Oxfordshire County Council v Oxford City Council and another
[2006] 4 All ER 897[2005] 3 WLR 1043
[2006] UKHL 25
[2006] 2 AC 674
(Decision by: Baroness Hale of Richmond)
Oxfordshire County Council
v Oxford City Council and another
Judges:
Lord Hoffmann
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Judgment date: 24 May 2006
Decision by:
Baroness Hale of Richmond
[129] My Lords, town and village greens are not just picturesque reminders of a by-gone age. They are a very present amenity to the communities they serve. The village green in Scorton, in the North Riding of Yorkshire, is a perfect example. Most of it is contained within a three-foot high old stone wall and raised to the level of the top of that wall, thus giving it a character all its own. It is surrounded by the old village houses, including the former vicarage, the two remaining pubs, the shop, the village institute, and the eighteenth century building which was until recently the old grammar school. It was and is the centre of the community. Both villagers and grammar school boys played cricket there in the summer; archery contests were held there; a bonfire was built for Guy Fawkes' Day; the fair and other events of Scorton feast were held there every August; and all the villagers could walk and play games upon it. It is just the sort of place that the Royal Commission on Common Land 1955-1958 had in mind when it proposed the definition of a town or village green quoted by my noble and learned friend, Lord Hoffmann, at [14], above.
[130] But how much should our answers to the examination paper which we have been set by the parties be influenced by that image? That has emerged as an important issue between us. So too has the propriety of the examination paper itself.
[131] I confess that it did not occur to me during the hearing (to which I came rather later than your Lordships); but having now had the benefit of reading in draft the opinion of my noble and learned friend Lord Scott of Foscote, I share his misgivings about the propriety of our being asked, still less of our answering, some of the questions on the examination paper. These are private law proceedings, not an application for judicial review in which a declaration is sought as to the legality of the actions of a public body. The declaratory jurisdiction has been expanded considerably in recent decades, as we from the Family Division are very well aware (see the judgment of Sir Thomas Bingham MR in Re S (hospital patient: court's jurisdiction) [1995] 3 All ER 290, [1996] Fam 1). Nevertheless, it remains a discretionary jurisdiction to make 'binding declarations of right'. As Lord Diplock famously said in Gouriet v Union of Post Office Workers [1977] 3 All ER 70 at 100, [1978] AC 435 at 501:
'But the jurisdiction of the court is not to declare the law generally or to give advisory opinions: it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else.'
Since then, but not without some misgivings, the jurisdiction has been extended to enable the courts to declare whether or not a proposed course of action, such as the sterilisation of, or the withdrawal of artificial nutrition and hydration from, a person who lacks the capacity to decide it for himself will be lawful. In the leading case of F v West Berkshire Health Authority [1989] 2 All ER 545 at 570-571, sub nom Re F (mental patient: sterilisation) [1990] 2 AC 1 at 82, Lord Goff of Chieveley, after quoting from the speech of Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448, [1921] All ER Rep 329 at 332, said this:
'. . . indeed there is authority in the English cases that a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument . . . In the present case, however, none of these objections exists. Here the declaration sought does indeed raise a real question; it is far from being hypothetical or academic. The plaintiff has a proper interest in the outcome, so that it can properly be said that she is seeking relief . . . The matter has been fully argued in court . . . I wish to add that no question arises in the present case regarding future rights: the declaration asked relates to the plaintiff's position as matters stand at present.'
[132] These proceedings were launched by the registration authority because of a difference of opinion between the inspector they had appointed to conduct an inquiry into Miss Robinson's application to register the Trap Grounds as a town green and their own legal adviser. Could Miss Robinson be allowed to amend her application, either to claim that the land had become a town green on a different date from that first stated or to reduce the area of land to be registered? Even if she could not amend her application, could the registration authority nevertheless adopt a different date or register a different area?
[133] On one view, the better course would have been for the registration authority to take a decision, following whichever advice seemed best to them. Whichever party was aggrieved, Miss Robinson or the Oxford City Council, would be left to apply for judicial review. Leave would have been required and the issues would have been confined to those raised by the authority's decision. But the authority clearly did have an immediate interest in knowing what their powers were. There was nothing hypothetical or academic about the issues. There were opposing parties who also took different views on these matters, so that they could be properly argued. This could therefore be seen as a proper case for seeking an advisory opinion from the court, tied specifically to the issues relating to the powers of the registration authority in the circumstances which had arisen.
[134] But this does not apply to issues (i) and (ii). Both are entirely hypothetical. They are pure questions of law, not related to any existing set of facts. Issue (i) is asking the court 'whether the relevant inhabitants have rights to indulge in lawful sports and pastimes on land which has become a [new] green'. It is not even asking the more precise question: if the Trap Grounds are registered as a town green, will Miss Robinson and other local inhabitants be entitled to continue to walk their dogs and/or conduct other lawful sports and pastimes and/or clear some land so that they can play football and other games (which would, I imagine, horrify Miss Robinson more than the city council) without let or hindrance from the city council? Issue (ii) is asking whether land which has become a new green falls within the scope of s 12 of the Inclosure Act 1857 and s 29 of the Commons Act 1876. It is not even asking the more precise question: if the whole of the Trap Grounds (apart from the reed beds) are registered as a town green, will it be a criminal offence to construct an access route to the new school?
[135] The county council as registration authority have no interest in the answers to those questions (although as education authority they would have an interest in a more precisely formulated version of the second). Miss Robinson and Oxford City Council do have an interest, in that their legal positions may in future be affected by the answers. The government and the public at large have an interest, in the sense that they might have preferences, for any number of policy and other reasons, for the answers to be one way or another. But the court has a discretion whether or not to make a declaration. I question whether any of these are good enough reasons for a court to make general declarations as to the future legal position, in advance of any actual set of facts raising a precise question upon which the court may make a 'binding declaration of right'.
[136] Unlike academic textbook writers and examiners, the courts do not decide legal questions in a vacuum. They know that, while hard cases may indeed make bad law, the particular facts of the case before them do cast a particularly bright light upon the legal issues and may throw up important questions which no rehearsal of the legal arguments in the abstract can ever do. Why, after all, do the best legal examination papers require candidates to answer problems based upon a precise, though imaginary set of facts? Because that is the way in which our case law has developed over the centuries. It is only legislators who make legal rulings in general and without reference to a specific set of facts. Yet this is exactly what our legislators have so far declined to do on questions (i) and (ii). They have an immediate opportunity, in the Commons Bill currently before Parliament, to fill in those two important gaps. Both raise important policy issues of a kind which courts should not have to resolve by reference to legal rather than policy arguments. Above all, if we give an answer to these questions, it will be taken as binding--not only on the parties before us now but on all future parties before any future court, including a criminal court, because the way in which we state the law will be binding upon the judges who decide those cases.
[137] My Lords, as an academic lawyer and examiner of students, I would see nothing wrong in essaying an answer to those questions, secure in the knowledge that if I turned out to have overlooked some important consideration which emerged in a later case, a court could and would ignore my views. As a judge, I see every objection to answering those questions. The fact that all parties and all courts have so far proceeded on the basis that we both can and should answer them does not to my mind outweigh the formidable objections to our doing so. Their efforts will be more than rewarded by our answers to the other questions on the examination paper. I would therefore set aside 'rulings' (i) and (ii) made by the Court of Appeal in the judgment of Carnwath LJ ([2005] EWCA Civ 175 at [117], [2005] 3 All ER 961 at [117], [2006] Ch 43) and declarations (i) and (ii) made by Lightman J ([2004] EWHC 12 (Ch), [2004] Ch 253, [2004] 2 WLR 1291) and put nothing in their place.
[138] The other declarations and 'rulings' are different. For what it is worth, I would have agreed with Lightman J, supported by counsel for Miss Robinson and the Secretary of State for the Environment, Food and Rural Affairs, on the effect of events occurring after 31 July 1970 and before 31 January 2001. As I understand that your Lordships take a different view, I shall state my reasons briefly.
[139] After 31 July 1970, by virtue of s 1(2)(a) of the Commons Registration Act 1965, 'no land capable of being registered under this Act shall be deemed to be common land or a town or village green unless it is so registered'. At that date, the definition of a 'town or village green' in s 22(1) of the 1965 Act contained three categories: (a) land 'which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality'; (b) land 'on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes'; and (c) land 'on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years'.
[140] Clearly, once the axe had fallen in 1970, there could be no more class (b) greens. By definition, such customary rights must have existed since time whereof the memory of man knoweth not the contrary, and so the land must have been registrable then. Whether or not the Trap Grounds had previously been part of Port Meadow became totally irrelevant. But there could be new class (a) and (c) greens. Indeed, land which had previously been a class (b) green but had been left off the register might subsequently become a green once more by virtue of statute or, more probably, 20 years' continuing exercise of what had previously been the local inhabitants' customary rights (as has happened with the ancient town green in Richmond, North Yorkshire). Section 98 of the Countryside and Rights of Way Act 2000 altered the definition of a class (c) green in three ways: the use had to be by a 'significant number' of local inhabitants; but they could be inhabitants of any locality 'or [a] neighbourhood within a locality'; and, relevantly for present purposes, they had to 'continue' to use the land in that way. That amendment came into force after the expiry of two months from royal assent on 30 November 2000, but there were no transitional provisions governing the earlier position.
[141] Section 13 of the 1965 Act requires that regulations are made to provide for the amendment of registers where '(b) any land becomes common land or a town or village green . . .' (my emphasis). It could have said 'where (b) any land becomes registrable as a village green' but it does not. Elsewhere in s 13 itself there is a reference to 'matters capable of being registered under this Act'. When different expressions are used in the same statute, let alone in the same section, it is usually assumed that they have different meanings. This is reinforced by s 1, which first envisages in s 1(1) that land already 'is common land or a town or village green' (my emphasis) and requires that it be registered, and then provides in s 1(2)(a) for the effect of failure to register any 'land capable of being registered'. Obviously, land could (before the axe fell) be a town or village green without being registered as such. I see no reason why land could not later become a village green without being registered as such. Section 10 provides that the register is conclusive evidence of the matters registered. It does not say anything about matters which are not registered. Section 1(2)(a) does that. But s 1(2)(a) cannot apply to land which became a green after the axe fell: otherwise there could be no new greens at all. (Some might have considered this a good thing, because then the register would be conclusive for all land and all time, which land lawyers and conveyancers like; but we must beware of translating the principles of other registration schemes relating to land into this one.) Parliament quite clearly envisaged the creation of new greens, however tiresome they may have turned out to be. There is no other provision in the 1965 Act catering for the effect of non-registration.
[142] If that is right, then land might become a new green at any time after the axe fell. Twenty years after the axe expired on 31 July 1990, so it is not surprising that 1 August 1990 was the date claimed in the application. Nothing in the 2000 Act provided that land which had already become a new green should cease to be such when the new definition came into force; nothing in the 2000 Act provided that land which had already become registrable as a new green should cease to be so registrable when the new definition came into force. Left to myself, therefore, I would have concluded that there is a short period of time, from 1990 to 2001, when land might become a new green and remain registrable as such even though the required use was not still continuing.
[143] Be that as it may, I entirely agree, for the reasons given by my noble and learned friend Lord Hoffmann, that the use need continue no longer than the date of the application for registration as a green. I would have liked to agree that it need continue no longer than when it is first put in issue, either by the landowner in some way challenging the inhabitants' right so to use the land, or by the inhabitants taking some steps to assert their right. But the Act is all about registration. Its main provisions deal with the requirement to register, the process of registration, the effect of registration, and in the case of old greens and commons, the effect of non-registration. In that context, it is difficult to read the words 'and continuing' as continuing until some date entirely divorced from the registration process. This is reinforced by the express power (in s 22(1A)(b)) to make provision for land where the use has ceased some time previously. If, as I understand counsel's argument, the Secretary of State would prefer an earlier date than the date of application, he has only to provide accordingly.
[144] I also entirely agree that the registration authority may allow amendments or deal with an application in accordance with the evidence before them, provided always that they have given every person who might wish to object (or who otherwise has a legitimate interest in the process) a fair opportunity to consider what is proposed and make representations about it.
[145] The final issue was not on the examination paper at all, but it is relevant to the guidance requested on the actual facts of this case--in particular to whether scrubland, 75% of which is inaccessible to the local inhabitants who might wish to use it for lawful sports and pastimes, can possibly qualify as a town or village green. Indeed, it seems that it is that very inaccessibility, and the habitat it provides for wildlife, which makes Miss Robinson so anxious to preserve the Trap Grounds in their present state. Is there some essence of the very expression 'town or village green' which would preclude or at least militate strongly against the registration of such land as a green? My Lords, we have not been asked this question and any view which we express upon it would, I believe, be obiter dictum. I myself have considerable sympathy for the views expressed by my noble and learned friend, Lord Scott of Foscote. The very powerful points made by my noble and learned friend Lord Hoffmann at [39], above depend to a large extent on events since the 1965 Act was passed rather than on the meaning of the phrase at the time when it was enacted. I believe that it would be much better for us to leave this issue to be properly fought out on another day, whether in answer to whatever decision Oxfordshire County Council make in relation to the Trap Grounds or elsewhere.
[146] There are major policy considerations underlying many of the issues raised by this and similar cases: between preserving local amenities of whatever kind for the benefit of the local people and permitting the appropriate development of land, in particular to meet the needs of local people for somewhere to live. Consideration needs to be given to how and in what circumstances land can cease to be a town or village green (as also envisaged in s 13 of the 1965 Act) as well as to how and in what circumstances it can become one. Parliament may not choose to deal with these on this occasion but sooner or later it may have to do so.
[147] In the meantime, I would make no ruling or declaration on issues (i) and (ii), make the declaration proposed by my noble and learned friend Lord Hoffmann on issue (iii), restore the declarations made by Lightman J on issues (iv) and (v), and agree with the rulings of the Court of Appeal on issues (vi), (vii) and (viii). I too would not answer questions (ix) and (x) even to the extent indicated by my noble and learned friend, Lord Hoffmann.
Order accordingly.