Oxfordshire County Council v Oxford City Council & Anor

Registration of a town or village green records and confirms a status acquired through qualifying use; it does not itself create that status. A class c green carries the ordinary rights and statutory protections attaching to a green, whether registered or not. Under the original definition, any qualifying period of 20 years before the application may suffice. The amended definition applies only where the land had not already become a green before the amendment took effect, and requires continuing qualifying use until the application or proceedings. A registration authority may determine the application on a materially different date or register a lesser area, provided procedural fairness is preserved and no third party is prejudiced. Accessibility, recreational use of tracks and possible public rights of way must be assessed by a common-sense inquiry focused on how the use would appear to a reasonable landowner.

Oxfordshire County Council, the registration authority, sought the court’s guidance on an application by Catherine Mary Robinson to register the Trap Grounds in North Oxford as a class c town or village green. Oxford City Council, the owner, objected because it wished to develop the land for housing.

A non-statutory public inquiry recommended registration of the scrubland but not the reed beds. The issues included the legal effect of registration and non-registration, the relevant 20-year period, the effect of the amended statutory definition, the authority to depart from the application’s stated date or area, the significance of inaccessible land, and the relevance of public rights of way.

1. Legal effect of a green. Land becomes a class c green when it satisfies the statutory definition through qualifying use. Registration merely records and conclusively confirms the pre-existing status. The existence of a green, whether registered or unregistered, gives local inhabitants the rights ordinarily incident to that status, including lawful sports and pastimes. The court preferred the reasoning of Pill LJ in R v Suffolk CC ex parte Steed (1996) 75 P&CR 102 to the contrary observations in New Windsor Corporation v Mellor [1975] 1 Ch 380.
2. Land registrable but unregistered by 31 July 1970 was, under section 1(2) of the Commons Registration Act 1965, no longer to be adjudged a green. The existing rights were extinguished and a fresh period of qualifying use was required.
3. The 19th-century statutory protections applied to greens however and whenever created, including class c greens. Sections 12 of the Inclosure Act 1857 and 29 of the Commons Act 1876 therefore applied to a class c green.
4. Under the original section 22 definition, the qualifying 20 years did not have to end immediately before the application. Any 20-year period before the application could establish that the land had become a green, subject to the transitional restriction arising from section 1(2). The court declined to follow the contrary obiter approach in Ministry of Defence v Wiltshire CC [1995] 4 All ER 931, and the approaches in R v Norfolk CC ex parte Perry (1996) 74 P&CR 1 and Caerphilly County Borough Council v Gwinnutt 16 January 2002.
5. The amended definition applied only where the land had not already become a green under the original definition before 30 January 2001. It added the requirement that qualifying use continue until the application or commencement of proceedings. It did not retrospectively remove an already-acquired green status.
6. The registration authority could determine the application by reference to a different date from that stated in Form 30, provided the interested parties were notified and given a fair opportunity to respond. The stated date was a guide, not an immutable jurisdictional condition.
7. The authority had no general implied power to permit the applicant to amend the application. Nevertheless, it could register a lesser area than that shown, provided the lesser area was within the substance of the application and registration caused no injustice, particularly to the landowner. The scrubland could therefore be registered.
8. There was no mathematical accessibility test. The authority had to decide whether, on a common-sense view, the whole area had been used for the required purposes during the relevant period. If a substantial part had not been so used, the authority could register the remainder if it independently qualified.
9. Use of a defined track had to be assessed by reference to how it would appear to a reasonable landowner. Walking, dog-walking, jogging or pushing a pram might be recreational use of a green, but where the use was ambiguous the inference normally favoured the less onerous public right of way. Existing or later-acquired highway rights did not automatically exclude qualifying green use.

The guidance was given without finally determining the factual qualification of the Trap Grounds. The registration authority was to reconsider the application in light of the judgment, subject to statutory rectification and judicial review.

First-instance guidance judgment. The judgment does not state a subsequent appellate decision.