Oxfordshire County Council v Oxford City Council & Anor

Registration of land as a modern class c town or village green does not, by itself, create rights for local inhabitants to use the land for sports or pastimes. Historic customary rights remain governed by their original source.

Registration is nevertheless conclusive that the land is a town or village green for the purposes of the Inclosure Act 1857 and the Commons Act 1876. For applications under the amended Commons Registration Act 1965, qualifying use must continue until registration. Registration authorities may permit reasonable amendments and may register only part of the land. Questions concerning accessibility and the character of use are matters of fact and degree.

Oxford City Council owned the Trap Grounds, an area of undeveloped land in North Oxford used by local residents for informal recreation. Catherine Robinson applied under section 13 of the Commons Registration Act 1965 to register it as a town or village green. The County Council, as registration authority, sought guidance from the Chancery Division on the legal effect of class c registration, the amended statutory definition, the date of qualifying use, amendments to the application, and the evaluation of evidence.

Mr Justice Lightman gave declarations on those issues in [2004] EWHC 12 (Ch). The County Council appealed. The central questions concerned whether registration created recreational rights or statutory protection, whether use had to continue to registration, and how flexibly the authority could determine the application.

Appeals allowed to the extent indicated. The Court of Appeal substituted a general declaration that the registration authority must consider the application in accordance with the principles stated in the judgment.

1. Registration of a class c green is conclusive under section 10 of the Commons Registration Act 1965 that the land is a town or village green. The definition section identifies land capable of registration but does not itself create rights. Class a and class b greens do not carry a single standard package of rights. Historic class c greens may retain pre-existing customary rights, but registration of a modern class c green does not imply recreational rights for local inhabitants. Any previously unregistered rights capable of registration had been extinguished by section 1(2).
2. Registration does establish that the land falls within the statutory references to town or village greens in section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876. The court reached that conclusion by reading the two statutory schemes together, notwithstanding the penal consequences and the absence of an express retrospective provision.
3. Under the amended definition, lawful sports and pastimes must continue until the date of registration. An application made on or after 30 January 2001 engages only the amended definition. The savings in section 16 of the Interpretation Act 1978 did not preserve any relevant right or status in this case.
4. There was no legal basis for treating land as having become a green at an earlier free-standing date when it had not been registered. The authority could, however, treat the application as referring to a different qualifying period, permit an amendment to a lesser area, and register only part of the land. The procedure has a public and administrative character, and must be managed fairly and sensibly, with appropriate publicity where other interests may be affected.
5. The accessibility of parts of the land, use of tracks, and possible public rights of way raise questions of fact and degree. The authority must ask how a reasonable landowner would have interpreted the use. The appellate court declined to prescribe more detailed guidance before the facts had been determined.

Lord Justice Peter Gibson and Mr Justice Blackburne agreed with Lord Justice Carnwath.

• Court of Appeal (Civil Division): appeals allowed to the extent indicated; the registration authority was directed to apply the principles stated in the judgment.
• Chancery Division: Mr Justice Lightman’s decision in [2004] EWHC 12 (Ch) was varied in accordance with the Court of Appeal’s answers to the issues.