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 Scott of Foscote)
Oxfordshire County Council
v Oxford City Council and another
Judges:
Lord Hoffmann
Lord Scott of FoscoteLord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Judgment date: 24 May 2006
Decision by:
Lord Scott of Foscote
INTRODUCTION
[70] My Lords, this is an unusual and difficult case, raising difficulties both of substantive law and of procedure. The difficulties all relate, in one way or another, to the effect of the Commons Registration Act 1965, as originally enacted and as amended by s 98 of the Countryside and Rights of Way Act 2000, and the Commons Registration (New Land) Regulations 1969, SI 1969/1843 made thereunder. I have had the great advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann and I very gratefully adopt his luminous exposition of the factual and legal background to the issues that arise on the appeals.
TOWN OR VILLAGE GREENS
[71] There is, however, one important matter of background on which I would respectfully take issue with the view expressed by my noble and learned friend and concurred in by a majority of your Lordships. The issue is as to what would have been understood by Parliament and by the public generally prior to the enactment of the 1965 Act by the expression 'town or village green' and, consequently, how the definition of 'town or village green' in s 22(1) of the 1965 Act should be applied. The issue has not been addressed by counsel who have appeared on this appeal, but, none the less, I do not think your Lordships can avoid forming a view on it, as indeed my noble and learned friend has done, for the meaning to be attributed to the expression has a heavy bearing on the answers to be given to some of the questions that have arisen in this case.
[72] Lord Hoffmann has concluded that the expression 'town or village green' prior to the 1965 Act would have been regarded as applicable to any land that by long custom had become subject to the right for local inhabitants to use it for some form of recreation. Hence, s 15 of the Inclosure Act 1845: 'no town or village green shall be subject to be inclosed under this Act . . .', and s 12 of the Inclosure Act 1857 which says that:
'If any person wilfully cause any injury or damage to any fence of any such town or village green . . . 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 to the interruption of the use or enjoyment thereof as a place for exercise and recreation . . .'
--that person shall be guilty of an offence, and 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 . . .'
--would apply to all such land whether or not the land answered to the normal understanding of what a town or village green was. In none of these Victorian Acts was the expression defined. In each of these Acts the meaning of the expression could not have been other than a meaning corresponding to that normal understanding. The Concise Oxford Dictionary (9th edn, 1995) offers as one of the several possible meanings of the word 'green' the following: 'a piece of public or common grassy land (village green).' This, I suggest, corresponds with what the normal understanding of the expression 'town or village green' would have been and with the understanding of the expression that the legislators who passed the Victorian statutes to which I have referred would have had.
[73] There are several old cases where a customary right to conduct a recreational activity was established over, or discussed in respect of, land to which these Victorian statutes could not possibly have been intended to apply. (1) Millechamp v Jordan (1740) Willes 205n, was a case in which the court accepted the possibility in law of a customary right to use a particular field for recreation but limited to 'legal and reasonable times of year' so as not to allow the user to deprive the landowner of all profits of the land (nb the adjective 'reasonable' appears in the note to Bell v Wardell (1740) Willes 202 but in a reference to the case by Kelly CB in Hall v Nottingham (1875) 1 Ex D 1 at 3 the adjective 'seasonable' is substituted). (2) Mounsey v Ismay (1863) 1 H & C 729, 158 ER 1077 was a trespass case. One of the defences was that the free men of the city of Carlisle had acquired by 20 years' prescriptive user the right on Ascension Day each year to hold horse races on the land in question. The defence failed, Martin B holding that the right to have a race meeting could not be claimed under the Prescription Act 1832 (2 & 3 Wm 4 c 71). But he said, obiter (at 495), that it was 'perfectly clear that such a right as is here set up can only exist by custom' and (at 498-499) that a customary right to run horse races would be 'a lawful one at common law'. The right to have a race meeting once a year on someone else's land could not possibly justify describing the land as a town or village green. (3) Lord Hoffmann has referred at [6], above to Virgo v Harford (11 August 1892, unreported) in which a customary recreational right to play various games on 65 acres of open land on a hill in Somerset was apparently upheld. The notion that this land would have been understood to be a town or village green seems to me absurd. (4) Lancashire v Hunt (1894) 10 TLR 310 provides an equally (or more) extreme example of the point. The owner of Stockbridge Common Down in Hampshire applied for an injunction to prevent a local trainer from exercising and training his race horses over the 160 acres-odd of the common. The trainer claimed that he had a customary right to train his horses over the common. Wright J held that this customary right had not been established by the evidence but that the inhabitants of the borough did have the right to ride their horses for recreation over any part of the 160 acres. In a second action heard at the same time the owner of Stockbridge Common Down sought to restrain the inhabitants of Stockbridge from using the common for meetings, fêtes and cricket matches. Here, too, the defence was based on custom. It was said that the inhabitants had a customary right to use the downs for those purposes. This defence prevailed. The reporter of the case made the following comment (at 312):
'It will therefore be seen from Mr Justice Wright's decision in the two actions respectively that--(a) so long as that judgment stands the lord of the manor of Stockbridge will have in future a definite right to prevent racehorses from being trained on Stockbridge Common Down; but (b) that he will not, any more than formerly, be able to stop the inhabitants of Stockbridge using the common down as a recreation ground in the same way and for the same purposes as village greens are usually enjoyed by the villagers.'
It is to be noticed that the reporter did not comment on the absurdity of referring to the 160 acres of downs as a village green. No one, in my respectful opinion, could have supposed that the references in the Victorian statutes to village greens were applicable to the 160-acre Stockbridge Common Down. (5) In Mercer v Denne [1904] 2 Ch 534, [1904-7] All ER Rep 71 a customary right for fishermen in the parish of Walmer to spread their nets to dry on the land of a private owner at all times seasonable for fishing was held by Farwell J to be a good and valid custom. The customary right claimed was not a right for recreational purposes but for the purposes of the fishermen's trade as fishermen. However, the principles applied by Farwell J to the question whether the custom claimed was a good one were the same principles as those which had been established in the customary recreational rights cases, many of which he cited.
[74] These cases demonstrate, in my opinion, that a customary right for local inhabitants to use someone else's land, of whatever description, for a recreational purpose could be acquired, pre the 1965 Act, by evidence of user from time immemorial provided that the custom were sufficiently certain and were reasonable in itself. The custom would become, in effect, a local common law for the place to which the custom extended (see Tindal CJ in Lockwood v Wood (1844) 6 QB 50 at 64 cited by Farwell J in Mercer v Denne [1904] 2 Ch 534 at 551, [1904-7] All ER Rep 71 at 75). The customary rights thus acquired might be limited by the nature of the user that had given rise to them. Thus, for example, the riding of horses over Stockbridge Common Down since time immemorial could not have given rise to a customary right to hold fêtes and play cricket matches on the common, and vice versa. A customary right for local inhabitants to course hares over the stubble fields of the lord of the manor could, I imagine, have been acquired by an exercise of that right since time immemorial. But the right to course hares over the fields after they had been ploughed and planted or to enjoy other recreative activities over the fields could not have been thereby acquired.
[75] Another way of making the same point is to observe that the residual rights of the landowner to make profitable use of the land subject to the customary rights must surely depend on the nature of the user that has created the rights. In some cases the landowner's residual rights might be negligible. In other cases the landowner's ability to use the land might be restricted only for a limited period of the year. All would depend on the nature of the customary right that had been established. And there would be many types of land over which customary rights of one sort or another might be established which no one could suppose would be subject to the various prohibitions imposed by the Victorian statutes on town and village greens.
[76] It follows, in my opinion, that, pre the 1965 Act, the fact that a piece of land was subject to a customary right of recreation would not, by itself, have sufficed to allow the land to be described for legal purposes as a town or village green, eg for the purposes of the Victorian statutes. Something more would have been needed. There is, as Lord Hoffmann has said (at [7], above), no authority on the point but I am unable to accept that a purposive construction of the expression 'town or village green' in the Victorian statutes would have led to the 160-acre Stockbridge Common Down, or a mountainside down which people skied in winter snow, or a dense wood in which people wandered to pick bluebells or search for mushrooms or for other dalliance, being so categorised.
[77] In my opinion, the 'something more' would have been a quality in the land in question that would have accorded with the normal understanding of the nature of a town or village green, namely, an area of land, consisting mainly of grass, either in or in reasonable proximity to a town or village and suitable for use by the local inhabitants for normal recreational activities.
[78] The Report of the Royal Commission on Common Land 1955-1958 (Cmnd 462) (1958) makes some, not very many, references to town and village greens. Three of these are mentioned by Lord Hoffmann at [13], above. For my part I can see no reason to suppose that the commissioners had in mind anything other than greens as normally understood. Lord Hoffmann notes, in sub-para (c), the commissioners' comment that there were 'probably very few villagers who will not know what they mean by "their green"'. I respectfully agree with this comment which, to my mind, goes to confirm that the commissioners had in mind normal traditional town or village greens.
[79] Section 22(1) of the 1965 Act defined 'town or village green' as meaning:
'. . . 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 and pastimes or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years.'As Lord Hoffmann has observed, this definition brought together the two categories of land that, pre the 1965 Act, constituted land over which local inhabitants might be entitled to rights of exercise or recreation and then added a third, the so-called class (c), namely, land on which the inhabitants 'have indulged in such sports and pastimes as of right for not less than twenty years'. The important question for present purposes is whether this definition justifies classifying as a town or village green any land on which any form of lawful recreation is either the subject of a customary right or has been indulged in by the local inhabitants for at least 20 years. My instinctive reaction is to say that the definition was not intended to turn into a village green land subject to the exercise of customary rights that would not, pre the 1965 Act, have been regarded as a village green. The 160-acre Stockbridge Common Down was not, in my opinion, a town or village green before the enactment of the 1965 Act and did not become one afterwards. The landowner who owned arable land that, before the 1965 Act, had been subject to a customary right to course hares in the autumn would not after the enactment have found that he was the owner of a town or village green. And the addition of class (c) could not, in my opinion, have been intended to alter the status of land that had not previously been a town or village green or to turn into a town or village green land that had never previously been so regarded. The addition of class (c) was intended, in my opinion, in complete agreement on this point with Lord Hoffmann, to enable general recreational rights over town and village greens, as popularly understood, to be established without the necessity of proving user since time immemorial. Proof of 20 years' user as of right, a formula borrowed from the Prescription Acts, would do.
[80] However, unfortunately, at least in my view, cases since 1965 have led to the registration as town or village greens of land that did not remotely correspond to a town or village green in the normally understood sense. Some of these cases have been referred to by Lord Hoffmann (at [39], above). There was a case in 1977 in which some rocks at Llanbadrig, Ynys Mon, which had for upwards of 20 years been used by the local inhabitants to moor their boats was registered as a town or village green. In a case in 1976 a piece of land in Barnet on which for at least the past 20 years a Guy Fawkes bonfire had been held as of right was registered. No other evidence of use of the land for sports and pastimes is mentioned in the short report of the Chief Commons Commissioner. But the land was known as 'Bittacy Green' which certainly suggests such use and suggests that the nature of the land was consistent with it being a town or village green. If, however, all that had happened was that for the previous 20 years plus the local inhabitants had once a year as of right enjoyed a Guy Fawkes bonfire on the land, it does not seem to me that the statutory criteria were satisfied. And, in the course of counsels' submissions in the present appeal, reference was made to a quarry which, having been used for 20 years plus by the local inhabitants for recreational activities, was registered, in reliance on class (c), as a town or village green.
[81] It is, in my opinion, an error in construction of s 22(1) to suppose that any land, whatever the degree of divergence between the character of the land and a town or village green as normally understood, can be registered as a town or village green either in reliance on class (b) or in reliance on class (c) of the statutory definition. I do not think the problem would ever arise in relation to class (a) for I imagine that any land allocated by an inclosure award for general exercise and recreational purposes, would have been already or would soon have become a predominantly grassy area.
[82] In Bennion's Statutory Interpretation (4th edn, 2002) p 480, under the side-heading 'Potency of the term defined', the author says this:
'Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court. It is impossible to cancel the ingrained emotion of a word merely by an announcement.'
The author gives a number of examples from decided cases which illustrate, convincingly in my opinion, his point. The two cases which seem to me particularly pertinent are British Amusement Catering Trades Association v Westminster City Council [1988] 1 All ER 740, [1989] AC 147, where Lord Griffiths construed ([1988] 1 All ER 740 at 745, [1989] AC 147 at 157) the term 'cinematograph exhibition' as excluding video games because the use of the term immediately brought to mind a film show, and Delaney v Staples [1992] 1 All ER 944, [1992] 1 AC 687, in which Lord Browne-Wilkinson in construing the definition of 'wages' in the Wages Act 1986 said ([1992] 1 All ER 944 at 947, [1992] 1 AC 687 at 692) that 'it is important to approach such definition bearing in mind the normal meaning of that word'.
[83] My Lords, I would apply the same approach to construction of the definition of 'town or village green' in s 22(1) of the 1965 Act, or, for that matter, to construction of 'town or village green' in the Victorian statutes to which I have referred. I do not believe it can be correct to insist on a literal application of the s 22(1) definition so as to apply it to land that no one would recognise as a town or village green.
THE RIGHTS OF USER OVER TOWN AND VILLAGE GREENS
[84] The dispute between the parties as to whether there are any, and if so what, rights of user over class (c) town and village greens would fall away if the literal construction of s 22(1) were set aside and, as I would regard it, a more sensible construction, based upon the normally understood characteristics of a town or village green, were adopted instead. It is relevant to notice that the class (c) addition to the previous means by which land may have become a town or village green was based upon the language of prescription. Prescriptive user for the requisite period entitles the prescriber, or the general public if public rights of way are being obtained, to a right commensurate with the prescriptive user. Prescriptive user of a path on foot may give a right of way on foot, prescriptive user of the path with a horse may lead to a bridleway, or with vehicles to a right of way with vehicles. It is a basic principle of prescriptive use that the user 'as of right' that has continued for the requisite period becomes a user 'of right'. There seems to me every reason to suppose that the 20 years' user contemplated by s 22(1) was intended to lead to the same consequence as prescriptive user, namely, the acquisition of rights commensurate with the nature of the user. This would match up class (c) with class (b), where the user that had created the customary right would become the permitted user pursuant to that customary right.
[85] It is only if the literal construction of s 22(1) preferred by a majority of your Lordships is adopted that the 'rights' issue becomes difficult. If it is correct that any 20-year 'as of right' recreational use of any type of land justifies categorising the land as a town or village green, then it becomes necessary to ask what rights are thereby created over the town or village green? Why should a landowner's tolerance of a yearly Guy Fawkes bonfire on his land lead to the local public acquiring much broader, and more intrusive, rights over the land, rights that the landowner might well not have tolerated? But if there has been general recreational use of a parcel of mainly open grassy land that has continued as of right for 20 years plus, no problem arises. Mr Edwards, counsel for Miss Robinson, said that one single type of activity would not suffice to qualify land as a town or village green. But I would go further. The reference in s 22(1) to 'lawful sports and pastimes' is, in my opinion, a reference of generality. If, throughout the 20-year period the land were used for whatever lawful sports and pastimes the users chose, the requisite generality would be present. A management problem might arise if a new sport began to be played posing problems for other users of the land. User for the new sport might be unlawful if it presented unacceptable dangers to other users of the green but it would not necessarily be unlawful vis-à-vis the landowner. He could complain only if his residual rights in respect of the green were interfered with but, if the green were the typical town or village green, those rights would be likely to be negligible.
HUMAN RIGHTS
[86] The implications of 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) and the 1998 Act to the acquisition by land of town and village green status under class (c) of s 22(1) were raised by Mr George QC on behalf of the city council. He referred your Lordships to the recent decision of the Strasbourg court in JA Pye (Oxford) Ltd v UK [2005] 3 EGLR 1. A loss by a landowner of rights over his land brought about by the operation of a statutory prescription provision and the expiry of the relevant prescriptive period would, I feel bound to accept, prima facie engage his art 1 of the First Protocol right 'to the peaceful enjoyment of his possessions'. But, in my opinion, notwithstanding the Strasbourg court's decision in the Pye case, and having taken account of that decision (see s 2(1)(a) of the 1998 Act), the operation of the statutory prescriptive provision in s 22(1) brings about a deprivation of the landowner's rights that is, in the judgment of Parliament, in the public interest. The purpose of the statutory prescriptive provisions in our domestic law is, as Lord Hoffmann put it in R v Oxfordshire CC, ex p Sunningwell Parish Council [1999] 3 All ER 385 at 390, [2000] 1 AC 335 at 349, to 'prevent the disturbance of long-established de facto enjoyment'. Who could doubt that that is in the public interest?
[87] If, however, as I understand to be your Lordships' view, land can become a town or village green under class (c), or for that matter under class (b), on account of some long standing but limited recreational use (eg yearly Guy Fawkes bonfires) and then, after registration as a town or village green under the 1965 Act, the local public thereby become entitled to use the land for any 'lawful sports and pastimes', it is easy to see that the fact of registration may seriously limit the ability of the landowner to continue to enjoy the land in the manner in which he had enjoyed it during the prescriptive period. The public interest in thus increasing the rights of the local public over and above their 'long-established de facto enjoyment' and correspondingly reducing the residual rights of the landowner is hard to discern. So if it is right that a limited recreational use can qualify the land, upon registration, for use for any and all 'lawful sports and pastimes' (see s 22(1)), a potentially serious problem regarding the landowner's art 1 of the First Protocol rights could, in my opinion, arise.
[88] There is a further point about human rights where, as in the present case, the landowner is a local authority, to which I should draw attention. The city council acquired the land from St John's College and, I imagine, ss 122 and 123 of the Local Government Act 1972 apply to the land. Section 122(2A) (added by amendment under the Local Government, Planning and Land Act 1980) allows a local authority owner of 'open space' land, which includes land 'used for the purposes of public recreation', to appropriate the land to other uses. And s 123(2A) gives a local authority power to dispose of the open space land provided certain specified statutory procedures are followed (see the general discussion on these provisions in the opinion I gave in R (on the application of Beresford) v Sunderland City Council [2004] 1 All ER 160 at [27], [28], [2004] 1 AC 889).
[89] The question whether these statutory powers allow a local authority such as the city council to appropriate open space land for housing use and then to dispose of the land free from any recreational rights of the local inhabitants whether or not the land has been registered as a town or village green remains for judicial decision. The purpose of the statutory powers I have referred to would, in relation to open space land that had been registered under the 1965 Act, be pointless if the local authority could not do so. It seems to me arguable that these statutory powers do enable local authorities to use town and village greens for housing purposes and to remove the land from the clutch of the 1857 and 1876 Victorian statutes as well as from the 1965 Act. The relevance of all this for present purposes is that if the city council does have power under the 1972 Act to dispose of the Trap Grounds for housing purposes whether or not the land in question is a town or village green, the city council would suffer no obvious detriment if the Trap Grounds were to be registered as a town or village green and any potential human rights point based upon that registration would evaporate.
[90] In the light of the matters I have been discussing it is interesting to look again at the facts of the 'Bittacy Green' case. It appears from the decision of the Chief Commons Commissioner, Mr George Squibb QC, that the piece of land on which the annual Guy Fawkes bonfire had been held was a relatively small part of a larger parcel of land that had been acquired in 1952 by Hendon Borough Council, the predecessor of the London Borough of Barnet. Mr Squibb records, in the second page of his decision, that--
'In 1970 the Council was minded to cease to use the land for the purposes of public walks and pleasure ground and to appropriate it for housing purposes. Since the land was an "open space", as defined in section 22(1) of the Town and Country Planning Act 1962, because it was used for the purposes of public recreation, it was necessary to make an appropriation order, confirmed by the Secretary of State for the Environment, under section 73 of that Act. This order, the London Borough of Barnet (Sanders Lane Housing Area) Appropriation Order 1970, provided that other land should be provided in exchange and that the appropriated land should be discharged from the rights, trusts and incidents to which it was previously subject.
The 1970 Order did not, however, apply to all the land comprised in the register unit. There was excluded from it a triangle of land, which still remains open and outside the curtileges of the houses which have been built on the remainder. In my view, the effect of this Order was to discharge the part of the land used for housing from the right to indulge in lawful sports and pastimes on it . . .'
THE FUNCTION OF THE COURT
[91] There is one final problem, a procedural problem, that I want to mention before turning to the ten specific issues on which the county council seek rulings and guidance. The problem arises out of the nature of some of the relief sought. The background to the commencement of the proceedings can be shortly stated. Miss Robinson, a resident in North Oxford, applied to register the Trap Grounds as a town or village green on the ground that 'local residents had used it for lawful pastimes as of right (without obstruction, permission, stealth or force) for an unbroken period of 20 years . . .' and continued to do so. The city council, the landowner, objected to the application. They want to use the Trap Grounds, or some part, for housing development. The county council appointed Mr Vivian Chapman to inquire into the facts relevant to Miss Robinson's application and to advise them. Mr Chapman duly conducted a non-statutory inquiry and having done so presented the county council with a detailed report advising that a part of the Trap Grounds qualified for registration and should be registered as a town or village green. But the county council then received advice from another expert in this field, Mr George Laurence QC, their counsel on this appeal, which in some important respects conflicted with the advice given by Mr Chapman in his report. The county council then commenced these proceedings in order to obtain rulings on the several points regarding the effect of the 1965 Act, as amended, and the 1969 regulations made thereunder, that Miss Robinson's application and the conflicting advice they had received appeared to them to raise.
[92] Paragraphs (i)-(viii), inclusive, of the relief sought under the county council's re-amended CPR Pt 8 claim form sought rulings on legal issues. Paragraphs (ix) and (x) sought guidance on certain factual matters relevant to Miss Robinson's application. The paragraphs are set out in Lord Hoffmann's opinion at [35], above. It will be apparent that what was sought from the High Court was a fairly comprehensive essay on the legal effect of the 1965 Act, as amended, and the 1969 regulations. The proceedings did not constitute a judicial review application attacking any part of Mr Chapman's report, although it would, in my opinion, have been open to the city council to have sought leave to make such an application. The county council could have formed its own view about the conflicting advice it had received from Mr Chapman and Mr Laurence, have dealt with Miss Robinson's application accordingly and have left it to the contestants, Miss Robinson and the city council, to attack, if so advised, the manner in which the application had been dealt with or the decision that had been reached, or both. If that course had been taken by the county council the issues for decision by the High Court, and on appeal by the Court of Appeal and this House, would have been formulated by the attack or attacks in question. The High Court would not have been presented, nor would the Court of Appeal or your Lordships, with the examination paper that these proceedings have set. I do not wish to be over-critical of the county council's disinclination to come to a decision on Miss Robinson's application until all the legal issues which seemed to them to arise had been judicially resolved, but I do wonder whether all the ten paragraphs of declaratory relief sought in this case can be brought within the legitimate boundaries of the courts' jurisdiction to grant such relief.
[93] Lord Diplock said in Gouriet v Union of Post Office Workers [1977] 3 All ER 70 at 100, [1978] AC 435 at 501 that--
'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.'
In Zamir and Woolf's The Declaratory Judgment (2nd edn, 1993) pp 43-44 (para 3.008) the author, Lord Woolf, refers to Royal College of Nursing of the United Kingdom v Dept of Health and Social Security [1981] 1 All ER 545, [1981] AC 800 and Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC 112 as providing 'good examples of courts being prepared to grant declarations at the extreme limits of their supervisory jurisdiction'. In the former case the issue was whether a circular issued by the Department of Health and Social Security had mis-stated the law regarding termination of pregnancy by medical induction. The well-known Gillick case involved an allegation that a departmental circular about the legality of prescribing contraceptives for girls under the age of 16 was erroneous in law. In both these cases the issue for decision was clearly defined.
[94] In the great majority of cases about registration of town or village greens to which your Lordships have been referred the case has come before the court on an application for judicial review of a decision on registration already taken by the registration authority (see eg R v Oxfordshire CC, ex p Sunningwell Parish Council [1999] 3 All ER 385, [2000] 1 AC 335, R (on the application of Beresford) v Sunderland City Council [2004] 1 All ER 160, [2004] 1 AC 889, R v Suffolk CC, ex p Steed (1995) 70 P & CR 487, R (on the application of Alfred McAlpine Homes Ltd) v Staffordshire County Council [2002] EWHC 76 (Admin), [2002] 2 PLR 1, R (on the application of Laing Homes Ltd) v Buckinghamshire CC [2004] 1 P & CR 573 and R (on the application of Cheltenham Builders Ltd) v South Gloucestershire DC [2004] JPL 975). The only town or village green registration case previous to the present case that came before the court for a ruling before any decision had been taken by the registration authority that I have been able to discover is Caerphilly County BC v Gwinnutt (16 January 2002, unreported), a case in 2002 decided by Judge Moseley QC. The applicant borough council was the registration authority but had an interest in the land in question being developed as an industrial estate. The council took the view, very understandably, that this interest made it inappropriate for it to discharge the quasi-judicial function of deciding whether to accede to the application to register the land as a town or village green. So it made an application asking the court to determine the issue as to registration. Judge Moseley commented in his judgment that the procedure adopted had 'received the implicit indorsement' of this House in Hampshire CC v Milburn [1990] 2 All ER 257, [1991] 1 AC 325, but he was plainly puzzled about the legitimacy of asking the court to decide an issue that the applicant council had a statutory duty to decide. He said this (at para 8):
'In those circumstances what is the function of the court? In my judgment it can (1) determine any issue of law or construction submitted to it. Its determination on that issue must necessarily be final because there is only one correct answer to any such question, being the answer which the court provides and (2) provide guidance to the council as registration authority on the basis of the facts presented to it for its consideration. That guidance however in my view cannot possibly be final because after judgment the council may take into account other information available to it when it finally disposes of the application.'
[95] It seems to me likely that the county council's procedure in the present case, asking for various rulings on points of law and for guidance as to the approach it should take to some of the facts, was borrowed from the cited passage from Judge Moseley's judgment. Be that as it may, I do not think Caerphilly County BC v Gwinnutt, where the council had, in effect, recused themselves and had no alternative but to ask the court to decide the registration issue, should be regarded as a precedent of general application.
[96] Lightman J in the present case, referring to the procedure the county council had adopted, drew comfort, as Judge Moseley had done, from Hampshire CC v Milburn. In Hampshire CC v Milburn the owner of two parcels of land which, with other land, had been registered as common land, had applied for the land to be removed from the register. The issue was whether certain conveyancing transactions had had the result in law that the two parcels had ceased to be common land. The county council, as registration authority, asked the court to determine whether they should accede to the deregistration application. Millett J, at first instance, made a declaration that they should. In a leap-frog appeal this House allowed the appeal and held that they should not. There was no attention paid, either in the arguments of counsel or in the opinion delivered by Lord Templeman, concurred in by the other members of the appellate committee, to the propriety of the procedure that had been adopted. Nor, in my opinion, need there have been, for the sole issue in the case was the legal effect of the conveyancing transactions which were said to have deprived the parcels of land of their character as common land.
[97] I would accept that if there is an issue of law that needs to be decided before a decision can be made on a registration, or deregistration, application, the registration authority can refer the issue of law to the court for a ruling. And the court may, if in its discretion it thinks it right to do so, make a declaration accordingly. But the propriety of a registration authority asking the court to give a ruling on an issue of law in which it has no interest as registration authority or in any commercial respect and that does not need to be decided in order for a decision to be reached on a pending registration, or deregistration, application seems to me to be highly dubious. Each of the first five of the declaratory rulings sought by the county council in the present case raises an issue of substantive law. The propriety of the county council asking the court to give these rulings depends, in my opinion, on the rulings being necessary for a decision to be taken by the county council on Miss Robinson's registration application. The rulings sought by paras (i) and (ii) cannot, in my opinion, pass this test. (At the end of [35], above, Lord Hoffmann has explained the circumstances in which those rulings came to be added to the county council's original list.)
[98] The criteria for registration of land as a class (c) town or village green, as set out in the 1965 Act in its original form and as amended, direct attention to the user of the land. The criteria do not require any investigation into what rights of user the inhabitants of the relevant neighbourhood or locality will have after registration. There is no present issue regarding the post-registration rights and such future issue as may arise, if and when registration takes place, will be an issue between the relevant inhabitants, of whom Miss Robinson will be one, and the city council. The county council would not be a necessary party to litigation instituted to resolve the issue.
[99] The same point applies, even more strongly, to the ruling sought by para (ii). Whether the Victorian statutes, to which I have already referred, apply to a class (c) town or village green has no conceivable relevance to the registration issue. It was, in my respectful opinion, impermissible for the county council to ask the court to give what is, in effect, an advisory opinion on an issue that has not yet arisen and, if and when it does arise, will not concern the county council in its registration authority role or in any other capacity.
[100] The rulings sought in paras (iii), (iv) and (v), on the other hand, do relate to issues of law that can be represented as necessary to be resolved on Miss Robinson's registration application.
[101] Paragraphs (vi), (vii) and (viii) relate to procedural issues that have arisen and that the county council, as registration authority, needs to deal with before reaching a decision on the registration application.
[102] As to paras (ix) and (x), which seek the court's guidance as to how the county council should deal with certain factual matters, it seems to me quite inappropriate for the county council to seek, or for the court to give, 'guidance' of this sort. The county council, as registration authority, must make up its mind how to deal with the facts thrown up by Mr Chapman's report. They have a quasi-judicial role under the 1965 Act and must discharge it to the best of their ability. Trustees, if they do not know what to do, can ask the court to tell them or, alternatively, they can surrender their discretion to the court and ask the court to exercise it for them. The county council's procedure in the present case in seeking the paras (ix) and (x) guidance, and Lightman J's response, seem to me, if I may respectfully say so, to be assimilating the county council's role as registration authority to that of trustees. I would, for my part, deprecate this.
[103] For the reasons I have endeavoured to explain Lightman J should, in my opinion, have declined to entertain the county council's requests made in paras (i), (ii), (ix) and (x) and, for the same reasons, the Court of Appeal should, in my opinion, have set aside the declaratory relief granted by the judge under these paragraphs. What should your Lordships now do? My noble and learned friend Lord Hoffmann has said (at [45], above) that because the city council want to build houses on the Trap Grounds, or to sell the land for housing development purposes, they (the city council) have 'a real and immediate interest' in obtaining answers to the questions raised in paras (i) and (ii), namely, whether registration of the Trap Grounds as a class (c) town or village green would create rights to enable the local inhabitants to use the land for lawful sports and pastimes and would subject the land to the various prohibitions imposed by the Victorian statutes on town and village greens. My noble and learned friend has concluded that in these circumstances it would be a proper exercise of the House's discretion to entertain the request for rulings under paras (i) and (ii). Moreover Lightman J at first instance ([2004] QB 253, [2004] 2 WLR 1291) and Carnwath LJ in the Court of Appeal [2005] 3 All ER 961, [2006] Ch 43) have supported their respective rulings with careful argument and the correctness of them has been debated before your Lordships. My Lords, there seems to me, if I may respectfully say so, a good deal of force in the view that in these circumstances the House should give answers to the questions raised by these two paragraphs. But, having regard to the cogent arguments put forward by my noble and learned friend Baroness Hale of Richmond, whose opinion I have had the advantage of reading in draft, and having regard also to the opinion of this House expressed by Lord Diplock in Gouriet v Union of Post Office Workers [1977] 3 All ER 70 at 100, [1978] AC 435 at 501 (cited at [93], above), the answers should be limited to those that are strictly necessary and that are not in any way dependent on facts not yet known or not in evidence. On that footing I must now deal with the ten paragraphs of relief sought under the county council's re-amended Pt 8 claim form.
THE TEN ISSUES
[104] Issue (i). Paragraph (i) asks 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'. The point of this question is that it has been contended that a class (c) registration simply settles the status of the land (see s 10 of the 1965 Act) and that the local inhabitants do not thereby obtain any rights of recreation over the land. The obtaining of these rights, it was contended, was intended by Parliament when enacting the 1965 Act to await further legislation which would confer the requisite rights, legislation that is still being awaited. If these contentions are right, the registration of the Trap Grounds as a class (c) town and village green would confer no rights on Miss Robinson and the other local inhabitants. The development of the Trap Grounds for housing purposes would interfere with no rights that Miss Robinson and the others can claim. My Lords I am in full agreement with what Lord Hoffmann has said about these contentions at [47]-[49], above. I agree that the effect of registration under the 1965 Act of a class (c) town or village green is to confer on the local inhabitants rights of recreation over the land and I agree that a declaration so stating could, in the particular circumstances of this litigation, properly be made, or upheld, by your Lordships.
[105] But I do not agree that registration can authorise local inhabitants to enjoy recreative user of the land that is different in kind from the 20 years' user that has satisfied the statutory criteria for registration or that would diminish the ability of the landowner to continue to use the land in the manner in which he has been able to use the land during that 20-year period. I do not accept that a tolerant landowner who has allowed the local inhabitants to use his grass field for an annual 5 November bonfire for upwards of 20 years must, after registration, suffer his field to be used throughout the year for all or any lawful sports and pastimes with the consequential loss of any meaningful residual use that he could continue to make of the field. I do not understand how anyone can suppose that that is what Parliament had in mind in 1965. And if registration of land as a class (c) town and village green were to bring about a diminution of the landowner's property rights, not simply by establishing the local inhabitants' right to go on doing what they had been doing for the last 20 years but by depriving the landowner of the right to go on doing what he had been doing for the last 20 years, there would, in my opinion, be a very real question as to the compatibility of such a legal regime with the landowner's rights under art 1 of the First Protocol to the convention.
[106] While, therefore, I agree with Lord Hoffmann that registration of the Trap Grounds as a class (c) town or village green would entitle the local inhabitants to recreative rights of user over it, those rights would, in my opinion, be commensurate with the nature of the user that had led to that result and would not necessarily extend to the right to use the land for all or any lawful sports or pastimes. For instance, clay pigeon shooting is a popular lawful sport or pastime. Would clay pigeon shooting be permissible on the Trap Grounds if registration took place? It presumably would be if clay pigeon shooting had taken place reasonably regularly over the 20-year period. Or what about archery contests? Those walking their dogs would have to be warned to keep out of the way. In my opinion any sort of declaration that went beyond the very limited form of declaration to which I have referred at the end of [104], above, would be a misuse of the discretionary power to give declaratory relief. It would not settle any current issue. If, after registration, some recreative activity were to take place on the land to which the city council or some local inhabitants objected, there would be an issue for decision and a declaration settling the issue could be made. These proceedings are not the proper occasion for settling issues that have not yet arisen.
[107] Issue (ii). Paragraph (ii) asks whether land which has become a class (c) town or village green falls within the scope of s 12 of the Inclosure Act 1857 and s 29 of the Commons Act 1876. The answer depends on which approach to construction of s 22(1) is right. If the approach I have advocated were to be accepted, the meaning of 'town or village green' in those Acts would be no different from the meaning of 'town or village green' in the 1965 Act. The only difference would be the additional, class (c), means by which land might become a town or village green. In that case a class (c) green would, in my opinion, fall within the scope of the two sections. But, since a majority of your Lordships favour the literal construction of s 22(1), land is capable of becoming registered as a town or village green notwithstanding that it is not land to which either of the two sections has been or would have been at any time applied eg arable land over which customary recreative rights are enjoyed or the rocks at Llanbadrig, Ynys Mon, to which local inhabitants moor their boats (see Lord Hoffmann's opinion at [39], above). An 'always speaking' approach to the construction of statutory provisions is only permissible if there can be a reasonable certainty that the legislative intendment underlying the statutory provision would envelop the new situation that had developed (see Victor Chandler International Ltd v Customs and Excise Comrs [2000] 2 All ER 315 at 323-324, [2000] 1 WLR 1296 at 1304 (para 32)). How can that certainty be present in relation to class (c) if the literal approach to construction is adopted? An arable field may become a town or village green and ploughing of the field by the landowner would then be barred by s 29 of the 1876 Act. The manuring of the field, too, would be barred by s 12 of the 1857 Act. The notion that this would have [been] intended by the legislature cannot, I respectfully suggest, be maintained.
[108] As to the propriety of your Lordships making a declaration on this issue, a declaration that the Trap Grounds would, on registration, become subject to the two Victorian statutes will not settle the question whether the city council's housing development intentions for the land will be frustrated. That question will not be answered until the scope of a local authority's statutory powers to appropriate open space land to housing purposes and its ability then to sell the land for housing development free from town or village green restraints has been judicially determined. That being so, I can see no good reason why the House should, in relation to issue (ii), depart from the practice indorsed and recommended by Lord Diplock in Gouriet v Union of Post Office Workers [1977] 3 All ER 70 at 100, [1978] AC 435 at 501.
[109] Issue (iii). Paragraph (iii) seeks a ruling as to the meaning to be attributed to the words 'continue to do so' in s 22 of the 1965 Act, as amended. This issue is addressed by Lord Hoffmann at [44], above with which, with one slight qualification, I am in complete agreement. I agree that the amendment introduced by the 2000 Act does not require that the user of the land for sports and pastimes continues until registration and, I agree that, prima facie, the user must continue up to the date when the registration application is made. If, however, 20 years' appropriate user having passed and while the user is still continuing the landowner bars the user, a more or less immediate application to register the land in response to the landowner's action would, in my opinion, suffice. But if the barring of the user were not responded to reasonably promptly, the continuance criterion introduced by the 2000 Act would not be able to be satisfied. My reason for this slight qualification is that an applicant for registration is quite likely, before making the application, to attempt to stir up neighbourhood support or to obtain suitable evidence from local inhabitants. The landowner is quite likely to hear of this and a race to see who could act first, the landowner in barring the use of the land or the applicant in making the application, would not be satisfactory. The requirement of continuance needs, I think, to be approached in a commonsense fashion. Has the previous public user fallen into disuse is, in my opinion, the right question to be asked.
[110] Issues (iv) and (v). I agree with Lord Hoffmann for the reasons he has given at [43], above that the amended s 22 applies to all registration applications made after the 2000 Act came into effect and that the land in question becomes a town or village green on registration.
[111] Issues (vi), (vii) and (viii). These questions are dealt with by Lord Hoffmann at [59]-[61], above and I am in entire agreement with his answers to the questions raised and his reasons for them. I would like, particularly, to emphasise my agreement that a registration authority should be guided by the general principle of being fair to those whose interests may be affected by its decision.
[112] And, finally, there is the guidance sought by issues (ix) and (x) in relation to the factual matters referred to. I would, for my part, for the reasons I have given, prefer to express no view at all on these factual matters. It is for the county council to weigh the evidence, consider whether it satisfies the criteria for registration of the Trap Grounds as a town or village green prescribed by s 22(1) of the 1965 Act, correctly construed, and come to a decision accordingly. If the city council or Miss Robinson wish to challenge the decision on any points of law, they may then do so.
DISPOSAL
[113] For the reasons I have given: (1) On issue (i) I would allow Miss Robinson's appeal against the ruling of the Court of Appeal but set aside the declaration of Lightman J and make the limited declaration referred to at [104], above. (2) On issue (ii) I would allow the city council's appeal against the ruling of Lightman J, concurred in by the Court of Appeal, and decline to answer the question posed. (3) On issue (iii) I would allow Miss Robinson's appeal against the ruling of the Court of Appeal and restore Lightman J's declaration but with the addition to the declaration of the words:
'and so that if an application is made or legal proceedings are commenced reasonably promptly after and in response to action taken by the landowner or others to obstruct the continued indulgence as of right by the relevant inhabitants in lawful sports and pastimes, the said indulgence shall be taken to have continued to the date of the application or the commencement of the legal proceedings.'
(4) On issues (iv) and (v) I would dismiss Miss Robinson's appeal against the Court of Appeal's ruling (allowing the city council's appeal against Lightman J's ruling on these issues). (5) On issues (vi), (vii) and (viii) I would dismiss the county council's appeal. (6) I would not answer issues (ix) and (x) and would set aside the 'guidance' declarations made by Lightman J.