Interpretation and Cases on Village Greens: Commons Registration Act 1965

Notes Regarding Property Outline: In following the suggestions provided to me by my seminar leader, I have searched out quotes regarding the changing face of village greens to add value to my essay. Outside of this remark I have not changed any of my intentions with the format of this essay as the outline suggests this. This essay will focus on cases, particularly Sunningwell, Beresford, and Oxfordshire (both the Court of Appeal and House of Lords decisions), that have dealt with the interpretation and application of various legislation involving type ‘c’ village greens, with particular emphasis on the Commons Act 1965.

With reference to the title statement, I comply that the ‘debate’ that is suggested in this heading involves much more than simply those cases mentioned within it, and to suggest that the ‘debate’ could have occurred so succinctly would be ill-considered and quite circumscribed. I intend to support this claim by analysing the 1965 legislation as well as the ensuing amendments to it and relevant case law. I believe that the ‘debate’ mentioned in the title statement involves the interpretation of the Commons Registration Act 1965 legislation, specifically regarding type ‘c’ village greens and their definition.

However, I contend that the ‘debate’ does not begin at the case of Sunningwell1 but arguably began at the conception of the 1965 legislation, as it is the legislation itself that is under scrutiny within the courts. Furthermore, to say that the ‘debate’ was resolved by the case of Oxfordshire, or the ‘trap grounds’ as mentioned above, is premature, as there remains aspects of the village green legislation under scrutiny, which I will outline later in this essay.

The phraseology adopted within the 1965 Act regarding class ‘c’ village greens lends itself to scrutiny because of the unclear nature of its vocabulary. The need for amendment to the Commons Registration Act 1965 was noted in the New Windsor Corp. 2 by Lord Denning M. R. , stating that the legislation was incomplete and that at its conception the government intentionally left the class ‘c’ definition open with the expectation that later legislation would resolve any ambiguities.

Type ‘c’ village greens are outlined in the original legislation under s. 22 of CRA 1965 as: “land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports or pastimes or in which the inhabitants of any locality have indulged in such sports and pastimes as of right, for not less than twenty years. ”

As will be outlined through case law in this essay, the most problematic aspects of this section include the interpretation and understanding of the terms ‘as of right,’ ‘lawful sports and pastimes,’ and ‘inhabitants of any locality. ‘ The background to the construction of each of these terms are discussed by various courts throughout village green case law, and the interpretation of each and the resulting case law has resulted in significant modification to the 1965 Act through new legislation.

Though the term ‘as of right’ has been used in previous legislation, its interpretation, up to the case of Sunningwell, was quite contentious. Prior to Sunningwell the Court of Appeal held in the case of Steed3 that, after analysing the 1965 Act, the term ‘as of right’ included a mental element on the part of the inhabitants of the land in question; it was compulsory for the inhabitants to believe that they’re use of the land was limited to the people within the village or town.

However, as little as one year after the judgement in Steed the House of Lords determined that the term ‘as of right’ required further analysis before they placed their judgement on the registratory outcome of the glebe in Sunningwell. In Hoffman L. J. ‘s analysis of section 22 he refers to the evolution of the term ‘as of right’ through legislation dating as far back as 1832, and in some instances even earlier, after which he determines that the term does not appear to have had any mental element attached to it.

He goes on to argue that ‘as of right’ should be interpreted along the same lines as the common law concept of ‘nec vi, nec clam, nec precario,’ meaning not by force, secrecy, or licence, and that the addition of the requirement to seek out the subjective state of mind of the inhabitants who used the glebe would be ‘contrary to the whole English theory of prescription,’4 a theory Hoffman L. J. set out in his argument against the requirement of said mental element through case law and reference to prior legislation on similar issues.

There also existed the issue of the term ‘sports and pastimes’ in the Sunningwell application, for which it was argued that in order for the term to be satisfied both ‘sports’ and ‘pastimes’ must occur at the location. Hoffman L. J. argued that the law was not meant to be interpreted this way, and that instead the two terms were separate ways to define a single class of ‘actions’ individuals may take on the land, and that any recreational activity would satisfy this element. The House of Lords as a whole agreed with Hoffman L. J. concluding that ‘sports and pastimes’ was an aggregate term, and that any recreational activity that met the modern definition for either would suffice. They also held that the mental element that was previously necessary in fact had no place in the legislation and therefore should not be a requirement for meeting the ‘as of right’ component of section 22. A further obstacle to the glebe’s initial application was found when it was made apparent that the use of the land was not exclusive to the local inhabitants, and that indeed some ‘strangers’ enjoyed the glebe as well.

In this instance, after assessing section 22, it was determined that nowhere did it state that the local inhabitants had to have exclusive use of the land, and that it was enough that the glebe was used predominantly by locals. Therefore, where previously the application for the glebe in Sunningwell had failed, the House of Lords allowed for the successful registration of the land as a village green because all elements, in their judgement, were met under section 22 for a class ‘c’ village green to arise.

I feel that it is necessary to point out the extent to which the House of Lords had to analyse the meaning of the terms in the 1965 Act, as well as the differing interpretations of the very same section of the act by other courts and cases, indicates that there may be significant issues with the legislation itself; for this reason I strongly believe that the ‘debate’ as set forth in the title statement most definitely began before the case of Sunningwell. The case of Sunningwell broadened the definitions of the terms within s. 2 to an extent that it was apparent the court favoured applicants over landowners in this area of legislation, and because of this many land developers began to see a rise in the number of village greens where previous potential development areas once were, and this topic will be discussed further later in this essay. The introduction of the Countryside and Rights of Way Act 2000 demonstrates further that the 1965 Act provided an inadequate outline of what constitutes a class ‘c’ village green. Section 98 of the CROW Act amends section 22 of the Commons Registration Act 1965 in a few ways.

Most noticeably s. 98 changes the requirement that individuals be “inhabitants of the locality” and instead broadens the description of the individuals to include a ‘significant number of people from the locality or neighbourhood. ‘5 CROW also makes sure that if a time limit is ultimately introduced for applications on town and village greens that regulations should be put in place. The existence of the CROW Act shows how the 1965 legislation was problematic as it stood, and the cases of Sunningwell and Steed are only a couple of examples of the need for amendment to the CRA 1965 prior to the CROW Act 2000.

It is apparent that the CROW ACT may not have been enough to amend all the problems that the 1965 Act afforded, as may be shown through the case of Beresford. 6 The House of Lords held that the land in question would ultimately become a village green, but this was not without reservation. The question arose as to whether the ‘nec precario’ element of as of right had been satisfied; the landowner argued that the inhabitants of the locality had used the land with licence because the landowner had maintained it so that they may enjoy its continued use.

It was argued that because of the landowner’s actions the use of the land was through licence, and the ‘as of right’ element would therefore not be satisfied. The House of Lords disagreed and maintained that even though the land was kept up, the locals had indeed used the land in such a way that satisfied not only the ‘as of right’ component, but all other components of s. 22 of the CRA 1965 as amended by s. 98 of CROW 2000. The decision in Beresford has opened up the interpretation of ‘as of right’ further than Sunningwell in that it provided less stringent criteria for the ‘as of right’ requirement to be met.

The court held that so long as the individuals from the locality had acted in such a way that ‘as of right’ may be deduced, and the landowner made no official claim to the land otherwise, providing maintenance to the land for the benefit of the locals before an application for village green status would make no difference to the as of right element as this is exactly the type of action the landowner would be required to take after a successful registration of a village green.

It was apparent to the court, however, that the application of the land in Beresford for village green status was primarily to prevent the development of schools on the land, a purpose for which the Commons Registration Act was not primarily created. Walker L. J. noted that he would: “allow this appeal and quash the decision which the city council took by its licensing committee. I reach this conclusion with mixed feelings.

The campaigning group named Washington First may feel that they have won a famous victory, and saved an important public amenity from being built on. That seems to be the likely consequence of this case. But the campaigners have achieved that end by a route which has bypassed normal development controls, and in a way which may be thought to stretch the concept of a town or village green close to, or even beyond, the limits which Parliament is likely to have intended. 7 Walker L. J. goes on to remark that the need or decision to amend the Commons Registration Act 1965 was a matter to be considered by Parliament; this demonstrates that although the CROW Act’s purpose was to fix the problems already found within the 1965 legislation, it neglected those potential problems that would inevitably arise as a result of the loophole the CRA 1965 created for anti-development individuals.

This point was noted in the earlier case of New Windsor Corp by Lord Denning M. R. when he enunciated regarding the CRA 1965 that: “another difficulty is that, once registered, these rights are established for ever without any possibility of changing them except by Act of Parliament, and this may impede needed development. “8 This was an absurd case for which a car park was being considered for village green status, which I believe stretches the meaning of ‘village green’ quite thin.

The fact that the possibility of the obstruction of development in England through the use of the 1965 Act was discussed at such an early date should have triggered alarms at the time, and it is possible that new legislation should have been put in place much sooner than it was to prevent such a thing from happening. A further example of the use of village green registration to attempt to prevent development may be seen in the case of R v Buckinghamshire County Council9, in which the applicant’s sole purpose was to prevent the development of housing on the farmland.

The High Court did not allow the registration of the land as a village green as the evidence regarding its use did not support the requirements of the law. However, the county council initially allowed the application, and only upon appeal did the registration of the land as a village green fall through. This further supports the argument that the 1965 Act began the debate on registration of village greens because of the necessity of applications to continue to higher courts for judgement.

The decisions in Sunningwell and Bereford began a tumultuous episode of applications for village green status for many areas of land intended for development use. The expanded definitions of the terms within the act made it plausible for land to be considered for village green registration where previously no such application would have likely been made, which I contend was not the intention of Parliament when the Act was created.

In the decision on the ‘trap grounds’ Hoffman L. J. touched on a comment made by Walker L. J. in the Beresford case, stating that some people may: “feel a visceral unease at the lack of resemblance between the land registered in that case [Beresford] (and sought to be registered in this one [Oxfordshire C. A. ]) and the “traditional” village green whose passing was lamented by Goldsmith in 1770. “10 Here Hoffman L. J. eferences a poem by Goldsmith that describes the idyllic village green as it may have been seen in earlier times, before and even at the beginning of registration of lands of common, and that in cases like Beresford village greens have begun to attain a face quite different to that of what may have been intended by Parliament in the creation of the act, a face that would strike uneasiness not only in the eye of landowners, developers, and Parliament, but also the eye of the public.

This sentiment is echoed in an article published by The Independent in 2004 following a decision to register an area called Booth Field in the Harrietsham, Kent as a village green. The writers proclaim at the beginning of their article that: “The village green is the very emblem of English summertime. It evokes memories of warm beer, cricket and morris men dancing round the maypole. But over the last few decades this prime location at the heart of village life has become increasingly under threat from the spectre of development. 11 Up to this point the village green supporters and land developers had been at complete odds regarding land that may be potentially registered as a village green. The law regarding this topic was not much less unambiguous, and further clarification was needed. In what may potentially be described as an attempt to meet the aforementioned challenge, the Court of Appeal’s findings in Oxfordshire CC v Oxford City Council [2005]12 completely turned the legislation regarding village greens upside down.

This may possibly be the most controversial decision made regarding the registration of land as a village green. The trap grounds in Oxfordshire were, in Walker L. J. ‘s words, ‘an over-grown, rubble-strewn, semi-submerged area, sandwiched between the canal and the railway in north-west Oxford. ‘ It is apparent that the application was made primarily to prevent the development of the land, as the local inhabitants could not use the vast majority of it at leisure, and those areas that were utilizable were difficult to manoeuvre at best.

The decision to apply for the trap grounds to be registered as a village green was a dubious appeal by the applicants, and the decision of the Court of Appeal was made in no better fashion. The court declared that with regard to the amended definition of class ‘c’ village greens in the CROW Act, the term ‘continuing to do so’ implied that the land in question be used consistently for at least a period of 20 years up to the point of registration. The incredulous interpretation of the s. 8 of CROW in Oxfordshire essentially put all the power on this topic in the hands of the landowner. Landowners are informed as soon as an application is put through for their land to become a village green, and all that a landowner must do to prevent it’s successful application is destroy the ‘as of right’ element, which may be accomplished a number of different ways (e. g. erecting a fence, posting a no trespass sign, or even granting a licence).

Therefore, the only way a village green application may be successful as a result of this decision is if the landowner either cannot be found, or if he does nothing to prevent it. Lightman L. J. posed a differing opinion in his High Court judgment to that of the Court of Appeal, arguing that it would ‘frustrate the purpose of the legislation’13 because landowners would be able to defeat village green claims every time, thus making the need for judgement on the matter thereafter all but obsolete.

I do not believe that the purpose of this legislation was to empower landowners and land developers; instead, I contend that the legislation on village greens arose to do the exact opposite: to allow those common areas of parishes and villages to remain available for the leisurely use of the public, as well as maintain England’s calling card as a ‘green and pleasant land. ‘ The Court of Appeal’s assessment in Oxfordshire works directly against this, and is contrary to prior decisions on this area of the law, which demonstrates the ambiguity that still existed within village green legislation up to this point.

The Court of Appeal did not hold the final decision on Oxfordshire, however, as the applicants appealed once more to the House of Lords. The 2006 decision on this case clarified the legislation further and reversed the decision made by the Court of Appeal, a fact which further demonstrates the uncertainty that existed within this area of the law at the time. The House of Lords found that land considered for village green status must be used for sports and pastimes continuously for a period of at least twenty years up to the point of application, not registration.

While this judgement diminishes the developers’ and landowners’ prerogative, it provides a much needed clarification s. 98 of the CROW Act, which ultimately benefits developers and village green advocates alike. Other aspects of the legislation were also in contention in both the Court of Appeal and House of Lords, particularly regarding whether a ‘significant number’ of inhabitants had utilised the land, but this ultimately was not a large enough obstacle to prevent the ‘trap grounds’ in Oxfordshire from becoming a village green.

The decision in the House of Lords on Oxfordshire ran parallel to what at the time was the Commons Bill 2006, a piece of legislation in the making who’s purpose, regarding this area of the law, was to further clarify and amend the protocol for registering village greens. The House of Lords determined the outcome of the trap grounds based on their knowledge of Parliament’s intentions with what is now the Commons Act 2006, so it is arguable that the ‘trap grounds’ did not end the debate in question themselves, and that the Commons Act 2006 would be a better candidate for its closure.

The 2006 Act clarified the registration process for village greens in an important way, and gave great sway to the wishes of village green advocates. The new legislation allows for village green applications after April 6th 2007 to be submitted up to two years after the land has been used for lawful sports and pastimes as of right for not less than twenty years; it allows five years for applications on land for which this was the case prior to the above date.

This legislation also clarified what would be accepted regarding the twenty year time period, allowing for legal enactments and natural disasters to be ‘erased’ from the timeline should they prevent the use of the land in any form, so long as that land may be continued to be used after such an event. In summary, the debate over village green registration began at the conception of the Commons Registration Act 1965 and not at the case of Sunningwell.

This is due to the ambiguous and unclear manner in which the 1965 Act meekly outlined the terms for which land may be registered for a village green, an action that left the act open to scrutiny and confusion. The argument that the ‘trap grounds’ ended the debate about village green registration would surely be trumped merely by the existence of the Commons Act 2006, as this is what has ultimately provided the most amount of clarity and guidance regarding this subject.

However, to state that this legislation ends the debate in question may be premature, as there are aspects of the vocabulary used in even this act that may meet contention in the courts. 14 In many ways this legislation has made the registration of town and village greens a much less ambiguous and painstaking effort for the village green advocate, but at what expense? It is possible that the battle over village greens will not end yet, even after the creation of this well-devised Act.

Contention may still exist regarding the control given to village green advocates over areas of English land that may serve the purpose of developers and common land protectors alike, particularly if that land always ends up on the village green register. Though the legislation does provide clarification, it may also provide a more solid obstacle to the development of English land, which may well be the opposite intention of Parliament and its desire to keep the English tradition of the village green alive.