Oxfordshire County Council v Oxford City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath |
| Judgment Date | 24 February 2005 |
| Neutral Citation | [2005] EWCA Civ 175 |
| Docket Number | Case Nos: A3/2004/1341 A3/2004/1369 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 February 2005 |
[2005] EWCA Civ 175
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
MR JUSTICE LIGHTMAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Carnwath and
Mr Justice Blackburne
Case Nos: A3/2004/1341
A3/2004/1337
A3/2004/1369
George Laurence QC and Ross Crail (instructed by The Solicitor to Oxfordshire County Council) for Oxfordshire County Council
Charles George QC and Philip Petchey (instructed by City Secretary and Solicitor, Oxford City Council) for Oxford City Council
Douglas Edwards and Jeremy Pike instructed by Public Law Solicitors King Edward Chambers Birmingham for Catherine Mary Robinson
Background
The traditional village green needs no introduction:
"'Village green'—the very words are evocative of great age and tranquillity, of turf as rich in hue as it is trim in a setting untouched by time" 1
"…the traditional village green with its memories of maypole dancing, cricket and warm beer." 2
More prosaically, Gadsden describes the popular perception:
"In popular language, the village green… is a small area of open land in the middle of a village where the inhabitants can rest or play, the children run round and, archetypally, the village cricket team holds its matches." 3
The story of the "Trap Grounds" is rather different. According to the Inspector's 4 report, the name has been traced back to 1790, but its origin is unknown:
"It may derive from the use of the land for trapping birds or eels, for parking horse drawn traps attending the annual horse races in Port Meadow which took place until 1880, or for dumping night soil from college privies or 'traps'"
The land consists of 9 acres of undeveloped land in North Oxford, between the railway to the west and the towpath of the Oxford Canal to the east. Beyond the canal to the east lies the residential area forming the parish of St Margaret's. For a long time the land was owned by St John's College who used part as a refuse tip. In 1975 it was sold to the Oxford City Council, who wish to use it for housing development.
As for its physical features, about one third on the eastern side (referred to as "the reed beds") is permanently under water, and inaccessible to ordinary walkers. The remainder consists of trees and a scrubby undergrowth ("the scrubland"). The land is approached by a bridge over the canal along a track known as Frog Lane, which leads along the northern edge of the reed beds and gives access to a circular path around the scrubland, off which there are numerous small paths through the undergrowth. The inspector observed that the scrubland "bore the marks of its former use as a dump for builders' rubble", but that since the 1970s "the land was left neglected to grow vegetation on and around the rubble".
He found evidence of use by local people for "dog-walking, children's play and general informal recreation". He estimated that a total of about 25% of the scrubland is "reasonably accessible to the hardy walker". Understandably most of the activity seems to have been on or around the circular path. Mr Statham's evidence is an example:
"Between 1989 and 2001, he had dogs and walked them on the Trap Grounds several times a week. He usually did a circular walk around the scrubland, going off the path to retrieve his dogs, to pick blackberries in season and to admire some striking giant hogweed in the south western sector of the scrubland in the spring and summer…"
The inspector described the land as:
"…a typical case of institutionally owned land on the urban fringe which is neglected by the landowner because it has long term development plans and which attracts use by local people for informal recreation."
The application
Miss Robinson is a local resident. In June 2002 she submitted an application to register the Trap Grounds as a "town or village green" under section 13 of the Commons Registration Act 1965. She claimed that it had become a town or village green by 1 st August 1990, by virtue of the fact that:
"…local residents had used it for lawful pastimes as of right (without obstruction, permission, stealth or force) for an unbroken period of 20 years. They continue to do so until the present day".
The application form required her to state the "locality", which she gave as "the Parish of St Margaret, Central North Oxford". She attached a plan showing the Trap Grounds edged in green and the parish in red. Although she filled in the form herself she was helped by a publication of the Open Spaces Society," Getting Greens Registered". She later attempted to amend the application by excluding certain areas.
The City Council as landowners objected to the application. The County Council, as registration authority, had the task of deciding whether to amend the register. They appointed Mr Vivian Chapman, a specialist barrister, to hold a non-statutory inquiry. He advised that the register should be amended to include the Trap Grounds as a town or village green, but excluding the reed beds (because they were inaccessible for ordinary recreation) and the track known as Frog Lane (because it had been used for access rather than recreation). The County Council received conflicting advice on certain points from Mr Laurence QC, another specialist in this field. It became apparent that the resolution of this dispute raised some fundamental questions about the interpretation and practical application of the 1965 Act on which a determinative ruling from the courts would be required. Accordingly the County Council itself initiated the present proceedings with a view to obtaining rulings on the questions which it considered material. The proceedings were commenced by the County Council by claim form dated 11 th June 2003, naming the City Council and Miss Robinson as defendants.
Meanwhile, in the early part of 2003, the City Council had put up on the Trap Grounds notices in the following terms:
"Oxford City Council
Trap grounds and reed beds
Private property
Access prohibited
Except with the express consent
Of Oxford City Council"
The purpose of this was to put an end to the period of qualifying use, by ensuring that it could no longer be "as of right".
The principal purpose of the 1965 Act, as appears from the long title, was
"…to provide for the registration of common land and of town and village greens…"
Section 1(1) required the registration of (a) land in England and Wales which was "common land or a town or village green"; (b) rights of common over such land; and (c) those claiming rights of ownership over such land, or becoming owners by virtue of the Act. Certain terms were defined by section 22, which applied "in this Act, except where the context otherwise requires". "Common land" was defined as land subject to common rights, or "waste land of a manor" not subject to such rights, but excluding any "town or village green". The definition of "town or village green" (adopting the accepted, but non-statutory, division into three classes) —
"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 pastimes or [c] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years."
Registration authorities were established with the duty to "maintain" the registers, and to make them open to inspection by the public at all reasonable times (s 3). The Act provided machinery for "provisional registrations" (s 4), for objections (s 5), and for reference of disputed claims to the Commons Commissioner (an office specially established by the Act for this purpose) (s 6). In the case of town or village greens, if no other ownership claim was established, the land was to be registered in the name of the relevant district council (s 8(3)). Registrations had to be made in accordance with "Model Entries" provided by the Commons Registration (General) Regulations 1966. It is to be noted that the register had to record simply the status of the "land" as a town or village green, not the particular class of the definition under which it had acquired registrable status. 5
By section 1(2), after the end of a period prescribed by the Minister (in the event, 31 st July 1970), no land capable of being registered under the Act "shall be deemed to be common land or a town or village green unless it is so registered"; and no rights of common "shall be exercisable" unless registered "under this Act or the Land Registration Acts". Conversely, section 10 provided:
"The registration as a common land or as a town or village green, or of any rights of common over such land, shall be conclusive evidence of the matters registered, as at the date of registration, except where the registration is provisional only."
It should be noted at this point that, in spite of previous judicial disagreements, the effect of section 1(2) is no longer in issue. The question was whether or not it had the effect that any rights of local inhabitants which were registrable but unregistered by 31 st July 1970 were extinguished. Lightman J decided that they were extinguished. He noted also that this view was consistent with the Ministerial statements at the time. 6 I expressed the same view of the section at first instance in Steed:
"… whatever rights may have been thought to exist by virtue...
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