R v Oxfordshire County Council, Ex parte Sunningwell Parish Council

Use of land is “as of right” when it is open, peaceable and without the landowner’s permission: nec vi, nec clam, nec precario. The users’ subjective beliefs about whether a legal right exists, or who possesses it, are irrelevant.

Under section 22(1) of the Commons Registration Act 1965, “sports and pastimes” forms a composite class. Informal modern recreation, including dog walking and playing with children, can qualify. Predominant recreational use by inhabitants of the locality is sufficient where use by outsiders is slight.

A landowner’s tolerance or neighbourliness does not, without permission or licence, prevent use from being as of right. A class c village green arises from the prescribed user itself; no grant or dedication need be inferred.

The Oxford Diocesan Board of Finance owned a ten-acre glebe near Sunningwell. Local inhabitants had used it for walking, children’s games, kite flying, blackberry picking, fishing and tobogganing. After planning permission was obtained for two houses, the parish council applied to register the land as a village green under section 22(1) of the Commons Registration Act 1965.

Following a non-statutory inquiry, Oxfordshire County Council accepted the inspector’s findings but refused registration. Applying R v Suffolk County Council, Ex parte Steed (1996) 75 P. & C.R. 102, the inspector considered that the witnesses had to believe that the recreational right belonged specifically to village inhabitants.

Buxton J refused leave to seek judicial review. The Court of Appeal granted leave but dismissed the substantive application because it was bound by Steed, while indicating that the decision might be wrong. The central issue before the House was whether “as of right” required proof of the users’ subjective belief in a local legal right.

1. Appeal allowed unanimously. Lord Hoffmann delivered the leading speech. Lord Browne-Wilkinson, Lord Steyn, Lord Hobhouse of Woodborough and Lord Millett agreed with his reasons and proposed order. Oxfordshire County Council was directed to register the glebe as a village green.

2. Per Lord Hoffmann, “as of right” in section 22(1) of the Commons Registration Act 1965 bears the established prescriptive meaning nec vi, nec clam, nec precario: use without force, secrecy or the owner’s permission. The expression descended through the Prescription Act 1832 and the Rights of Way Act 1932. Prescription depends upon the outward character of the user and the landowner’s acquiescence, not the users’ subjective states of mind.

3. A person’s use cannot be discounted merely because that person was indifferent about the existence of a right or privately knew that none existed. Nor must users believe that the right belongs exclusively to inhabitants of the locality. The subjective-belief requirement adopted in R v Suffolk County Council, Ex parte Steed (1996) 75 P. & C.R. 102 was an unauthorised addition to the established meaning of “as of right”. That case was wrongly decided.

4. “Sports and pastimes” is a single composite class. An activity need only be properly described as either a sport or a pastime. The relevant activities are not confined to ancient or communal recreations. Modern informal recreation, including dog walking and playing with children, can qualify, although use that is trivial or sporadic may lack the outward appearance of use as of right. The inspector had found abundant qualifying recreational use.

5. Section 22(1) requires use by inhabitants of a locality but does not state that only inhabitants may use the land. On the accepted findings, recreational use of the glebe was predominantly by villagers and outside recreational use was slight. That was sufficient, even assuming that the user had to resemble user capable of establishing a custom.

6. Mere tolerance by the rectors, the Board or agricultural occupiers was not inconsistent with use as of right. Tolerance may once have prevented an inference of an actual grant or dedication, but a class c green requires no such inference. Once the statutory conditions, including 20 years’ qualifying use, are met, the user itself is sufficient.

1. House of Lords: Allowed the parish council’s appeal unanimously and directed Oxfordshire County Council to register the glebe as a village green.

2. Court of Appeal: Granted leave to move for judicial review but dismissed the substantive application because it was bound by R v Suffolk County Council, Ex parte Steed (1996) 75 P. & C.R. 102. It granted leave to appeal to the House of Lords.

3. High Court: Buxton J refused leave to apply for judicial review.