Oxfordshire County Council v Oxford City Council & Anor

[2005] EWCA Civ 175

Summary

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.

Factual background

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.

Held

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.

The court’s approach to earlier authorities

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Appellate history

  • 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.

Appeal route

  1. Appealed from[2004] EWHC 12 (Ch)This appealappeals allowed to extent indicated
  2. This judgment [2005] EWCA Civ 175 Court of Appeal (Civil Division)
  3. Appealed to[2006] UKHL 25Outcomeconjoined appeals disposed of by majority: miss robinson’s appeal allowed on issues (i) and (iii) and dismissed on issues (iv) and (v); the city council’s and county council’s appeals dismissed; issues (ix) and (x) not further answered

Key cases cited

The 30 most senior of 37 authorities cited.

  • Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) (Appellant) [2003] UKHL 60
  • R v Oxfordshire County Council, Ex parte Sunningwell Parish Council [2000] 1 AC 335
  • Whitmey, R (on the application of) v The Commons Commissioners [2004] EWCA Civ 951
  • Chief Adjudication Officer v Maguire [1999] 1 WLR 1778
  • R (Alfred McAlpine Houses Ltd.) v Staffordshire County Council [2002] EWHC 76 (Admin)
  • Victor Chandler International Ltd v Customs and Excise Comrs [2000] 1 WLR 1296
  • R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] JPL 975
  • Caerphilly County Borough Council v Gwinnutt unreported, 16 January 2002
  • R v Suffolk CC ex p Steed (1996) 70 P & CR 487
  • Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931
  • Hampshire County Council v Milburn [1991] 1 AC 325
  • Dyfed CC v Secretary of State for Wales (1989) 59 P & CR 275
  • In re West Anstey Common, North Devon [1985] Ch 329
  • Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553
  • President and Scholars of Corpus Christi College, Oxford v Gloucestershire County Council [1983] QB 360
  • Inverclyde District Council v Lord Advocate (1981) 43 P & CR 375
  • Central Electricity Generating Board v Clwyd County Council [1976] 1 WLR 151
  • New Windsor Corpn v Mellor [1975] Ch 380
  • Re Village Green, Waddingham, Lincs (1972) 24/D/3
  • Tehidy Minerals Ltd v Norman [1971] 2 QB 528
  • Alfred F Beckett Ltd v Lyons [1967] Ch 449
  • Pole-Carew v Craddock [1920] 3 KB 109
  • Edwards v Jenkins [1896] 1 Ch 308
  • Lancashire v Hunt (1894) 10 TLR 310
  • Mann v Brodie (1885) 10 App Cas 378
  • Hammerton v Honey (1876) 24 WR 603
  • Hall v Nottingham (1875) 1 Ex D 1
  • Mounsey v Ismay (1863) 1 H&C 729
  • Schwinge v Dowell (1862) 2 F&F 845
  • Chapman v Cripps (1862) 2 F&F 864

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