Oxfordshire County Council v Oxford City Council

JurisdictionEngland & Wales
JudgeThe Honourable Mr Justice Lightman,Mr Justice Lightman
Judgment Date22 January 2004
Neutral Citation[2004] EWHC 12 (Ch)
Docket NumberCase No: HC 03CO2155
CourtChancery Division
Date22 January 2004

[2004] EWHC 12 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Before:

The Honourable Mr Justice Lightman

Case No: HC 03CO2155

Between:
Oxfordshire County Council
Claimant
and
(1) Oxford City Council
(2) Catherine Mary Robinson
Defendants

Mr George Laurence QC and Ms Ross Crail (instructed by P G Clark, Head of Legal Services and Solicitor to the Council, Oxfordshire County Council, County Hall, Oxford OX1 1ND) for the Claimant

Mr Charles George QC and Mr Philip Petchey (instructed by City Secretary and Solicitor, Oxford City Council, Department of Legal Services, PO Box 1191, The Town Hall, Blue Boar Street, Oxford OX1 4YS) for the First Defendant

Mr Douglas Edwards and Mr Jeremy Pike (instructed by Public Law Solicitors, King Edwards Chambers, 166B Alcester Road, Moseley, Birmingham, B13 8HS) for the Second Defendant

Hearing dates: 18 th -19 th and 21 st November and 9 th -10 th December 2003

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Honourable Mr Justice Lightman Mr Justice Lightman

Mr Justice Lightman:

INTRODUCTION

1

The Claimant Oxfordshire County Council ("the Claimant") is the registration authority for its area for the purposes of the Commons Registration Act 1965 ("the 1965 Act"). One of its duties as such is to receive and determine applications for the addition of land to the register of town and village greens maintained by it under that Act, in accordance with the provisions of the Commons Registration (New Land) Regulations 1969 ("the 1969 Regulations").

2

In June 2002, the Claimant received from the Second Defendant, Miss Robinson ("the Second Defendant"), an application for the registration as a town green of an area of land in North Oxford known as the Trap Grounds. The First Defendant, Oxford City Council ("the First Defendant"), which has owned the land since 1975 and wishes to use the land to provide needed housing, objected to the application. The Claimant caused a non-statutory public inquiry to be held by Mr Vivian Chapman ("Mr Chapman"), a senior barrister with wide experience in this field. By his report Mr Chapman advised that the Claimant should register part, and part only, of the Trap Grounds. The decision whether to register depends on the answers to a number of difficult legal questions on which the Claimant has received advice conflicting with that expressed by Mr Chapman. In these circumstances in these proceedings the Claimant seeks the guidance of the Court as to how those questions ought to be answered.

3

The questions relate to the construction and application of the 1965 Act and the 1969 Regulations and are of far-reaching importance for registration authorities. In the forefront of this judgment I must acknowledge my debt to counsel for all three parties and the size of the task of doing justice to their submissions in this judgment.

THE COMMON LAW AND STATUTORY BACKGROUND

4

At common law there can arise local rights exercisable over land which the owner of the land is legally obliged to respect. I should mention three such rights. The first is the right of local inhabitants to play at all kinds of lawful games, sports and pastimes at all seasonable times of the year: see Fitch v. Rawling (1795) 2 Hy.Bl.393. Dog walking and playing with children are in modern life the main recreational uses met with today. The second is the right to indulge at all times of the year in a single recreational activity e.g. dancing: see Abbott v. Weekly (1665) 1 Lev 176. The third is the right for recreation to promenade (or wander) over land and every part of it: see Abercromby v. Fermoy Town Commissioners [1900] IR 302. The land the subject of the first of these three rights is known as a town or village green ("a Green"). The rights may arise under statute (in which case for reasons which will subsequently appear the Green is known as a "class a" Green); the rights may arise by "immemorial custom" (in which case the Green is known as a "class b" Green); and by virtue of section 22 of the 1965 Act the rights (or the potential for rights) may arise from 20 years' exercise as of right (in which case the Green is known as a "class c" Green). (A valuable précis of the law on customary rights is to be found in Megarry & Wade, The Law of Real Property 6 th ed. p.1096). The question presently before the Claimant as registration authority is whether the Trap Grounds has become, so as to be registrable as, a class c Green.

5

Greens, together with common land and rights of common, are the subjects of the 1965 Act. The Long Title to the 1965 Act reads: "An Act to provide for the registration of common land and of town or village greens; to amend the law as to prescriptive claims to rights of common; and for purposes connected therewith". In R v. Oxfordshire CC ex parte Sunningwell PC ("Sunningwell") [2000] 1 AC 335 at 347 G-H, Lord Hoffmann provided an overview of the legislation, most particularly so far as it related to Greens:

"The main purpose of the Act of 1965 was to preserve and improve common land and town and village greens. It gave effect to the Report of the Royal Commission on Common Land 1955–1958 (1958) (Cmnd 462) which emphasised the public importance of such open spaces. Some commons and greens were in danger of being encroached upon by developers because of legal and factual uncertainties about their status. Others were well established as commons or greens, but there was uncertainty about who owned the soil …

The Act dealt with these problems by creating local registers of common land and town and village greens which recorded the rights, if any, of the commoners and the names of the owners of the land. If no one claimed ownership of a town or village green, it could be vested in the local authority. Regulations made under the Act prescribed time limits for registrations and objections and the determination of disputes by Commons Commissioners. In principle, the policy of the Act was to have a once-and-for-all nationwide inquiry into commons, common rights and town and village greens. When the process had been completed, the register was conclusive. By section [1(2)] no land capable of being registered under the Act was to be deemed to be common land or a town or village green unless so registered.

In the case of greens in classes a or b, this meant that unless they were registered within the prescribed time-limit, they could not be registered as such thereafter. (There is a question about whether non-registration of a class a green also extinguished the prior statutory rights of exercise and recreation, but that need not detain us now). But a class c green could come into existence upon the expiry of any period of 20 years' user. This might be after the original registration period had expired. Section 13 therefore provided for the amendment of the register in various situations including where '(b) any land becomes common land or a town or village green …'"

6

The 1965 Act does not confer on the registration authority an exclusive jurisdiction to determine whether land has become a Green. It merely provides, as an alternative to court proceedings, a new "consumer friendly" procedure to determine the question. The jurisdiction of the court to determine whether land is a Green and registrable as such is not ousted. (This is reflected in the accompanying notes to Form 30: see paragraph 15(ii) below). In court proceedings the issue may arise directly, e.g. on an application for a declaration or an injunction to restrain interference with the rights of local inhabitants, or indirectly e.g. where the existence of the Green is relied on as a defence to a claim in trespass. Where the interested parties are in dispute whether the existence of a Green should be determined by the court or the registration authority, the court must resolve that dispute. Most particularly if a party (and most particularly the landowner) for any good reason wants the issue to be tried by the court, the court may be expected to incline to accede to his request, but (where appropriate) on terms which provide the protection in respect of adverse orders for costs available to the other parties which would be available if the matter proceeded before the registration authority. The existence of the two alternative adjudicatory tribunals, namely the court and the registration authority, is relevant in particular when construing section 22 of the 1965 Act, a matter to which I shall shortly turn. I should mention for completeness that in a judgment giving permission to appeal in R(Whitmey) v. Commons Commissioners (29 th November 2003) Carnwath LJ gave permission to appeal to the Court of Appeal on the question whether the Commons Commissioners had jurisdiction to determine whether land had become a Green.

7

I turn now to look at the framework of the 1965 Act in greater detail. In regard to common land and rights of common the 1965 Act was merely the first stage in intended two stage legislation. On the second reading of the Bill subsequently enacted as the 1965 Act, the responsible Minister (Mr Willey) explained why two stage legislation was necessary:

"First of all we should create the machinery for establishing the facts by registration: that is the simple purpose of this Bill. Until the facts are authoritatively established and recorded it would be premature to frame the further legislation that will be required. What the Bill will do is to provide the foundation for the further commons legislation making provision for statutory schemes for the management of common land."

8

In 1990 in the case of Hampshire CC v. Milburn ("Milburn") [1991] 1 AC 325 at 341 Lord Templeman said:

"The Commons...

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