Oxfordshire County Council (Respondents) v. Oxford City Council (Appellants) and another (Respondent) (2005) Oxfordshire County Council (Respondents) v. Oxford City Council (Respondents) and another (Appellant) (2005) Oxfordshire County Council (Appellants) v. Oxford City Council and another (Respondents) (2005) (Conjoined Appeals)

Land satisfying the statutory user requirements does not become a town or village green until it is registered under the Commons Registration Act 1965. Under the amended definition, recreational use must continue until the application date, not until registration.

Registration gives the relevant inhabitants general rights to indulge in lawful sports and pastimes. The owner retains title and may use the land consistently with those rights. Registered greens are protected against nuisance and encroachment by the Inclosure Act 1857 and the Commons Act 1876.

A registration authority may fairly permit amendments and may register only the part proved to qualify. It need not investigate or reformulate an applicant’s case.

Miss Robinson applied to Oxfordshire County Council to register the Trap Grounds, nine acres of reed beds and scrubland in North Oxford, as a town or village green. An inspector found sufficient recreational use of the scrubland during the relevant 20 years, but not of the reed beds or Frog Lane.

Conflicting legal advice led the registration authority to seek ten declarations concerning the qualifying period, the legal effect of registration, the application of Victorian protective legislation, amendments and partial registration, and the assessment of recreational use. Lightman J gave declarations reported at [2004] Ch 253. The Court of Appeal, in Oxfordshire County Council v Oxford City Council and another [2005] EWCA Civ 175, [2006] Ch 43, varied some declarations and upheld others.

The conjoined appeals required the House to determine those issues of statutory construction and registration procedure.

1. Disposition. Lord Hoffmann delivered the leading speech. Lord Rodger and Lord Walker agreed with his reasons and proposed disposal, forming the controlling majority. Miss Robinson’s appeal was allowed on issues (i) and (iii), but dismissed on issues (iv) and (v). The city council’s appeal on issue (ii), and the county council’s appeals on issues (vi) to (viii), were dismissed. Issues (ix) and (x) received no further answer.

2. Acquisition and qualifying period. Per Lord Hoffmann, land which has completed a qualifying period of recreational use becomes registrable but does not become a town or village green until registration. Sections 10, 13 and 22 of the Commons Registration Act 1965 create a conclusive register. The amended definition therefore governed applications made after its commencement, including applications based on earlier use. The requirement that inhabitants “continue” their use means continuation until the application date. Requiring use until registration would enable an owner to defeat an application by obstructing use after receiving notice.

3. Effect of registration. Per Lord Hoffmann, registration conclusively subjects the land to general recreational rights for the relevant inhabitants. Those rights are not confined to the precise activities which supported registration. The owner retains title and may use the land in ways compatible with recreation; there must be give and take between owner and inhabitants. Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 apply to registered greens. They restrain nuisance, encroachment and interference, but do not prohibit compatible use by the owner.

   This construction did not violate article 1 of the First Protocol. Unlike the extinction and private transfer considered in J A Pye (Oxford) Ltd v United Kingdom [2005] 3 EGLR 1, the owner retained title and compatible uses, while registration protected open space in the public interest.

4. Registration procedure and evidence. The procedure was intended to be simple and informal. A registration authority may allow an amendment whenever fairness permits, with republication or an adjournment where necessary to avoid prejudice. It may register only the portion proved to qualify without requiring amendment, and no substantial-similarity rule applies. The authority has no investigative duty to find evidence or reformulate the case.

   Whether paths, clearings and accessible portions demonstrate recreational use of the whole land is fact-sensitive. There is no mathematical minimum. The statutory inquiry remains whether a significant number of relevant inhabitants indulged in lawful sports and pastimes on the land for the prescribed period.

5. Scope and dissents. Lord Hoffmann, Lord Rodger and Lord Walker considered that the statutory definition should not be narrowed by an implied requirement that the land resemble a traditional green, although that question had not been formally presented for decision. Lord Scott dissented from that approach and would have retained the ordinary conception of a mainly grassy area near a settlement. He would also have limited post-registration rights to use commensurate with the qualifying use. Lord Scott and Baroness Hale would have declined to answer the abstract questions about post-registration rights and the Victorian statutes. Baroness Hale also considered that land could have become a new green before the 2000 amendment without prior registration.

• House of Lords: In Oxfordshire County Council v Oxford City Council and another [2006] UKHL 25, the House varied the Court of Appeal’s rulings by restoring the declarations that registration creates recreational rights and that qualifying use must continue until the application date. It otherwise dismissed the appeals as stated in the disposition.
• Court of Appeal: In Oxfordshire County Council v Oxford City Council and another [2005] EWCA Civ 175, [2006] Ch 43, the court allowed appeals concerning some of Lightman J’s declarations and dismissed others.
• High Court: Lightman J determined ten requested rulings concerning the meaning and effect of the Commons Registration Act 1965, registration procedure and evidential matters. His decision is reported at [2004] Ch 253.