R v Suffolk County Council and Another

Friday, 5th May 1995

Introduction

The People's Park (as it is described on the Ordnance Survey maps) is an area of about 15.8 acres of uncultivated land on the edge of Sudbury in Suffolk. It adjoins Waldingfield Road. From the map, there appears to be residential development on three sides. It was acquired in 1987, at a price of £850,000, by the Secretary of State for Health for the purposes of a hospital to be constructed by the Regional Health Authority. Some £500,000 has been spent in preliminary work.

In 1991 an application was made by a Mr. Ramsey to the Suffolk County Council for registration of the land as a village green under the Commons Registration Act 1965. That was withdrawn, but replaced by an application on 27th February 1992 by the present applicants (in their own name and that of the "People's Park Protest Group"). Following an objection on behalf of the Secretary of State, the application was rejected by the Council's planning committee on 3rd September 1992. The applicants now seek judicial review of that decision.

The deficiencies of the 1965 commons legislation have been often remarked on by the Courts. So far, those criticisms seem to have gone unheeded. The present case brings them in to sharp focus, since the potential loss to the public —whatever the outcome —is substantial. Major public investment has been frozen —for at least four years if the Department's submissions are correct, and perhaps permanently if they are not.

In these circumstances, it is useful to spend a moment recalling some of those criticisms, and the background to them. It may be that this case will help to underline the continuing need to address the problems arising from this legislative scheme, which was half-begun 30 years ago, but never completed.

The 1965 Act and village greens

(In this summary, I have drawn on material beyond that referred to at the hearing, including Parliamentary reports. I have also had access to a useful publication by the Open Spaces Society, "Getting Greens Registered" (1995). Since this survey is by way of background only and does not directly impinge on the issues before me, I have not thought it necessary to invite further submissions. For the same reason, the survey is not necessarily comprehensive or definitive.)

The Royal Commission on Common Land was established in 1955 under the chairmanship of Sir Ivor Jennings Q.C. Its task, as defined by the Royal Warrant, was -

"…to recommend what changes, if any are desirable in the law relating to common land in order to promote the benefit of those holding manorial and common rights, the enjoyment of the public, or, where at present little or no use is made of such land, its use for some other desirable purpose."

They reported in 1958. They made recommendations for the registration of common land and of common rights over such land, and also for the management and improvement of such land and for a general right of public access to it. They also recommended that similar arrangements should be made for town and village greens. As they said -

"There are probably very few villagers who will not know what they mean by their 'green'; equally their assumption that it is 'their' green is seldom likely to be questioned. But if it is challenged, the burden of proof would in all probability put them to considerable difficulty and expense." (para.369)

For this purpose, they proposed a three part definition of "town or village green", as follows -

"Any place which has been allotted for the exercise or recreation of the inhabitants of a parish or defined locality under the terms of any local Act or inclosure award, any place in which such inhabitants have a customary right to indulge in lawful sports and pastimes, and in a rural parish any unenclosed open space which is wholly or mainly surrounded by houses or their curtilages and which has been continuously and openly used by the inhabitants for all or any such purposes during a period of at least twenty years without protest or permission from the owner of the fee simple or the lord of the manor." (para.403)

The Commons Registration Act 1965 was designed to put in place the first part of the Commission's recommendations. As explained by the responsible Minister (Mr. Willey) on the second reading of the Bill -

"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 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 further commons legislation making provision for statutory schemes for the management of common land." (Hansard H.C. 28th April 1965 col.456)

The statutory definition of "town or village green" did not follow precisely that proposed by the Commission, although a three part format was retained. The third part was broadened. Section 22 of the Act defined a town or village green as:

"[i] Land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality,

[ii] Or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes,

[iii] Or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years."

(I have numbered the three parts for convenience. It does not appear in the Act itself.)

The first two parts of this definition pose no particular conceptual difficulty. Part [ii] Corresponds to the normal legal understanding of a town or village green, as one whose status is derived from custom:-

"…the essential characteristic of a town or village green is that by immemorial custom the inhabitants of a town or village green should have acquired the right of playing lawful games thereon and enjoying it for the purposes of recreation." (Halsbury's Laws Vol.6 para.525).

The references to "exercise or recreation" and to "lawful sports and pastimes" echo the opening of the classic judgment of Sir George Jessel M.R. In Hammerton v Honey (1876) 24 WR 603:

"There are certain rights which may be claimed by custom, as distinct from prescription. What is called a right of recreation and amusement, of air and exercise, or the playing of all manner of lawful games and pastimes, is a right in the nature of an easement which may well be claimed by custom."

He goes on to explain the essence of "custom", which is that it is -

"…local law because it is the law of a particular place as distinguished from the general common law…"

Part [i] of the definition, which would include recreational allotments made under inclosure awards (see Inclosure Act 1845 s.15; Halsbury ibid. Para. 526) or derived from other statutory sources, is also readily explicable in accordance with established law.

Part [iii], however, which is of direct relevance in the present case, presents more difficulty, since it does not correspond to any status previously known to the law. As far as I can ascertain, the only explanation given to Parliament was that the twenty year period had been taken

to "follow precedent as in the Rights of Way Act, 1932…" (which dealt with the presumed dedication of highways); and that the definition was thought sufficient "to deal…with the normal types of town and village green" (Hansard HC 27th July 1965 col.420). Quite apart from such statutes as that mentioned (now Highways Act 1980 s.31), the common law has long accepted twenty years open use "as of right" as establishing, in the absence of evidence of a more modern origin, a presumption of commencement "beyond legal memory" (see e.g. Brocklebank v Thompson [1903] Ch 344). What is novel, at least in the context of customary rights, is treating such use as conclusive, whether or not there is evidence of a modern origin. Unfortunately, the Act does not indicate what legal consequences, if any, are to follow registration of such a "20 year green".

The Act received Royal Assent on 5th August 1965. The long title was:

"An Act for the registration of common land and of town or village greens; to amend the law as to prescriptive rights to rights of common; and for purposes connected therewith."

This reflected the stated intention, that is (apart from certain limited amendments relating to prescription) to record the existing position, rather than make changes to the substantive law.

Thereafter, the machinery was duly set in place for applications for registration, for objections, and for their determination by Commons Commissioners. The final date for applications for registrations was fixed at 30th July 1970; thereafter (by s.1(2) —see below) land not registered as a common or village green was deemed no longer to have that status. There was, however, no indication as to when the second stage of the legislation, dealing with management and access and other substantive matters, would appear.

Reported cases relating to village greens have not been frequent. In 1978, in a case on registration of common land ( Re...