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

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(Judgment by: Lord Rodger of Earlsferry)

Oxfordshire County Council
v Oxford City Council and another

Court:

Judges: Lord Hoffmann
Lord Scott of Foscote

Lord Rodger of EarlsferryLord Walker of Gestingthorpe
Baroness Hale of Richmond

Hearing date: 27-30 March, 3 April, 24 May 2006
Judgment date: 24 May 2006

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Judgment by:
Lord Rodger of Earlsferry

[114] My Lords, I have had the advantage of considering the speeches of my noble and learned friends in draft. For the reasons Lord Hoffmann gives, I would dispose of the appeal as he proposes. I also have sympathy with the reservations about the nature of the relief sought which my noble and learned friends, Lord Scott of Foscote and Baroness Hale of Richmond, have expressed, but, like Lord Hoffmann, I would answer questions (i) and (ii). I simply wish to add a short comment on one particular aspect of the case.

[115] Before doing so, I should confess that, like Lord Walker of Gestingthorpe, my feeling at the end of the hearing of the appeal was that it would be desirable, if reasonably possible, to interpret the definition of 'town or village green' in s 22 of the Commons Registration Act 1965 in a manner that would confine its application in the case of village greens to areas which were, more recognisably, the kinds of area which readily come to mind when the expression is used--in other words to 'traditional' village greens. But the terms of the definition in s 22 present a formidable obstacle to such an approach, an obstacle which it would be legitimate to surmount only if the House could be satisfied that it was necessary to do so in order to give effect to the intention of Parliament. Despite Lord Scott's arguments, having studied the speech of Lord Hoffmann, I cannot actually be sure that Parliament intended the provision to have this narrower scope. Moreover, the potentially wide implications of the definition became apparent, at the latest, in the decision of the House in R v Oxfordshire CC, ex p Sunningwell Parish Council [1999] 3 All ER 385, [2000] 1 AC 335 in June 1999. It is striking that, when subsequently amending the definition by enacting s 98 of the Countryside and Rights of Way Act 2000, Parliament did not use the opportunity to restrict its scope in this way. At present there is a Bill before Parliament dealing with some of the same subject matter. Again, it contains no measure to narrow the definition in s 22 so as to limit it to more 'traditional' village greens. But if, having taken account of your Lordships' speeches in the present appeal, Parliament wished to change the definition in this way, a suitable amendment could doubtless be introduced.

[116] My Lords, for the reasons given by Lord Hoffmann, I am satisfied that an area does not become a village green unless and until it is registered. It follows that I would reject Mr Edwards's submission that, before s 22 was amended by s 98, an area of ground on which the inhabitants of a locality had indulged in sports and pastimes as of right for 20 years or more had ipso facto become a village green. The position was, rather, that once that period had elapsed it was open to an interested party to apply to have the register of town and village greens amended to include an entry for the area in question. The applicant would not have needed to show that the inhabitants were continuing to indulge in the sports and pastimes when the application was made.

[117] Section 98 came into force on 30 January 2001, two months after the 2000 Act received the royal assent (see s 103(2)). As the House now holds, under the amended version of s 22, anyone applying to have the register amended had to show either (a) that the inhabitants continued to indulge in the sports and pastimes at the date of his application or (b) that they had ceased to do so for not more than a prescribed period. Since no period has ever been prescribed for the purposes of para (b), the operative paragraph is (a).

[118] Miss Robinson lodged her application after 30 January 2001 but on the basis that the area had become a village green in 1990. Her counsel, Mr Edwards, contended, however, that the amendment to s 22 did not apply 'retrospectively' and so, where the period of 20 years had been completed before s 22 was amended, an applicant still did not need to prove that the inhabitants were continuing to indulge in the sports and pastimes at the date of the application. An applicant such as Miss Robinson could rely on s 22 in its unamended form.

[119] Although the issue was presented as one of the retrospective effect of s 98 of the 2000 Act, that is to ignore its true nature. I refer to, without repeating, the lengthy observations on this topic in my speech in Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97, [2004] 1 AC 816. Put shortly, there is nothing in the 2000 Act to rebut the powerful presumption that s 98 ought not to be understood as affecting the substantive law in relation to events taking place before it came into force (see Wainwright v Home Office [2001] EWCA Civ 2081 at [27], [2003] 3 All ER 943 at [27], [2002] QB 1334 per Lord Woolf CJ). In any event, despite the language he used, that was not really the point Mr Edwards was making. The true question raised by his submission is whether s 98 applied generally or applied only to situations which arose after it came into force, with the result that the unamended version of s 22 continued to apply to other cases. If s 98 applied generally, then the amended version of s 22 applied, for the future, to situations which were already underway when it came into force.

[120] In effect, Mr Edwards was arguing that s 98 did not apply generally but applied only to situations where the relevant activities of the inhabitants occurred after 30 January 2001. Accordingly, for an indefinite period of decades or more into the future, in making an application based on activities before that date, an interested party could rely on the unamended version of s 22. Down all those decades, as he accepted, two different systems would operate in parallel, one which required the applicant to prove the continuation of the sports and pastimes and one which did not. I would reject the submission.

[121] First, there is nothing in s 98 or in any other provision of the 2000 Act to limit its application in this way. Moreover, Mr Edwards's interpretation would mean that Parliament had chosen to postpone the operation of the amendment indefinitely in what might well be a significant number of cases. He did not advance, and I am unable to see, any reason why Parliament would have intended that the new policy which it was enacting should not apply to all applications made after s 98 came into force. Indeed, the administrative and other complications of operating two different systems afford powerful reasons for supposing that Parliament would have intended that there should be only one.

[122] The position might have been different if it could be said that the amendment to s 22 prejudicially affected a vested right of the applicant. But, by the time the amendment to s 22 took effect, the applicant had not applied to have the register amended. Like others in a similar position, she simply had a right to apply which she had not yet exercised. And, since the purpose of legislation is to alter the existing legal situation, there is no presumption that it will not alter rights which individuals have, but have not exercised. Cf Abbott v Minister for Lands [1895] AC 425 at 431 per Lord Herschell LC. On the contrary, like everyone else, those interested in having the register of village greens amended ran the risk that sooner or later Parliament might intervene to change the law regarding such applications. That, and nothing more, is what happened when Parliament enacted s 98 and amended s 22: applicants found that they now had to meet an additional requirement before they could have the register amended. No question of vested rights arises.

[123] I am accordingly satisfied that s 98 applied generally and that the amended version of s 22 applied to situations which were already underway when s 98 came into force, including situations where an application was made after that date on the basis of the inhabitants' activities before that date. Therefore the amended version of s 22 applied to Miss Robinson's application. It is unnecessary to express any view on the rather different issue of applications which had been made but which had not been determined when s 98 came into force.