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: Lord Hoffmann)
Oxfordshire County Council
v Oxford City Council and another
Judges:
Lord HoffmannLord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Judgment date: 24 May 2006
Decision by:
Lord Hoffmann
THE TRAP GROUNDS
[1] My Lords, this appeal arises out of an application on 21 June 2002 by Miss Catherine Robinson, who lives in North Oxford, to register the Trap Grounds as a town or village green under the Commons Registration Act 1965. The site as it is today does not fit the traditional image of a town or village green. Mr Vivian Chapman, a member of the Bar expert in the law of commons and greens, described it in a report on the application which he wrote for the registration authority, the Oxfordshire County Council:
'The Trap Grounds are nine acres of undeveloped land in North Oxford. They lie between the railway to the west and the Oxford Canal to the east.
About one third . . . is permanently under water . . . This part . . . is usually called "the reed beds". [They] are inaccessible to ordinary walkers since access would require wading equipment. The other two thirds ["the scrubland"] . . . are much drier and consist of some mature trees, numerous semi-mature trees and a great deal of high scrubby undergrowth, much of which is impenetrable by the hardiest walker . . . The scrubland is noticeably less overgrown at the southern end and there is a pond and wet areas in the central eastern part of the scrubland. Throughout the dry parts of the scrubland there are piles of builders' rubble, up to about a yard high, which are mostly covered in moss and undergrowth. The Trap Grounds are approached from the east by a bridge . . . over the canal. From the bridge a track, known as Frog Lane, leads along the northern edge of the reed beds and gives access to a circular path around the scrubland. Off this circular path there are numerous small paths through the undergrowth. Some peter out after a few yards. Some lead to small glades and clearings. I estimate that a total of about 25% of the surface area of the scrubland is reasonably accessible to the hardy walker.'
[2] Not idyllic. But town and village greens are in theory survivals from the mediaeval past, established by immemorial local customs dating back to before the accession of Richard I in 1189. When counsel for the landowner in Mounsey v Ismay (1863) 1 H & C 729, 158 ER 1077 protested that the fields on which the inhabitants of Carlisle claimed a custom of holding horse races in May were arable land, Martin B replied: 'It must be assumed that the custom has existed since the time of Richard the First; and why may it not have been reasonable in the then state of the land?' The Trap Grounds no doubt looked very different before they were cut off, first by the eighteenth century canal and then by the nineteenth century railway, from the great north Oxford common of Port Meadow. In those days Frog Lane was called My Lady's Way and led across the meadow to the nunnery at Godstow where Charles Dodgson and Alice Liddell picnicked and fair Rosamund, mistress of Henry II, lies buried.
VILLAGE GREENS
[3] The traditional village green is a creation of the literature of sensibility in the late eighteenth century. The green at Auburn in Goldsmith's The Deserted Village (1770) is the best example; a place where--
'toil, remitting, lent its turn to play,
And all the village train, from labour free,
Led up their sports beneath the spreading tree!
While many a pastime circled in the shade,
The young contending as the old survey'd;
And many a gambol frolick'd o'er the ground,
And sleights of art and feats of strength went round;
And still, as each repeated pleasure tired,
Succeeding sports the mirthful band inspired . . .'
[4] No doubt there were, and perhaps are, village greens like that, but the law took a more prosaic view of the matter. It was not particularly concerned with the spreading tree and the ancient turf but simply with whether there was an immemorial custom for inhabitants of a parish, borough or similar locality to use the land for sports and pastimes. As Martin B said, the custom had in theory to date from before 1189, but such antiquity could be inferred from proof that the inhabitants had in fact used the land for such purposes for a long period in the past. The inference could be rebutted only by showing that it was impossible for such a custom to have existed in 1189.
[5] The early cases do not use the term 'village green'. In Abbot v Weekly (1666) 1 Lev 176, 83 ER 357 a custom that 'the inhabitants of the vill, time out of memory, & c. had used to dance there at all times of the year at their free will, for their recreation' was held to be a good custom. In Fitch v Rawling (1795) 2 Hy Bl 393, 126 ER 614 the custom was to use some land at Steeple Bumpstead in Essex for 'all kinds of lawful games, sports and pastimes . . . at all seasonable times of the year'. As Halsbury's Laws has said in successive editions (for example 4 Halsbury's Laws (1st edn, 1908) para 1247):
'. . . the essential characteristic of a town or village green is that by immemorial custom the inhabitants of the town, village, or parish should have acquired the right of playing lawful games thereon and enjoying it for purposes of recreation.'
[6] In Mounsey v Ismay (horse racing on arable land on Kingsmoor, outside Carlisle), Virgo v Harford (11 August 1892, unreported) (noted in Hunter The Preservation of Open Spaces, and of Footpaths, and other Rights of Way (1896) pp 181-182) (football, rounders and cricket on 65 acres of open land on a hill outside Walton-in-Gordano in Somerset) and Lancashire v Hunt (1894) 10 TLR 310 (cricket and other games on 160 acres of Stockbridge Common Down) the courts upheld recreational customs on land which bore no resemblance to the village green at Auburn.
[7] The first instance to which we were referred of the use of the term 'village green' in a case or statute was in s 15 of the Inclosure Act 1845 (8 & 9 Vict c 118), which provided that 'no town green or village green shall be subject to be inclosed under this Act'. The Act offered no definition and Mr Woolrych, in his notes on The New Inclosure Act (1846) said that the term did not refer to all the 'grassy plains' on commons which were 'known by the name of greens' but only to the 'little patches' which 'adjoin a town or hamlet and are used in the nature of easements by the inhabitants'. There is no authority on the point but it seems likely that, on what would now be called a purposive construction, 'town green or village green' would have been construed as Woolrych suggested, namely as any land upon which the local inhabitants enjoyed customary rights of recreation. The purpose of inclosure under the 1845 Act was after all to extinguish manorial rights of common over the land inclosed, so that it could be at the free disposal of the owner, but the Act did not extinguish customary rights (see Forbes v Ecclesiastical Comrs for England (1872) LR 15 Eq 51). It was therefore logical to exclude land subject to customary recreational rights from the inclosure procedure.
[8] The increase in the urban population in the nineteenth century made the preservation of open spaces a matter of great public concern. Near the large cities the traditional use of commons for depasturing animals declined and their principal use became the recreation of the people. This use was threatened by owners who recognised no interests in the land apart from those of a declining band of commoners and their own. The House of Commons Select Committee on Open Spaces near the Metropolis (1865) asked why long use of the commons by members of the public for recreation should not give rise to public rights. Why should Hampstead Heath not be the village green of London? The answer was that the law recognised only local customs. Rights of recreation could be established for the benefit of a parish or a town, but not for the public at large. London was too big. As Lord St Leonards LC said in Dyce v Lady Hay (1852) 1 Macq 305 at 309, a claim for all the Queen's subjects 'to go at all times upon the . . . Appellant's property . . . for the purposes of recreation' was: 'a claim so large as to be entirely inconsistent with the right of property . . .'
[9] The Select Committee said in its Second Report that this rule was illogical: it appeared to 'rest upon no very intelligible principle'. But the judges and writers insisted on applying it strictly. In Hammerton v Honey (1876) 24 WR 603 Sir George Jessel MR rejected a claim to rights of recreation over Stockwell Green on the ground (among others) that the evidence did not show that use of the green was confined to inhabitants of Stockwell:
'If you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom.' (See 604.)
[10] In the same year as Hammerton v Honey Mr Charles Elton of Lincoln's Inn wrote a pamphlet on the bill which became the Commons Act 1876 (39 & 40 Vict c 56), in which he said by way of riposte to those who held the same views as the Select Committee:
'There have been some proposals of late years to extend the doctrine of village greens in a very curious way. It was thought that the commons and open fields around London might be secured as public greens by setting up a kind of national-local custom of rambling and playing at games--such as football and donkey-races,--and so the payment of compensation to private owners might be evaded by a legal fiction.' (See Observations on the Bill for the Regulation and Improvement of Commons, 1876 pp 16-17.)
[11] Mr Elton had written a sustained attack on the same heretical doctrine in his Treatise on the Law of Commons and Waste Lands (1868) pp 281-301. The strictest application of the locality rule was in Edwards v Jenkins [1896] 1 Ch 308, in which Kekewich J held that the inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land in Beddington. One parish, one custom. In New Windsor Corp v Mellor [1975] 3 All ER 44 at 47, [1975] Ch 380 at 387 Lord Denning MR thought that Kekewich J had gone too far. 'So long as the locality is certain, that is enough.' But there is no doubt that the locality rule was the pinch-point through which many claims to customary rights of recreation failed to pass.
THE ROYAL COMMISSION
[12] The Report of the Royal Commission on Common Land 1955-1958 (Cmnd 462) (1958) drew attention (in para 19) to the deterioration in many town and village greens:
'Unhappily, although many exquisite greens and small village commons do exist, reality all too frequently falls short of imagination. "Too often, however," it has been said "village greens are neglected and become rank with unmown grass and weeds, or trodden bare, used as dumps for rubbish and disfigured with litter." So far from being untouched, they may find the hand of the twentieth century lying heavy on them.'
[13] The commission recommended (para 404) that 'as the last reserve of uncommitted land in England and Wales, common land [an expression which the commission used to embrace both commons and town and village greens] ought to be preserved in the public interest'. The principal mechanism for preservation was to be a register, maintained by county and county borough councils, which would be a definitive record of all common land and town and village greens. Most of the report is about commons, but three of its references to town and village greens should be noted: (a) There was to be a register of common rights (because 'rights exercisable over [commons] . . . are as variable as their origin' (see para 128)) but no register of rights exercisable over greens. The purpose of greens was simply to 'serve the needs of the local inhabitants for exercise and recreation in attractive surroundings' (see para 368). (b) Many village greens in fact originated not in customary rights but in allotments set aside for recreation in inclosure awards. The commission said (para 373) that there was 'no advantage in perpetuating these distinctions' and that local authorities should be able to maintain such allotments as village greens. (c) The commission said that there were 'probably very few villagers who will not know what they mean by "their green" . . .' and thought that such a claim would seldom be questioned (see para 369). But if it was challenged, 'the burden of proof would in all probability put them to considerable difficulty and expense'. This was presumably a reference to the rule that a customary right for the inhabitants of a locality to use land for 'lawful sports and pastimes' must have been exercised since before 1189.
[14] In order to deal with these three points, the commission proposed (in para 403) a definition of a town or village green:
'Any place which has been allotted for the exercise or recreation of the inhabitants of a parish or defined locality under the terms of any local Act or inclosure award, any place in which such inhabitants have a customary right to indulge in lawful sports and pastimes and in a rural parish any uninclosed open space which is wholly or mainly surrounded by houses or their curtilages and which has been continuously and openly used by the inhabitants for all or any such purposes during a period of at least 20 years without protest or permission from the owner of the fee simple or the lord of the manor.'
[15] Certain points about this proposed definition should be noted. First, there was to be a single concept of a village green, with a definition which could be satisfied in three different ways. Land allotted for recreation under the Inclosure Acts or similar statutes was to be assimilated to customary village greens. Secondly, customary village greens were defined simply as land in which the inhabitants of a parish or defined locality 'have a customary right to indulge in lawful sports and pastimes'. Following the earlier case law, there was no restriction by reference to the size or character of such land. Thirdly, the proposed third limb, allowing 20 years' use as of right as an alternative to proof of custom since 1189, was to be confined to rural parishes and to land 'wholly or mainly surrounded by houses or their curtilages'. The commission obviously felt some concern about allowing any land whatever to become a deemed village green after 20 years' use by local inhabitants for sports and pastimes. They may have foreseen cases like R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 All ER 160, [2004] 1 AC 889 or, indeed, this case, and thought that such land should not become a village green merely because the owner had neglected it for over 20 years.
[16] Besides relieving local inhabitants of the burden of proving immemorial custom, the Royal Commission wanted to encourage local authorities or parish councils to claim village greens rather than leaving it to individual initiative. So they recommended that if a local authority or parish council formally claimed land as a town or village green, it should be provisionally registered and title should thereupon vest in the local authority. That would enable the local authority immediately to maintain the green as if it had been acquired under the Open Spaces Act 1906 and make by-laws for its management (see para 372). Anyone with an interest in the land could then object to the provisional registration and have the objection determined by a Commons Commissioner but otherwise it would become final.
THE 1965 ACT
[17] The recommendations of the Royal Commission were largely, though not entirely, adopted in the 1965 Act. Section 1(1) provided for the registration of common land, town or village greens and rights of common. An application to register in proper form would be followed as of course by a provisional registration which would be publicly notified. If there were no objections, the provisional registration would become final. Otherwise, objections and disputes would be determined by Commons Commissioners and the provisional registrations confirmed or expunged accordingly. By s 4(6), applications for provisional registration had to be made before a prescribed date, which for most people was 2 January 1970. By s 1(2), after another prescribed date which, in the event, was 31 July 1970: '(a) 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 . . .'
[18] In Re Turnworth Down [1977] 2 All ER 105 at 111-112, [1978] Ch 251 at 260-261, Oliver J suggested in passing that this simply meant that the land was not deemed to be a village green but did not exclude the possibility that it actually was. The same opinion was expressed by Pill LJ in R v Suffolk CC, ex p Steed (1996) 75 P & CR 102 at 112-113. But this would not in my opinion be in accordance with the scheme of the 1965 Act. I think that the effect of non-registration was to extinguish such rights of recreation as may have existed by custom or statutory allotment and were registrable on the appointed day.
[19] On the other hand, by s 10, the registration of land as common land or as a town or village green was to be 'conclusive evidence of the matters registered, as at the date of registration'. So the register was to be definitive, both positively and negatively: registration was conclusive evidence that on that date it was a town or village green and non-registration was conclusive evidence that it was not.
[20] In its definition of a 'town or village green' for the purposes of the 1965 Act, s 22 departed from the recommendation of the Royal Commission. The conclusive presumption arising from upwards of 20 years' use was not confined to rural parishes or land surrounded by houses or their curtilages:
'In this Act, unless the context otherwise requires . . . "town or village green" means land [(a)] which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or [(b)] on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or [(c)] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years.'
(I have inserted into this definition the letters by which the alternative grounds upon which land may qualify for registration are usually designated.)
[21] The 1965 Act did not vest the ownership in all town and village greens in the local authority. If anyone could satisfy a Commons Commissioner that he was the owner of the soil, he would be registered as owner. It was only in cases in which no one could prove that he was owner that the land vested in the local authority, which became entitled to manage the green as if it was a public open space (see s 8(4)).
NEW TOWN OR VILLAGE GREENS
[22] Section 13 provided for events happening after the register had become final:
'Regulations under this Act shall provide for the amendment of the registers maintained under this Act where--(a) any land registered under this Act ceases to be common land or a town or village green; or (b) any land becomes common land or a town or village green; or (c) any rights registered under this Act are apportioned, extinguished or released, or are varied or transferred in such circumstances as may be prescribed . . .'
[23] Pursuant to s 13, the Minister of Housing and Local Government made the Commons Registration (New Land) Regulations 1969, SI 1969/1843. Regulation 3(1) provided for applications to register land which had become common land or a town or village green after 2 January 1970, the last date on which land which was already common land or a town or village green could have been originally registered. The notes appended to the 1969 regulations gave examples of how land could become a town or village green after 2 January 1970. One was 'By the actual use of the land by the local inhabitants for lawful sports and pastimes as of right for not less than 20 years' (see note 5(3) to Form 30). The 1969 regulations provided a simple procedure for such applications. There was a form of application to be sent to the registration authority (see reg 3(7)), of which notice was required to be published, posted upon the land and sent to the land owner and other interested parties (see reg 5(4)). Objections were to be sent to the applicant, who was to be given an opportunity to deal with the points which they raised and any grounds on which the registration authority considered that prima facie the application should be rejected. No procedure for adjudicating upon the applications and objections was prescribed.
PROOF OF USER
[24] The registration of village greens which had come into existence by virtue of 20 years' user as of right was at first restricted by the decisions of Carnwath J and the Court of Appeal in R v Suffolk CC, ex p Steed (1995) 70 P & CR 487; (1996) 75 P & CR 102, which held that user 'as of right' meant that the people indulging in sports and pastimes on the land must have believed that they were exercising a right claimed by the inhabitants of a particular locality. This requirement was, I think, intended to be, and was in practice, very difficult to satisfy. As in the case of the metropolitan commons in the Victorian era, people who went upon open land in urban areas for recreational purposes tended to think (in so far as they thought about the matter at all) that they were exercising a general public right.
[25] In R v Oxfordshire CC, ex p Sunningwell Parish Council [1999] 3 All ER 385, [2000] 1 AC 335, however, your Lordships' House rejected the requirement of a subjective state of mind by people using the land and thereafter, as Carnwath LJ observed in this case ([2005] EWCA Civ 175 at [55], [2005] 3 All ER 961 at [55], [2006] Ch 43) registration of new village greens became 'an area of unusually vigorous legal activity'. Once 20 years' user had been established, the only substantial hurdle which the applicant for registration had to overcome was, as it had been in the Victorian cases on customary greens, proof that the user had been by the inhabitants of a defined locality. This requirement was relaxed by the House in the Sunningwell case [1999] 3 All ER 385 at 397, [2000] 1 AC 335 at 357-358 only to the extent of saying that not all the users needed to be inhabitants of the locality in question. It was sufficient that the land was used 'predominantly' by such inhabitants.
THE AMENDMENT OF SECTION 22
[26] Soon after the decision in the Sunningwell case, the question of town and village greens was raised in Parliament. This was in the debates on the bill which became the Countryside and Rights of Way Act 2000. No one voiced any concern about the construction which the House in its judicial capacity had given to the 1965 Act. On the contrary, the only question raised in debate was whether the locality rule did not make it too difficult to register new village greens. In your Lordships' House, Baroness Miller of Chilthorne Domer described the need for the users to be predominantly from the local community, defined by reference to a recognised ecclesiastical parish or local government area, as a 'loophole' in the 1965 Act which 'allow[s] greens to be destroyed' (see 617 HL Official Report (5th series) col 865 (16 October 2000)). The government was sympathetic and introduced a suitable amendment which was adopted at the report stage (619 HL Official Report (5th series) col 513 (16 November 2000)). This became s 98 of the 2000 Act, which amended s 22 of the 1965 Act by substituting a new third limb of the definition (class (c)):
'(1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either--(a) continue to do so, or (b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.'
No period has yet been prescribed under para (b).
[27] '[A]ny neighbourhood within a locality' is obviously drafted with a deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries. I should say at this point that I cannot agree with Sullivan J in R (on the application of Cheltenham Builders Ltd) v South Gloucestershire DC [2003] EWHC 2803 (Admin), [2004] JPL 975 that the neighbourhood must be wholly within a single locality. That would introduce the kind of technicality which the amendment was clearly intended to abolish. The fact that the word 'locality' when it first appears in sub-s (1A) must mean a single locality is no reason why the context of 'neighbourhood within a locality' should not lead to the conclusion that it means 'within a locality or localities'.
[28] I mention for the sake of completeness that a new Commons Bill which repeals and replaces the 1965 Act is now before Parliament.
THE INQUIRY
[29] I come next to the procedure which was followed in this particular case. Although the 1969 regulations do not prescribe any particular method of adjudication, registration authorities in difficult cases tend in practice to engage the services of a member of the Bar to conduct a non-statutory inquiry with a view to advising the authority on the facts and the law (see R v Oxfordshire CC, ex p Sunningwell Parish Council [1999] 3 All ER 385 at 389, [2000] 1 AC 335 at 348). This procedure is sanctioned by a number of judicial decisions and in R (on the application of Cheltenham Builders Ltd) v South Gloucestershire DC [2003] EWHC 2803 (Admin), [2004] JPL 975 at 986-987 Sullivan J decided that in some cases fairness would make an oral hearing not merely an option but a necessity. Mr Vivian Chapman, who had also been the inspector in the Sunningwell case, held an inquiry and produced a report. There was only one objector: the city council, as owner of the land.
[30] Miss Robinson's original application had been to register the whole of the Trap Grounds, including the submerged reed beds. At the hearing she applied to amend the application to exclude the reed beds and a ten-metre strip on the west boundary of the scrubland, on which the county council wanted to build an access road to a new school to the south. Mr Chapman decided that he (or the registration authority in whose name he was acting) had power to allow an amendment but refused leave on the ground that the owner of the land (the city council) was entitled to have the status of the whole application land determined and not be faced with the possibility of a later application in respect of land which had been excluded.
[31] The application form prescribed by the regulations contains the question (in Pt 4): 'On what date did the land become a town or village green?' Miss Robinson, apparently on the strength of a publication by the Open Spaces Society, Getting Greens Registered (para 59) wrote '1 August 1990'. This was calculated as 20 years after the period for original registration had expired. At the inquiry, however, it became clear that she was relying on the period of 20 years before the date of her application for registration on 21 June 2002 and Mr Chapman dealt with the application accordingly.
[32] Mr Chapman found that the scrubland had been proved to have been used for lawful sports and pastimes for more than 20 years before the date of application and recommended to the county council that it should be registered as a village green. But the reed beds and Frog Lane had not been so used and should be excluded from the registration.
THE COUNTY COUNCIL'S RESPONSE
[33] The county council then appears to have sought a second opinion on some of the legal points which had arisen. Mr George Laurence QC advised that the 20-year period could be any 20-year period ending after 1 August 1970 and before the date of the application and that an applicant must decide which period she wants to rely on. If she could not prove that it became a green by the date specified in the application, it must be rejected and she could not rely on evidence of use at a later date. He also advised that the authority could register part of the land specified in the application only if it was 'not substantially different' from the application land.
[34] Mr Chapman, sent this advice for comment, adhered to his recommendation. In his opinion, the relevant 20-year period was, even before the 2000 amendment, the period before the date of the application. Miss Robinson's answer to Pt 4 of the form (1990) was therefore, in law, a mistake. But the mistake had caused no prejudice to the city council, which had agreed that 20 years before 2002 was the relevant period and had conducted its case accordingly. Mr Chapman also rejected the opinion that the authority could not register a part of the land specified in the application, saying that it must have power to register a smaller area. It would be pointless to require a new application.
APPLICATION FOR DECLARATIONS AND DIRECTIONS
[35] In view of this conflicting advice, the registration authority applied to the court for directions. It decided that it should also ask for rulings and guidance on various other matters relevant to both whether the land should be registered and what the consequences of registration would be. As a result, Lightman J ([2004] EWHC 12 (Ch), [2004] Ch 253, [2004] 2 WLR 1291) was faced with an application for ten rulings: (i) whether the relevant inhabitants had rights to indulge in lawful sports and pastimes on land which had become a class (c) town or village green; (ii) whether land which had become a class (c) green fell within the scope of s 12 of the Inclosure Act 1857 (20 & 21 Vict c 31) and s 29 of the Commons Act 1876; (iii) a ruling as to the meaning of the words 'continue to do so' in s 22 of the 1965 Act, as amended, for which purpose the court was asked to rule whether (in the absence of regulations made under the section), the lawful sports and pastimes had to continue to (a) the date of the application to register, or (b) the date of registration, or (c) some other, and if so what, date; (iv) a ruling as to whether all applications for registration of land as a class (c) green made on or after 30 January 2001 automatically engaged (and engaged only) the amended definition in s 22 of the 1965 Act; (v) a ruling as to whether the application might as a matter of law succeed on the basis that the land had become a green on 1 August 1990, or whether (subject to (vi) below) an application which specified in the application form a commencement date for the green that was earlier than the date immediately preceding the date of the application had to fail; (vi) a ruling as to whether the county council had power to treat the application as if a different date (namely a date immediately preceding the date of the application) had been specified in the application as the commencement date for the green, and to determine the application on that basis; (vii) a ruling as to whether, as a matter of law, it was open to the county council to permit the application to be amended so as to refer to some lesser area, and if so, according to what criteria; (viii) a ruling as to whether, as a matter of law, it was open to the county council (without any such amendment being made) to accept the application in respect of, and to register as a green, part only of the land included in the application, and, if so, according to what criteria; (ix) guidance as to how the county council had to approach the application in the light of (a) the evidence in relation to user of the main track and subsidiary tracks, and (b) the fact that some of the land was not reasonably accessible; (x) guidance as to the relevance of the existence or potential for the existence of public rights of way. (We are told that the requests for what became rulings (i) and (ii) were added during the hearing at first instance at the suggestion of the judge, who took the view that the answers would inform his approach to what became rulings (iv) and (v).)
[36] Lightman J made declarations in response to each of these questions. Each of the parties appealed against one or more of these rulings and the Court of Appeal, in a judgment given by Carnwath LJ, allowed the appeal in respect of some of the declarations and dismissed it in respect of others. All parties appeal to your Lordships' House.
WHAT IS A VILLAGE GREEN?
[37] In R (on the application of Beresford) v Sunderland City Council [2004] 1 All ER 160, [2004] 1 AC 889, my noble and learned friend Lord Walker of Gestingthorpe said (at [92]) that the registration of a ten-acre grass arena in an urban area as a town or village green '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'. Others may also feel a visceral unease at the lack of resemblance between the land registered in that case (and sought to be registered in this one) and the 'traditional' village green whose passing was lamented by Goldsmith in 1770. Perhaps, one might feel, the concept could be narrowed by importing into the definition some of the qualities which are associated with the ordinary use of the term defined--what might be called an 'Auburn test', not expressly stated in the definition but implied from the choice of the words 'town or village green'.
[38] My Lords, it is true that in construing a definition, one does not ignore the ordinary meaning of the word which Parliament has chosen to define. It is all part of the material available for use in the interpretative process. But there are several reasons why I think that it would be unwise for your Lordships, at any rate without full argument, to embark upon the process of introducing some elements of the traditional village green into the statutory definition.
[39] First, your Lordships will observe that the question of whether the Trap Grounds failed, by reason of their current character, to qualify as land capable of becoming a town or village green was not among the ten questions on which the parties sought rulings from the House. It was not discussed in any of the printed cases. Secondly, this is not surprising because there is no authority, either at common law or on earlier statutes which used the term 'village green', in which such a restricted meaning was applied. Thirdly, any restriction derived from the ordinary meaning of 'village green' must apply to all three limbs of the definition, but the Royal Commission plainly thought that all land with customary rights of recreation (such as Stockbridge Common Down) would fall within class (b). Fourthly, Parliament must have been alerted to the width of the definition by the Royal Commission's proposed restriction for class (c) greens but chose to define them without restriction. Fifthly, even if Parliament had not noticed in 1965, the subsequent practice of the very learned Commons Commissioners and the courts would have shown how the definition operated. On 19 May 1977 Mr CA Settle QC, as Commons Commissioner, registered as falling within the statutory definition some rocks at Llanbadrig, Ynys Mon, which had been used by the inhabitants of the locality to moor boats while engaged in the pastime of boating. On 24 May 1976 the Chief Commissioner Mr Squibb ordered registration of land which the local authority wanted to use for housing purposes but upon which there was a custom of having an annual Guy Fawkes bonfire. No doubt there are other examples in the archive of decisions of the Commons Commissioners. In New Windsor Corp v Mellor [1975] 3 All ER 44, [1975] Ch 380 the Court of Appeal confirmed the registration of a car park in Windsor as a customary (class (b)) green. Sixthly, Parliament in 2000 showed no unease at the way registration was operating. Seventhly, if Parliament thinks that the definition needs to be narrowed, it will have an immediate opportunity to do so. Eighthly, the terms of the proposed Auburn test would be inherently uncertain. To say that the registration authority will recognise a village green when it sees one seems inadequate.
[40] My Lords, I therefore turn to the issues raised by the ten points on which declarations or guidance were sought. They may be divided into four groups. The first concerns the 20-year period: when must it have ended? The original definition did not specify. The 2000 amendment says 'and continuing' but does not say until when. The second group concerns the effect of registration. Do the local inhabitants obtain any rights and is a registered green protected by Victorian legislation enacted to prevent nuisance and encroachment on town and village greens? The third group raises some procedural questions about the form of applications and the powers and duties of the registration authority and the fourth group seeks guidance on the correct approach to certain kinds of evidence about user.
THE 20-YEAR PERIOD
[41] Section 22 as originally enacted said that land which the inhabitants of the locality have used for sports and pastimes 'for not less than twenty years' was a village green. It did not specify when that period should end. In New Windsor Corp v Mellor the Court of Appeal thought that it meant 20 years before the passing of the Act. In Ministry of Defence v Wiltshire CC [1995] 4 All ER 931 at 938 Harman J thought it meant 20 years before the date of the application for registration: see also R v Norfolk CC, ex p Perry (1996) 74 P & CR 1 at 5 (Dyson J) and Caerphilly County BC v Gwinnutt (16 January 2002, unreported) (Judge Hywel Moseley). But Mr Edwards, who appeared for Miss Robinson, and Mr Laurence, who appeared for the registration authority, said that as the definition did not specify any terminal date, it meant any period of 20 years. On the expiry of a 20-year period of user, the land became a village green. If it had become a green before 1970 and had not been registered, it would be deemed by s 1(2)(a) not to have been a village green on the appointed day. But any 20-year period expiring after the appointed day would do.
[42] The amended s 22, with the addition of the words 'and . . . continue to do so', plainly cannot be satisfied by any period of 20 years. It must be a period continuing until a given date, although, as I shall explain, the precise date is controversial. So one might have thought that the question of whether one could have taken any 20 years under the old law was now academic. But Mr Edwards says that if the land became a green under the old law, it would have remained a green thereafter. Once a village green, always a village green. It could not be retrospectively deprived of that status by the amendment of the definition in 2000. Lightman J agreed (see [2004] Ch 253 at [66]-[67], [2004] 2 WLR 1291).
[43] In my opinion it is unnecessary to decide when the 20-year period under the old law would have expired because the argument that it would have 'become a village green' is a misreading of ss 13 and 22 of the 1965 Act. Section 22 defines a village green for the purposes of the Act. When s 13 speaks of amendment of the register when land 'becomes' a village green, it means that by reason of events which have happened after 1970, the land now satisfies the definition. That makes it registrable. But, because the register is conclusive, it does not become a village green until it has been registered. The Act was a Commons Registration Act, not an act to change the substantive law of commons and village greens, although, as Carnwath LJ pointed out, the effect of the conclusive presumption in s 10, read with s 22, may be to create rights in respect of land to which they would not have attached without registration. But one purpose of the 1965 Act was to enable buyers of land and other members of the public to ascertain from the register whether land was common land or a village green. It would defeat that purpose if unregistered greens could come into existence after the appointed day. I agree with Carnwath LJ's analysis ([2005] 3 All ER 961 at [100], [2006] Ch 43):
'. . . The 1965 Act created no new legal status, and no new rights or liabilities, other than those resulting from the proper interpretation of s 10. Since that section only takes effect in relation to any particular land on registration, there is no legal basis for treating that land as having acquired village green status by virtue of an earlier period of qualifying use. The mere fact that it would at some earlier time have come within the statutory definition is irrelevant if it was not registered as such . . .'
CONTINUE UNTIL WHEN?
[44] Since 2001, then, the land must satisfy the definition as amended by the 2000 Act. The inhabitants must 'continue' to use the land for sports and pastimes. Continue until when? Carnwath LJ said that user had to continue until the date of registration. But that would mean that any well-advised landowner, on receipt of an application to register, would erect barbed wire or take other steps to prevent the user from continuing, or at any rate continuing as of right. In R (on the application of Cheltenham Builders Ltd) v South Gloucestershire DC [2004] JPL 975 at 991 Sullivan J said, accurately as it seems to me, that such a construction would make nonsense of the Act. Carnwath LJ did not accept that his construction was 'so obviously unreasonable, or contrary to the legislative intention, that it must be rejected' (see [2005] 3 All ER 961 at [94], [2006] Ch 43). He gave three reasons for adopting it. First, the Secretary of State had power to prescribe a different period. But that seems to me neutral as to what the default position should be. Secondly, the history of the 1965 Act gives 'no support for a broad interpretation of the provisions for new greens'. That sounds like an attempt to refight the battle of Sunningwell green. Thirdly, a construction which made dedication of a new green in effect voluntary at the time of registration would 'help to provide an answer to possible human rights objections'. As I shall explain, I do not think that there are valid human rights objections. I would therefore reject the Court of Appeal's construction as irrational. In my opinion the correct date is that of the application. That appears to be assumed by cl 15(3)(b) of the Commons Bill now before Parliament.
DOES REGISTRATION CREATE ANY RIGHTS?
[45] Questions (i) and (ii), which raise the questions of whether the registration creates any rights and whether the registered land will be a town or village green for the purposes of the Victorian statutes, are not of immediate concern to the county council. Such questions will arise only once the land is registered and the county council is functus officio. I share the concern of my noble and learned friends Lord Scott of Foscote and Baroness Hale of Richmond that the House should not make declarations of abstract propositions of law. But the interest of the city council in these questions is concrete in the most literal sense. They wish to build houses on the land. If registration creates no rights and the land does not fall within the Victorian statutes, they will be able to do so.
If it does create rights or fall within the statutes, they will not be able to use the land in a way which wholly excludes the local inhabitants from using it for any sports or pastimes whatever. Accordingly, the city council have a real and immediate interest in having the question resolved and there is an appropriate contradictor, namely Miss Robinson. In the circumstances I consider that it would be a proper exercise of the House's discretion to answer questions (i) and (ii) and, as there has been no objection by anyone, I think that your Lordships should do so.
[46] Section 1(1) of the 1965 Act provides that land which is a town or village green shall be registered. Section 3(1) says that there shall be a register of town or village greens and that regulations may require or authorise a registration authority to note on the register 'such other information as may be prescribed'. Section 10 provides that registration as a town or village green shall be 'conclusive evidence of the matters registered'. In the case of a town or village green, the registration states simply that the land is a green. No other information is prescribed.
[47] What rights does registration create? In New Windsor Corp v Mellor [1975] 3 All ER 44 at 51, [1975] Ch 380 at 392 Lord Denning MR said that registration 'confers no rights in itself. All is left in the air'. Lord Denning MR said that the explanation was that 'Parliament intended to pass another statute dealing with these and other questions on common land and town or village greens'. If there was delay passing such a statute, Lord Denning MR said he would be 'tempted to infer' that Parliament intended that land registered as a town or village green should be available for sports or pastimes for the inhabitants. Browne LJ said ([1975] 3 All ER 44 at 54, [1975] Ch 380 at 395) he agreed that without further legislation, registration conferred no rights on the public.
[48] It is by no means clear that Parliament contemplated further legislation about rights over village greens. Section 1(3)(b) contemplated further legislation on the vesting of unclaimed common land, but sub-s (3)(a) appears to regard the provisions for the vesting of unclaimed town and village greens (s 8(4)) as sufficient. Section 15(3) contemplates further legislation affecting the exercise of rights of common, but there is no suggestion of further legislation about rights over village greens. Nor does Hansard throw much further light on the question. There are several references to registration being a 'first stage' and to a later measure 'for the better management and improvement of common land' (second reading debate, 263 Official Report (5th series) col 90 (9 February 1965)) but no indication of what might be done about village greens.
[49] So one has to look at the provisions about greens in the 1965 Act like those of any other legislation, assuming that Parliament legislated for some practical purpose and was not sending Commons Commissioners round the country on a useless exercise. If the Act conferred no rights, then the registration would have been useless, except perhaps to geographers, because anyone asserting rights of recreation would still have to prove them in court. There would have been no point in the conclusive presumption in s 10. Another possibility is that registration conferred such rights as had been proved to support the registration but no more. So, for example, if land had been registered on the strength of a custom to have a bonfire on Guy Fawkes Day, registration would confer the right to have a bonfire but no other rights. But this too would make the registration virtually useless. Although the 1965 Act provides for the registration of rights of common, it makes no provision for the registration of rights of recreation. One cannot tell from the register whether the village green was registered on the basis of an annual bonfire, a weekly cricket match or daily football and rounders. So the establishment of an actual right to use a village green would require the inhabitants to go behind the registration and prove whatever had once satisfied the Commons Commissioner that the land should be registered.
[50] In my view, the rational construction of s 10 is that land registered as a town or village green can be used generally for sports and pastimes. It seems to me that Parliament must have thought that if the land had to be kept available for one form of recreation, it would not matter a great deal to the owner whether it was used for others as well. This would be in accordance with the common law, under which proof of a custom to play one kind of game gave rise to a right to use the land for other games (see R v Oxfordshire CC, ex p Sunningwell Parish Council [1999] 3 All ER 385 at 396-397, [2000] 1 AC 335 at 357).
[51] This does not mean that the owner is altogether excluded from the land. He still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants. There has to be give and take on both sides. Fitch v Fitch (1798) 2 Esp 543, 170 ER 449 was a sequel to Fitch v Rawling (1795) 2 Hy Bl 393, 126 ER 614, in which the custom of playing cricket on land at Steeple Bumpstead had been established. The evidence was that the defendants had trampled the grass which the owner had mowed, thrown the hay about and mixed some of it with gravel. Heath J said ((1798) 2 Esp 543 at 544, 170 ER 449 at 449-450):
'The inhabitants have a right to take their amusement in a lawful way. It is supposed, that because they have such a right, the plaintiff should not allow the grass to grow. There is no foundation in law for such a position. The rights of both parties are distinct, and may exist together. If the inhabitants come in an unlawful way, or not fairly, to exercise the right they claim of amusing themselves, or to use it in an improper way, they are not justified under the custom pleaded . . .'
[52] The judge asked the jury to decide ((1798) 2 Esp 543 at 545, 170 ER 449 at 450) 'Whether the defendant had entered the close in the fair exercise of a right, or in an improper way' and the jury found for the plaintiff.
[53] Mr George QC, who appeared for the city council, submitted that there was a general presumption against interference with property rights without clear words. (He also relied upon the Human Rights Act 1998, to which I shall return later.) But the primary purpose of the 1965 Act, as applied to town and village greens, was not to create new rights which override those of the owner. It was to create a register of town and village greens which would include all land over which statutory or customary rights of recreation existed or probably existed. That would protect both the interests of the local inhabitants (so that public open spaces were not lost with the fading of memory) and also the interests of owners and buyers of land, who could clear their titles and rely upon the register, without being surprised by claims of public right of which they had been unaware. For this purpose, it was in my view a necessary implication that land conclusively presumed to be a village green should be subject to the rights which the statute treated as creating a village green, namely the right to indulge in sports and pastimes. This was the opinion of Pill LJ in R v Suffolk CC, ex p Steed (1996) 75 P & CR 102 at 114-115, Dyson J in R v Norfolk CC, ex p Perry (1996) 74 P & CR 1 at 7 and Lightman J in this case ([2004] QB 253, [2004] 2 WLR 1291). I agree.
THE VICTORIAN STATUTES
[54] Section 12 of the Inclosure Act 1857 recited that it was expedient to provide 'summary means of preventing nuisances' on town and village greens and land allotted for recreation. Therefore:
'If any person wilfully cause any injury or damage to any fence of any such town or village green or land, or wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay any manure, soil, ashes, or rubbish, or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use or enjoyment thereof as a place for exercise and recreation, such person shall for every such offence, upon a summary conviction thereof [pay a fine].'
[55] Further provision for the protection of town and village greens was made by s 29 of the Commons Act 1876:
'An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance, and if any person does any act in respect of which he is liable to pay damages or a penalty under section 12 of the Inclosure Act 1857, he may be summarily convicted thereof upon the information of any inhabitant of the parish in which such town or village green or recreation ground is situate, as well as upon the information of such persons as in the said section mentioned.'
[56] The first question is whether the effect of s 10 of the 1965 Act is to apply these statutes to land registered as a town or village green. I agree with Lightman J and the Court of Appeal that it does. There is no special definition of a town and village green in the 1857 or 1876 Acts which might suggest that when s 10 of the 1965 Act said that registration was to be conclusive evidence of the matters registered, and the matter registered was that the land was a village green, Parliament did not intend that it should be a village green for the purposes of the 1857 and 1876 Acts.
[57] There is virtually no authority on the effect of the Victorian legislation. The 1857 Act seems to have been aimed at nuisances (bringing on animals or dumping rubbish) and the 1876 Act at encroachments by fencing off or building on the green. But I do not think that either Act was intended to prevent the owner from using the land consistently with the rights of the inhabitants under the principle discussed in Fitch v Fitch (1798) 2 Esp 543, 170 ER 449. This was accepted by Sullivan J in R (on the application of Laing Homes Ltd) v Buckinghamshire CC [2003] EWHC 1578 (Admin), [2004] 1 P & CR 573 at [52]. In that case the land was used for 'low-level agricultural activities' such as taking a hay crop at the same time as it was being used by the inhabitants for sports and pastimes. No doubt the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so 'as of right'. But, with respect to the judge, I do not agree that the low-level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes for the purposes of s 22 if in practice they were not. Nor do I follow how the fact that, upon registration, the land would become subject to the 1857 and 1876 Acts can be relevant to the question of whether there has been the requisite user by local inhabitants for upwards of 20 years before the date of the application. I have a similar difficulty with para 141 of the judgment of Judge Howarth in Humphreys v Rochdale Metropolitan BC (18 June 2004, unreported), in which he decided that acts of grazing and fertilising by the owner which, in his opinion, would have contravened the 1857 and 1876 Acts if the land had been a village green at the time, prevented the land from satisfying the s 22 definition.
HUMAN RIGHTS
[58] Mr George submitted that a system of prescription by which land could after 20 years user become subject to recreational rights and the Victorian statutes was inconsistent with the human right of an owner of land not to be 'deprived of his possessions' except on the restricted grounds allowed by art 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). Section 3 of the 1998 Act therefore required the 1965 Act to be construed in a way which did not produce such an inconsistency. The way to achieve this result was to read s 10 as conferring no rights and as not applying the Victorian statutes.
[59] Before a court has to resort to s 3, it must first decide that an ordinary reading of the statute would be inconsistent with convention rights. But I do not think that the construction I have suggested would infringe any of a landowner's rights. (I ignore the fact that the city council is a public authority, since obviously the statute must have the same meaning whoever owns the land.) In support of this argument, Mr George relied principally upon the recent decision of the European Court of Human Rights in JA Pye (Oxford) Ltd v UK [2005] 3 EGLR 1. The court there held (by a majority of four to three) that the extinction of an owner's title to registered land by adverse possession was a deprivation of property which could not be justified. But that case is readily distinguishable. The European court stressed two matters: first, that the applicant's rights over the land were entirely extinguished and, secondly, that title was transferred by operation of law to another private individual. The first made it a 'deprivation' and the second made it difficult to justify as a control of 'the use of property' in the general interest. In the present case, first, the owner retains his title to the land and his right to use it in any way which does not prevent its use by the inhabitants for recreation and, secondly, the system of registration in the 1965 Act was introduced to preserve open spaces in the public interest.
QUESTIONS OF PROCEDURE
[60] It will be remembered that these proceedings began because Mr Laurence and Mr Chapman disagreed over whether Miss Robinson should have been allowed to prove user for a period different from that specified in Pt 4 of her application form. That particular question has been resolved by the answer which your Lordships have given to the question of substantive law, namely that the relevant definition was that specified in s 22 as amended in 2000 and that the only period upon which Miss Robinson could have relied was a period of upwards of 20 years ending with the date of her application. At the inquiry it was recognised, not least by the city council, that the statement on the application form that the land had become a green in 1990 was out of date and wrong and that it was best to ignore it.
[61] There remain, however, more general questions about the power of the registration authority (acting by its inspector) to allow amendments to the application form and to register an area of land different from that originally claimed. It is clear from the 1969 regulations that the procedure for registration was intended to be relatively simple and informal. The persons interested in the land and the inhabitants at large had to be given notice of the application and the applicant had to be given fair notice of any objections (whether from the land owner, third parties or the registration authority itself ) and the opportunity to deal with them. Against this background, it seems to me that the registration authority should be guided by the general principle of being fair to the parties. It would be pointless to insist upon a fresh application (with a new application date) if no prejudice would be caused by an amendment, or if any prejudice could be prevented by an adjournment to allow the objectors to deal with points for which they had not prepared. I agree with the approach taken by Mr Chapman and the general remarks of Carnwath LJ [2005] 3 All ER 961 at [101]-[109], [2006] Ch 43. In case there should be any doubt, I add two footnotes. First, there is no rule that the amended application must be for substantially the same land as the original application. If it relates to a larger or different piece of land, the inspector or registration authority may well think that fairness requires republication of a new application. But the matter remains one for the exercise of their discretion. Secondly, the registration authority has no investigative duty which requires it to find evidence or reformulate the applicant's case. It is entitled to deal with the application and the evidence as presented by the parties.
[62] I also agree with the Court of Appeal that the registration authority is entitled, without any amendment of the application, to register only that part of the subject premises which the applicant has proved to have been used for the necessary period. It is hard to see how this could cause prejudice to anyone. Again, I add that there is no rule that the lesser area must be substantially the same or bear any particular relationship to the area originally claimed.
EVIDENTIARY MATTERS
[63] The statutory question is whether 'a significant number' of the inhabitants of a locality or a neighbourhood have 'indulged in lawful sports and pastimes as of right'. The question as to what is meant by 'as of right' was considered by the House in R v Oxfordshire CC, ex p Sunningwell Parish Council [1999] 3 All ER 385, [2000] 1 AC 335. So was the question of what 'sports and pastimes' may be taken into account. The present question concerns what counts as indulging in such sports and pastimes 'on' the land: must the 'significant number' of inhabitants have set their feet everywhere on the land and must such activity be exclusively referable to indulging in sports and pastimes rather than exercising or creating rights of way?
[64] In the present case, Mr Chapman's findings of fact were that 'the scrubland has been used throughout the 20-year period to a material extent for informal recreation by local people'. This was established by the evidence and furthermore:
'Standing back and applying common sense, it seems highly probable that such a disused and unprotected open area on the edge of a densely populated part of Oxford would be used by local people for dog walking, children's play and general informal recreation . . . The character of the scrubland has changed over the 20 year period in that it has become more overgrown with maturer vegetation. There have always been beaten tracks across the scrubland, but it has always been possible to leave the tracks and wander generally over the land, and many users have done so.'
[65] Mr Chapman dealt with the questions on which guidance was sought under questions (ix) and (x) at the end of his report. First, on the significance of footpath use:
'The city council argues that the evidence of recreational user of the Trap Grounds amounts to user of defined routes for the purpose of passage and not to general recreational user of the whole site. With regard to Frog Lane, I consider that this is a good point. Frog Lane, according to the evidence, has predominantly been used as a route for access to and egress from the scrubland rather than for its own intrinsic recreational qualities. This is consistent with its history as a road to the nunnery and latterly to the breakers' yard. Its very name suggests that use has been as a right of way rather than as a town or village green. However, I do not consider that this analysis holds good for the scrubland itself. It is true that, at present, there is a main track which circles the scrubland. However, this track appears to be a relatively recent creation . . . Further, there is strong evidence that many users do not stay on the main track but wander onto subsidiary tracks and enter the various glades and clearings which are to be found within the scrubland. I do not consider that the user of the scrubland by local people can realistically be characterised as the exercise of a right of way along a defined route.'
[66] Secondly, Mr Chapman dealt with the inaccessibility of a good deal of the scrubland:
'The city council argue that the scrubland is now so overgrown that the majority of it is inaccessible and that this in itself precludes registration as a green. As noted above, my estimate is that about 25% of the total area is reasonably accessible, the rest consisting of trees and scrub. In my view, the question whether land has become a town or village green cannot be determined by a mathematical assessment of the amount of the land which is open to recreation . . . Where the recreational use is informal and consists of activities such as walking, with or without dogs, children's play, exploring and watching wild life, I do not see why much more densely vegetated land should not be capable of being subject to recreational rights, either by custom or prescription. In my view, it is necessary to look at the words of the statutory definition and to ask whether the scrubland, considered as a whole, is land which falls within that definition. In my view, the evidence proves that the recreational use of the scrubland is, and has been over the relevant 20-year period, sufficiently general and widespread, by way of use not only of the main track but also of minor tracks, glades and clearings, to amount to recreational use of the scrubland viewed as a whole.'
[67] This is not an application for judicial review of Mr Chapman's decision and your Lordships are not invited to express a view on whether, on the facts, he was entitled to reach the conclusions which he did. For my part, in the absence of an inspection or at least photographs of the site, I would be very reluctant to do so. If the area is in fact intersected with paths and clearings, the fact that these occupy only 25% of the land area would not in my view be inconsistent with a finding that there was recreational use of the scrubland as a whole. For example, the whole of a public garden may be used for recreational activities even though 75% of the surface consists of flower beds, borders and shrubberies on which the public may not walk.
[68] Instead, your Lordships are invited to provide guidance on the correct approach to the evidence. But I share with Carnwath LJ a reluctance to offer what would amount to the equivalent of a Planning Policy Statement from the Office of the Deputy Prime Minister. Lightman J made a number of sensible suggestions about how such evidence might be evaluated and the judgments of Sullivan J likewise contain useful common sense observations; for example, on the significance of the activities of walkers and their dogs (see R (on the application of Laing Homes Ltd) v Buckinghamshire CC [2004] 1 P & CR 573 at [103]-[104]). But any guidance offered by your Lordships will inevitably be construed as if it were a supplementary statute. There is a clear statutory question: have a significant number of the inhabitants of a locality or neighbourhood indulged in sports and pastimes on the relevant land for the requisite period? Every case depends upon its own facts and I think that it would be inappropriate for this House in effect to legislate to a degree of particularity which Parliament has avoided.
DISPOSAL
[69] I would therefore allow Miss Robinson's appeal against the rulings of the Court of Appeal on issues (i) and (iii) and restore the declarations of Lightman J to the effect that issue (i) registration would give rise to rights for the relevant inhabitants to indulge in lawful sports and pastimes on the land and issue (iii) for the purposes of s 22 as amended, the use for sports and pastimes has to continue until the date of the application. I would dismiss her appeal against ruling (iv) (that applications after 30 January 2001 had to satisfy the amended definition of a town or village green) and ruling (v) (that she could not succeed on the basis that the land had become a green on 1 August 1990). I would dismiss the city council's appeal against the ruling on issue (ii) (that the land on registration would be subject to the 1857 and 1876 Acts). I would dismiss the county council's appeal against the rulings on issues (vi) (that the registration authority could ignore the date specified on the application form as the date on which the land became a green); on issue (vii) (that the registration authority could allow the form to be amended) and issue (viii) (that the authority could, without amendment of the application, register a part of the land claimed). I would not answer questions (ix) and (x) further than indicated in this opinion.