R (Whitmey) v Commons Commissioners

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE CARNWATH,Lady Justice Arden,Lord Justice Waller,Mr Justice Pumfrey
Judgment Date21 Jul 2004
Neutral Citation[2003] EWCA Civ 1837,[2004] EWCA Civ 951
Docket NumberC1/2003/1865,Case No: C1/2003/1865 QBACF

[2003] EWCA Civ 1837







Royal Courts of Justice

The Strand

London, WC2A 2LL


Lord Justice Carnwath


The Queen on the Application of Whitmey
Commons Commissioners

The Claimant appeared in person

The Defendant did not attend and was not represented

(Approved by the Court)

Friday, 28 November 2003


This is an application for permission to bring judicial review proceedings following the refusal of permission by Richards J on 7 August. The applicant, Mr Whitmey, is a director/charity trustee of the Hereford Diocesan Board of Finance. They are owners of land which was subject to an application to register it as a village green. He has no direct interest himself, but has become something of an expert in this subject and, as he says, has acted as consultant to other bodies. As I understand it there is no dispute about his interest to bring this judicial review application.


The Commons Commissioners are the principal defendants. There are also a number of interested parties: The Department of the Environment FOOD and Rural Affairs ("DEFRA"); Shropshire County Council, who are the Registration Authority for Commons and Village Greens for that area; there is Mr Stephens Tunnicliffe, who made the original application for registration; there is the Diocese and Board of Finance, who are the owners of the land; a Mr Upton, who is a tenant, and the Church Commissioners.


The background is somewhat complex, but I have indicated that I think this is an appropriate case for permission and therefore I will deal with it relatively shortly.


The Commons Registration Act 1965 provided for the registration of commons and village greens, following a Royal Commission Report under Professor Jennings which drew attention to the great uncertainties about the nature, existence and effect of village greens and commons.


There was a carefully defined statutory procedure for dealing with that. There was provision for applications and objections to be made. The applications had to be made within a defined time-limit from a date specified by the Secretary of State. Unresolved disputes had to be referred to the Commons Commissioners (see section 5(6)), the Commissioners being a specially constituted body with the necessary expertise to deal with these matters; then there was permission to appeal from the Commons Commissioners to the High Court on points of law.


It is quite clear, looking at the Act, that the main purpose of the exercise was to register the existing commons and village greens. I summarised the history of the matter in my judgment in R v Southwark County Council ex parte Steed 70 P&CR 487 at 489 to 494.


The original intention was that there would be a second Act which would deal with the substantive effects of registration and provide for powers of regulation and so on. That was often promised but never came, as I explained in that passage. One of the problems which that caused related to village greens. At common law a village green is one on which the inhabitants of a town or village have enjoyed rights of recreation by "immemorial custom" (see Halsbury's Laws Vol 6 para 525). By definition, rights established by immemorial custom could not come into effect after 1965 if they had not existed before.


However, the Act included in the definition of village greens a new category, which was that of land on which the inhabitants of any locality who indulge in sports and pastimes as of right for not less than 20 years. One suspects that the reason for doing it in that way was to assist the process of registration by making it easier to prove the existence of rights. As I noted in Steed, it is of course well-established that 20 years' open use is normally sufficient to establish a presumption of commencement beyond legal memory in the absence of any evidence of more modern origin. But, as I also said, what was novel in the Act was to treat such use as conclusive in the context of customer rights (see Steed page 491).


That problem was recognised by a number of cases. I quoted Oliver J in Re Turnworth Down and Lord Denning in New Windsor Corporative v Mellor, both of whom recognised the fact that the establishment and registration of a village green complying with the 1965 Act definition did not, on its face, give one any guidance as to what rights, if any, attached to it. I said at page 493 this:

"As things stand today —20 years on from Lord Denning's observations in the New Windsor case, and 30 years from the passing of the Act, nothing more has been done to improve things or to advance the promised second-stage legislation. The result remains highly unsatisfactory, even having regard only to village greens. Whatever the strict position in law, there is no doubt that registration as a village green, or even an application for registration, does have significant practical effects. As this case shows, any plans that the owner might have had for developing the land, or selling it, are likely to be frustrated. On the other hand, the public will assume, rightly or wrongly, that something which is registered formally as a village green carries with it the rights which a village green usually has. If they seek to exercise those rights, they will be understandably surprised if a court treats them as trespassers.

Unless the intention was to recognise that a "village green" was to be regarded as a village green for all relevant purposes of the law, the legislative thinking is hard to fathom. However, without making an interpretative leap, of the kind suggested by Lord Denning [in the New Windsor case] it is hard to see how this result can be achieved within the law as it stands."

That was said in 1995. In the Court of Appeal in that case in 75 P & CR 102, 112–5, Pill LJ was prepared in principle to make the interpretative leap and to say that a village green, as defined by the 1965 Act, was intended to have the same status and legal effects as the common law village green. However, he recognised that a decision on that point was not necessary for the particular case in front of him, and therefore it is not a binding authority.


In the House of Lords, in R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335, the House had to consider this area of the law with regard to the question of what was meant by "as of right" in relation to a 20-year use. Lord Hoffmann noted at page 347B to C that the Act was unclear about what rights, if any, registration could confer upon the villagers. He seems to have assumed that it would have the effect of preventing development, under section 29 of the Commons Act 1876, which applies to "a village green". However, again that was not an issue in the case, and it seems to involve the assumption that the definition in the 1965 Act is somehow to be read back into the Commons Act 1876, which does not contain such a definition.


There is no doubt that following Sunningwell there have been a growth in applications to register what may be called "new village greens"; that is, village greens which were not established by immemorial custom or by long use before the 1965 Act, but where the sole allegation is that there has been 20 years' use up to the date of the application to register.


Going back to the 1965 Act, the provision for amendment of registers in section 13 recognises that land may "become common land or a town or village green". The section says that regulations are to provide for the amendment of registers where that happens. However the Act does not set out any procedure for dealing with that, other than to give the High Court power to order an amendment if it appears to the court that the amendment made by the registration authority is in error (see section 14(b).


The relevant regulations are the Commons Registration (New Land Regulations) 1969. Regulation 3 provides that where, after January 1970, land becomes common land or a town or village green an application may be made for its registration. There is then a procedure for the registration authority to deal with it, to publish it and to consider objections. That procedure, however, envisages that the matter will be dealt with purely by the registration authority. There is no specific provision there, or in the Act, for disputes to be resolved by the Commons Commissioner or indeed any other similar tribunal or court.


The thinking at the time is to some extent clarified by the notes, which accompany the forms included in a schedule to the regulations. There are notes explaining how land can become common land and how it can become a village green. The obvious categories are where an Act of Parliament requires such land to be substituted for other land which is taken for public development of some kind. But there is also a reference to the case where rights are required by prescription. In the case of common land, there is a reference to the supporting documents which are necessary. It is said there that, where land is stated to have become common land by acquisition by prescription, if there is a declaration by a court of competent jurisdiction to that effect, a copy must be supplied. Then the note says this:

"In the absence of such a declaration, a claim based solely on the Prescription Act 1832(a) cannot be admitted, and a claim based on prescription otherwise than under that Act is unlikely to be admitted if any objection is received by the registration authority."

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