Oxfordshire County Council v Oxford City Council & Ors

The House of Lords considered the meaning and effect of the definition of "town or village green" in section 22 of the Commons Registration Act 1965 as amended by section 98 of the Countryside and Rights of Way Act 2000. The court held that (i) land does not become a village green until it is registered under the 1965 Act and the amended class (c) test requires user to "continue" until the date of the application to register; (ii) registration under section 10 operates as conclusive evidence that the land is a green and, as a practical consequence, the inhabitants acquire rights to indulge in lawful sports and pastimes commensurate with the nature of the user; (iii) land registered as a town or village green falls within the scope of the Inclosure Act 1857 section 12 and the Commons Act 1876 section 29; and (iv) registration authorities may, in the exercise of their discretion and subject to fairness, permit amendments to applications and may register part only of the land claimed.

The Trap Grounds in north Oxford are an approximately nine acre area of reed beds and scrubland. On 21 June 2002 Miss Catherine Robinson applied to register part of the site as a town or village green under the Commons Registration Act 1965 (class (c) — 20 years' use as of right). The registration authority appointed an inspector who recommended registration of the scrubland but not the reed beds. Conflicting legal advice about procedural and substantive questions led the county council (as registration authority) to seek declaratory directions from the High Court. Lightman J made a number of declarations; the Court of Appeal (Carnwath LJ) allowed some appeals and dismissed others. The matters were appealed to the House of Lords.

Nature of the relief sought: declaratory rulings and guidance on ten issues arising from the application to register, including (a) whether registration creates rights of recreation, (b) whether registration brings the Victorian protection statutes into play, (c) how to construe the 20 year class (c) limb and the words "continue to do so" in the amended section 22, and (d) procedural powers of the registration authority to amend applications or register part only of the land.

Issues framed by the court: (i) whether inhabitants obtain recreational rights on registration; (ii) whether registered land attracts section 12 Inclosure Act 1857 and section 29 Commons Act 1876 protection; (iii) the temporal scope of the 20 year period and the meaning of "continue to do so"; (iv) whether the 2000 amendment applies to applications made after 30 January 2001; (v) whether an application specifying an earlier date must fail; (vi)-(viii) powers to alter application dates or areas and to register part only; and (ix)-(x) evidential guidance on use and public rights of way.

Reasoning (concise): the court read section 22 and the statutory registration scheme purposively and concluded that the register is definitive: an area does not acquire legal village‑green status until registered; the 2000 amendment requires continuity of qualifying user to the date of application; registration, by virtue of section 10, is conclusive and gives rise to rights to use the land for lawful sports and pastimes in a manner commensurate with the user proved; the Victorian summary protection provisions apply to land registered as a green; and registration authorities must act fairly and may permit amendments or register a proved smaller area.

Appeal allowed in part. The House held that (1) for the purposes of section 22 as amended by the Countryside and Rights of Way Act 2000 the period of user required by class (c) must continue up to the date of the application to register; (2) land does not attain village green status until it is registered under the Commons Registration Act 1965; (3) registration under section 10 gives rise to rights to indulge in lawful sports and pastimes commensurate with the user, and registered land falls within the Inclosure Act 1857 s12 and Commons Act 1876 s29 protections; and (4) registration authorities may, subject to fairness, allow amendments to applications and may register part only of the land claimed. The court gave these conclusions based on the text, statutory scheme and legislative history and rejected arguments that the 2000 amendment had no prospective effect or that registration created no enforceable recreational rights.

First instance: declaration proceedings before Lightman J (High Court) (reported at [2004] Ch 253). Court of Appeal (Carnwath LJ) allowed some appeals and dismissed others ([2005] EWCA Civ 175). Appeal to House of Lords ([2006] UKHL 25) — conjoined appeals resolved by majority opinions.