Oxfordshire County Council v Oxford City Council & Anor

The Court of Appeal answered a series of questions about registration of "class c" town or village greens under the Commons Registration Act 1965 and the effect of the Countryside and Rights of Way Act 2000 amendment. The court held that registration as a modern class c green does not of itself create or imply enforceable private rights in favour of local inhabitants (section 10 and the definition in section 22 were examined), but that registration is conclusive evidence that the land is a "town or village green" for the purposes of earlier statutes such as section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876.

On the 2000 amendment the court ruled that the words "continue to do so" require user to continue to the date of registration and that applications made on or after 30 January 2001 must be considered under the amended definition. The registration authority has a discretion to permit sensible amendments to an application (including changing the stated date or excluding parts of the land) and to register part only of the land described, and factual questions about accessibility and tracks are for the authority to evaluate according to how a reasonable landowner would have perceived the user.

Background and procedural posture: The Trap Grounds is a nine acre area of undeveloped land in North Oxford. Miss Catherine Mary Robinson applied in June 2002 to register the Trap Grounds as a town or village green under section 13 of the Commons Registration Act 1965, claiming 20 years' user ending 1 August 1990. The owner, Oxford City Council, objected. Oxfordshire County Council (the registration authority) held a non-statutory inquiry and received conflicting legal advice; the County Council commenced proceedings seeking declaratory rulings on ten issues of law relating to class c greens. The case was heard in the Chancery Division (Lightman J [2004] EWHC 12 (Ch)) and appealed to the Court of Appeal.

• Nature of relief sought: Rulings on the legal effect of registration under the 1965 Act (including whether registration creates rights), the application of 19th century statutes to registered modern greens, the effect of the 2000 amendment to the class c definition, whether qualifying use must continue to a particular date, and procedural questions about amendment of applications and evaluation of evidence.
• Issues the court framed:
  • Whether registration of class c land confers rights to indulge in lawful sports and pastimes;
  • Whether registration brings land within the scope of the Inclosure Act 1857 s.12 and Commons Act 1876 s.29;
  • Meaning of "continue to do so" in the 2000 amendment and whether post-30 January 2001 applications are governed by the amendment;
  • Whether an application can rely on a free-standing historic 20-year period, or must relate to a date immediately preceding the application;
  • Whether and how applications may be amended by applicants or treated as amended by the registration authority;
  • How to evaluate evidence of use and the relevance of potential public rights of way.

Court’s reasoning and conclusions (concise): The court analysed the 1965 Act in its historical context, reviewed the distinction between historic customary (class b) greens and modern class c greens, and considered authorities including R v Oxfordshire CC ex p Sunningwell Parish Council and prior decisions about the effect of registration. It emphasised that the definition provisions do not themselves supply clear statutory words creating proprietary rights, so registration of a modern class c green does not, by implication, create enforceable recreational rights for inhabitants. However, registration is conclusive evidence that the land is a town or village green and therefore can bring the land within the scope of older statutes that treat interference with a town or village green as a public nuisance. The court interpreted the 2000 amendment as requiring continuity of user to the date of registration and held that applications made on or after 30 January 2001 must be assessed under the amended definition. The court endorsed a pragmatic, common-sense approach to amendment of applications and to factual evaluation by the registration authority, leaving issues of accessibility and the effect of possible rights of way to the authority’s fact-finding, evaluated by reference to how a reasonable landowner would have interpreted the user.

Wider context: The court noted the continuing uncertainty and practical difficulties around modern class c greens, observed Parliament’s later endorsement of modern class c greens in 2000 and the absence of detailed remedial legislation, and urged that further legislative reform is desirable to provide clearer management and protection mechanisms.

Appeal allowed in part. The Court of Appeal held that registration of a modern class c green does not itself create or imply enforceable rights of local inhabitants to use the land, but that registration is conclusive evidence that the land is a town or village green for the purposes of older statutory nuisance provisions (Inclosure Act 1857 s.12 and Commons Act 1876 s.29). The court also ruled that the 2000 amendment requires user to continue to the date of registration, that applications made on or after 30 January 2001 are governed by the amended definition, and that registration authorities have discretion to permit sensible amendments to applications and to register part only of the land. Factual questions about accessibility and potential rights of way remain for the authority to decide by reference to how a reasonable landowner would have perceived the user.

Appeal from the Chancery Division (Lightman J) [2004] EWHC 12 (Ch); this Court of Appeal judgment: [2005] EWCA Civ 175.