Oxfordshire County Council and Others, Ex parte Sunningwell Parish Council, R v.

The House of Lords allowed the appeal and directed registration of the Sunningwell glebe as a town or village green under section 22(1) of the Commons Registration Act 1965 (class c). The court held that the statutory phrase "as of right" should be read in the traditional prescriptive sense—nec vi, nec clam, nec precario—and does not require proof of a subjective belief by each user that they were exercising a legal right as an inhabitant of the locality. The court also held that informal modern recreational activities (for example, dog‑walking, tobogganing, family games) fall within "sports and pastimes" and that predominant use by inhabitants is sufficient, even if some non‑residents also used the land. Toleration by landowners or tenants does not necessarily prevent user being "as of right" for the purposes of class c registration.

The appeal concerned an application by Sunningwell Parish Council to Oxfordshire County Council to register about 10 acres of rectory glebe near the village church as a town or village green under the Commons Registration Act 1965. The land had been used by local people for walking, dog‑walking, family games, tobogganing and similar informal recreation. The Diocesan Board of Finance (successor to the rector) had obtained planning permission for housing on part of the glebe and objected to registration.

The registration authority held a non‑statutory inquiry and, following the inspector's report, refused the application on the ground that the user had not been "as of right" because witnesses did not depose to a belief that the right was confined to inhabitants of the village. The parish council sought judicial review; leave was refused by Buxton J.; the Court of Appeal (Lord Woolf M.R., Waller and Robert Walker L.JJ.) dismissed the substantive application but granted leave to appeal to the House of Lords, noting possible error in the relevant Court of Appeal authority (Reg v Suffolk County Council, Ex parte Steed).

The principal legal issue before the House of Lords was the meaning of "as of right" in section 22(1) (class c). The Law Lords reviewed historical authorities on prescription, the Prescription Act 1832, the Rights of Way Act 1932 and later case law, concluding that "as of right" carries the traditional prescriptive quality of nec vi, nec clam, nec precario and does not import an additional requirement of subjective belief that users regarded their use as a legal right limited to inhabitants. The court further considered subsidiary issues raised by the objector (whether the activities amounted to "sports and pastimes", whether use by non‑residents was fatal, and whether toleration by successive rectors or tenants negatived "as of right") and rejected those arguments on the facts: informal recreation sufficed as "sports and pastimes"; predominant use by inhabitants was adequate; and toleration did not necessarily preclude user being "as of right" under class c. The House of Lords therefore allowed the appeal and directed registration of the glebe as a village green.

Appeal allowed. The House of Lords held that "as of right" in section 22(1)(c) of the Commons Registration Act 1965 should be understood in the traditional prescriptive sense (nec vi, nec clam, nec precario) and does not require proof that users subjectively believed they had a legal right as inhabitants. Informal modern recreational uses fall within "sports and pastimes", predominant use by inhabitants is sufficient, and toleration by owners or tenants does not automatically defeat class c registration. Accordingly the County Council was directed to register the glebe as a village green.

Buxton J. refused leave for judicial review. The Court of Appeal (Lord Woolf M.R., Waller and Robert Walker L.JJ.) dismissed the substantive judicial review application but granted leave to move for judicial review and leave to appeal to the House of Lords; the Court of Appeal had followed Reg. v. Suffolk County Council, Ex parte Steed (1996) 75 P. & C.R. 102. The House of Lords allowed the appeal and directed registration.