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
(Judgment by: Lord Walker of Gestingthorpe)
Oxfordshire County Council
v Oxford City Council and another
Judges:
Lord Hoffmann
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of GestingthorpeBaroness Hale of Richmond
Judgment date: 24 May 2006
Judgment by:
Lord Walker of Gestingthorpe
[124] My Lords, I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Hoffmann. I am in full agreement with his opinion and I would dispose of the appeal as he proposes. I add a few words of my own on the question of 'what is a village green?' discussed at [37]-[40], above of Lord Hoffmann's opinion.
[125] In R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60 at [92], [2004] 1 All ER 160 at [92], [2004] 1 AC 889, I expressed some unease at a result which appeared to stretch the concept of a town or village green close to the limit of what Parliament is likely to have intended. I have felt a similar, but rather stronger, sense of unease about the prospect of the recognition as a town or village green of all or part of the land to which Miss Robinson's application relates--an over-grown, rubble-strewn, semi-submerged area, sandwiched between the canal and the railway in north-west Oxford.
[126] This intuitive feeling gets some support from legal principle in that a town or village green has traditionally been classified as a sub-set of a larger class, that is land over which inhabitants of a neighbourhood enjoy customary rights, sometimes recreational, sometimes non-recreational (as in Mercer v Denne [1904] 2 Ch 534, [1904-7] All ER Rep 71 (Farwell J); [1905] 2 Ch 538 (Court of Appeal)).
[127] In Lancashire v Hunt (1894) 10 TLR 310 (Wright J); (1894) 11 TLR 49 (Court of Appeal), the case about 'a cricket match or fete' held on Stockbridge Common Down, counsel argued ((1894) 10 TLR 310 at 311), not that the down was a village green, but that there was a right to use the down 'in the same way as villagers had a right to enjoy and use a village green' (my emphasis) and Wright J is reported (at 312) as having accepted that submission. The Court of Appeal dismissed the appeal without comment on this aspect of the case. Other customary rights hover on the verge of recreation, such as a right for parishioners (but not the general public) to walk across parkland to attend the parish church (Brocklebank v Thompson [1903] 2 Ch 344). The construction of the statute proposed by Lord Hoffmann would, as he recognises (at [49], above), put all customary recreational rights into a single one-size-fits-all category.
[128] Nevertheless the cumulative force of the eight points set out at [39], above of Lord Hoffmann's opinion appears to me to be irresistible. In enacting the Commons Registration Act 1965 Parliament deliberately chose not to adopt the narrower definition proposed by the Royal Commission on Common Land 1955-1958. In enacting the Countryside and Rights of Way Act 2000 Parliament (while amending the statutory definition in other respects) did not consider it appropriate to narrow its scope by reference to the area or character of the land in question. Parliament now has the opportunity to re-visit this topic again if it thinks fit. It is not for your Lordships' House to intervene in the legislative process.