Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust & Ors, R (on the application of)v Deluce & Ors

For registration of a statutory town or village green, it is sufficient that a significant number of inhabitants of a qualifying locality or neighbourhood have used the land for the statutory period. The users need not predominantly come from that locality or neighbourhood.

A notice renders recreational use contentious only if, objectively and in context, it conveys to users that the owner objects to and contests that use. Evidence of users’ responses may assist. The owner’s uncommunicated subjective intention is generally irrelevant.

A notice directed to particular claimed rights of way may not affect general recreational use of the land. An immaterial error of law will not justify quashing a decision where the same result would inevitably have followed.

The claimants sought judicial review of Oxfordshire County Council’s resolution to register Warneford Meadow as a new town or village green under section 22(1A) of the Commons Registration Act 1965, as amended by section 98 of the Countryside and Rights of Way Act 2000.

The Inspector found that inhabitants of Hill Top Road, a neighbourhood within a wider locality, had used the Meadow for lawful sports and pastimes as of right for at least 20 years. The claimants challenged the treatment of 1989 notices, the alleged requirement that users predominantly come from the qualifying neighbourhood, and an error concerning the rights conferred by registration.

1. Notices. The question was what the notices conveyed to the users, objectively and in context. Relevant considerations included the wording and location of the notices, the actual response of users, the surrounding circumstances, and whether further steps would have been proportionate. Uncommunicated subjective intention was strictly irrelevant, subject to limited circumstances where it made an asserted meaning realistic or where it had been communicated.
2. The signs stating “No Public Right of Way” were directed to particular paths and were reasonably understood as addressing the acquisition of public rights of way. They did not objectively prohibit general recreational use of the Meadow. The Inspector had made, or might have made, an error by relying on subjective intention or later material, but that error was immaterial. Applying Simplex GE (Holdings) Ltd v Secretary of State for the Environment and the City and District of St Albans District Council (1989) 57 P & CR 306, the same conclusion would have followed.
3. Neighbourhood and predominance. Section 22(1A) requires a significant number of inhabitants of any locality or neighbourhood within a locality to have used the land. It does not require those users to constitute a majority or predominant proportion of all users. The statutory language, reinforced by the Parliamentary material considered under Pepper v Hart [1993] AC 593, removed the predominance requirement applied or assumed in R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335.
4. A neighbourhood must nevertheless have sufficient pre-existing cohesiveness and be capable of meaningful description. The Inspector was entitled to identify Hill Top Road rather than the wider proposed neighbourhood.
5. The Inspector incorrectly stated that further neighbourhoods might later acquire rights through registration. That error had no material effect on the recommendation or the Council’s decision. The remaining challenges, including those concerning the 20-year period and the meaning of lawful sports and pastimes, failed.
6. Disposition. The application for judicial review was dismissed.