMAN, Q.C., and Mr. KONRAD SCHIEMAN (instructed by Messrs. Marris & Shepherd, agents for Mr. G.N. Waldram) appeared on behalf of the Royal Borough of Windsor and Maidenhead.
Mr. L. PRICE, Q.C., and Mr. M.J. DRISCOLL (instructed by Messrs. Lovegrove & Durrant of Windsor) appeared on behalf of Miss D.E. Mellor, the applicant for registration.
Today we look back far in time. To a town or village green. The turf is old. Animals have grazed there for hundreds of years. Nowadays they are pleasant stretches of grass where people sit and talk. Sometimes they play cricket or kick a ball about. But in mediaeval times it was the place where the young men mustered with their bows and arrows. They shot at the butts. There might be stocks there where offenders were put for their petty misdemeanours. In the month of May they set up a maypole and danced around it. We have no record of when it all began, but the poet tells us:
"On the green they watched their sons Playing till too dark to see, As their fathers watched them once, As my father once watched me"
The villagers have an undoubted right to play games on their green. But whence comes their right? Not in deeds or in statutes. Only in custom from time immemorial. Rarely has it ever been challenged, but it may be useful to draw attention to the few cases on it. To be good, of course, a custom must be reasonable. In 1666 the owner of the land complained that the villagers danced on his field and spoilt his grass. But they proved a custom for all the inhabitants to dance there at their free will. The Court held that "this is a good custom, for it is necessary for inhabitants to have their recreation", see Abbot v. Weekly (1666) 1 Levinz 176. But when a piece of land was arable land, and horsemen rode over it when corn was growing there, the owner was held to be entitled to stop them. The Court said: "What is contrary to reason cannot be consonant to law", see Bell v. Warden (1740) Willes 202 at page 204. To be good, too, a custom must be certain. So, when all sorts of people came and played cricket on a field, it was held that thecustom was good if it applied only to the inhabitants of the village and their guests, but not if it applied to all the world at large, see Fitch v. Rawling (1795) 2 H. Bl. 394. In Edwards v. Jenkins (1896) I. Ch. 308 Mr. Justice Kekewich held that a custom for the inhabitants of three parishes to play on a field in one of these parishes was bad: but I do not think this is correct. So long as the locality is certain, that is enough. It is obvious that the custom may virtually deprive the owner of the land of any benefit of it: because he cannot use it in any way so as be hinder the villagers in their pastimes. But, nevertheless, the custom is good. It was so held whore villagers proved a custom to erect a maypole and dance around it "and otherwise enjoy any lawful and innocent recreation at any time of the year", see Hall v. Nottingham (1875) 1 Ex. L. 1. The result is that, in many village greens, no one knows who is the owner of the land. But everyone knows that the villagers have a right to play games on it. If anyone should disturb or hinder the exercise of that right, any one of the inhabitants can sue to enforce the right of all, stating that he does so on behalf of himself and all others. He need not go to the Attorney-General or any such person. He can sue himself, see Wyld v. Silver (1963) Ch. at page 257. He can stop any fences being erected, or any holes being dug, or pipes laid, if they would interfere unreasonably with the exercise by the villagers of their right. And such a right, once acquired by custom, cannot be lost by dis-use or abandonment. It can only be abolished or extinguished by Act of Parliament, see Hammerton v. Honey (1876) 24 W.R. 603 per Sir George Jessel, Master of the Rolls. And no statute can take away that right by a side-wind. It can only be done by express words, see Forbes v. Ecclesiastical Commissioners (1872) L.R. 15 Eq. 51.
REGISTRATION
In 1965 Parliament determined to have a Register made of all town or village greens. In order to he registered, a "town or village green" must come within the definition in section 22 of the Commons Registration Act, 1965. It defines it in three parts which I will call (a), (b) and (c). It says that: "Town or Village Green" means land (a) which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality, or (b) on which the inhabitants of any locality have a customary right to indulge in lawful sports and past-times or (c) on which the inhabitants of any locality have indulged in such sports and past-times as of right for not less than twenty years.
Class (a) concerns chiefly land which was set aside under the Inclosure Acts. Class (b) concerns the customary right known to the common law. Class (c) is a new thing which is not known to the common law, but which I will consider later.
The principal point in this case is whether a piece of land in Windsor called "Bachelor's Acre" can properly be registered under (b) or (c), i.e. as a customary right or as a twenty-year user.
Any person in the wide world can apply for registration: and any person, likewise, can object to it. If there is an objection, it is referred to a Commons Commissioner. He can confirm the registration, or modify it, or refuse it. Once he confirms it, the registration becomes final.
On 24th November 1967, Miss Doris Evelyn Mellor, a lady living in Windsor, applied to register the piece of land called Bachelor's Acre. She applied to the Berkshire County Council because they are the Registering Authority. She filled in a statutory declaration saying that she believed that the land "is a town or village green".The County Council then made an entry in the Register which says nothing except this:
"Register of Town or Village Green. 24th November, 1967.
The piece of land called Bachelor's Acre as marked on the register map. Registered pursuant to application by Doris Evelyn Mellor. (Registration Provisional)"
The Royal Borough of New Windsor lodged an objection to that registration. It was referred to the Chief Commons Commissioner. He confirmed the registration. The Borough appealed to the Judge, and from him to us. The appeal is given only on a point of law. They say that the Chief Commons Commissioner wont wrong in point of law, in that he drew the wrong inference from the facts. This means that we were taken by both sides through the history of this Piece of land. To this, therefore, I now turn.
3. THE HISTORY OF BACHELOR'S ACRE
The land is called Bachelor's Acre. But it is not the preserve of unmarried men. Nor is it just one acre. It is over two acres. It lies in the middle of the Royal Borough of Now Windsor, FROM time immemorial it has belonged to the Mayor, Bailiffs and Burgesses. There is proof positive that in mediaeval times it was the meadow whore young men practised with their bows and arrows. A pair of butts was set up there. They shot at the targets. The word "bachelor" was in those days used to describe" a young knight who followed the banner of another; a novice in arms". That is the first meaning in the Shorter Oxford Dictionary. Later on, when the long bow wont out of use, the young men practised with their muskets. That appears from a deed made in the year 1651. The Corporation of New Windsor let Bachelor's Acre to one Richard Hale for forty years foruse as pasture. In the deed they stipulated that he was to "make and set up one sufficient pair of butts for the inhabitants of the said town to shoot at" and that he was not to make any fence or enclosure there, nor to do 'any act or thing that shall or may be any let or hindrance of shooting or any other lawful exercise for recreation of the people'. A later lease 50 years later shows that, by that time the butts had then disappeared: but, nevertheless, the Corporation stipulated that "all persons" should have access to the ground "to use and exercise any lawful past-time for their recreation at all convenient times". After another fifty years there was a new lease to William Tyrrell of the Inner Temple, which contains the same stipulations. The words "the people" and "all persons" in those deeds clearly meant the inhabitants of New Windsor.
Such was the position down to the year 1789. But then it seems that Bachelor's Acre was much neglected. The occupiers of houses made drains into it, which flooded it. All and sundry threw dung and rubbish on to it. It became such an eyesore that in 1809 a group of the inhabitants banded together to improve it. They called themselves the Bachelors of Windsor. This did not mean that they were all unmarried men. It was only a name to denote a group of public spirited inhabitants, married and single, young and old, determined to assort their rights. They removed every encroachment. They filled up a large pond. They raised the ground and levelled it. They turned it afresh. Many lent their horses and waggons to fetch turf from different places. When they had finished their work, they had a great celebration there to mark the Jubilee of King George III. Queen Charlotte joined in. They roasted an ox and had plum pudding. They put up a big obelisk 17 feet high, which is still there. On...
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