The decision of Lightman J in the case of Oxfordshire County Council v Oxford City Council and Robinson [2004] (the Trap Grounds case) affects current and future applications to register land as a town or village green, but may also determine the status of land which is not (and may never be) the subject of such an application. The background to the statutes and case law of village greens is outlined in the box overleaf.

The Trap Grounds case

In June 2002 Oxfordshire County Council, the registration authority, received an application seeking the registration of a piece of land in North Oxford known as the Trap Grounds as a class [c] green. The owner of Trap Grounds, Oxford City Council, objected. The registration authority appointed a QC as an inspector to investigate the application and objections. Following a non-statutory public inquiry, the inspector recommended that part of the Trap Grounds should be registered as a green.

The City Council challenged certain aspects of the inspector’s report. The registration authority took advice – again from experienced leading counsel – and both counsel recommended that the court should be asked for guidance on the disputed legal points. The registration authority therefore issued proceedings against both the City Council and the applicant seeking a ruling on eight questions of law and guidance on two further issues. We will concentrate on four of those questions.

Before considering them, it is important to note that Lightman J resolved the fundamental question of when land is a green. He held that land is a green when it meets the definition in s22 of the Commons Registration Act 1965, and that this is so whether or not the land has been registered as a green under the Act. The result is that registration has the effect of providing conclusive evidence that the land was a green as at the date of registration, in accordance with s10 of the Act, but that land can become a green at any time providing there is 20 years’ qualifying use. Registration may give evidential weight, but it is not necessary – it is optional. Lightman J also held that once a green, land is always a green, such that it could not cease to be a green because of discontinuance of use or abandonment.

Returning to four of the questions asked of the court, these were:

1. What is the relevant 20-year period under the original definition?

Could land become a green on a date earlier than the date on which the application for registration was made? The registration authority argued that land became a green on meeting the definition in the Act, that is 20 years’ qualifying user, provided the 20 years accrued after the 31 July 1970 registration deadline. It was argued that the period could be in gross, so that any period of 20 years within that range would be acceptable, and that the green was registrable at any point thereafter.

The City Council, as landowner, on the other hand, relied on a line of authority to the contrary (eg Ministry of Defence v Wiltshire CC [1995]; R v Norfolk CC ex parte Perry [1996]; and Caerphilly BC v Gwinnut [2002]), arguing that the matter was settled. It pointed to the consequences of the registration authority’s contrary position, being that a green could be created just the day after the 31 July 1970 registration deadline, and that it must be wrong to be able to register land as a green if, after the relevant 20- year period but before registration, it had been developed, for example as a housing estate or an airport. It was said to be a serious matter for landowners as, even if no recreational rights attached to a green, the land would be blighted.

Lightman J considered the matter first as if he were free from previous authority, and concluded that, on the wording of the Act, land became a green as soon as the minimum period of user necessary – the 20 years – had occurred. Further, that any 20 years would do, and that this was irreversible. The judge then considered the cases upon which the landowner relied, and concluded that in those cases the tribunal had either not had the benefit of being referred to such information as was before him, or had not had the point properly argued. Accordingly, he departed from the previous decisions and held that the 20-year qualifying user need not immediately precede the application for registration, and that an applicant can select any 20-year period prior to the date of the application. There was no limitation period for making an application to register the green as such.

The effect of the judgment is that land may become a green with 20 years’ qualifying user ending as long ago as 1970, even though the land has not been registered as a green and even though it may have been developed. The blight scenario postulated by the landowner was therefore confirmed by the court.

2. In what circumstances will the amended definition apply?

It was a matter of some practical importance that it be clear for applicants and registration authorities when an application was subject to the original and when to the amended definition of a green (see box below for definitions). The positions of the parties were simple. The registration authority and the applicant argued that the amended definition applied only where the 20-year period claimed ended after 30 January 2001. The City Council argued that the amended definition applied to all applications made after 30 January 2001 regardless of the period claimed, and that accordingly no application using the old definition could be made after that date.

Lightman J considered the question as being whether, in enacting the amended definition, parliament can be taken to have intended to remove the status of green from land which had previously become a green and which was then registrable as such. He concluded that the Act did not disclose such an intention. Accordingly, the amended definition applies and applies only in cases when the land in question was not already by reason of the original definition a green, whether or not registered as such by 30 January 2001. Where the relevant period ended before that date, the original definition applies even if the application is made later.

3. A question of rights

On the issue of rights, Lightman J held that registration does not itself create any rights in relation to the green. Any rights that there are accrue independently upon the land becoming a green. The registration authority in the case sought a ruling on whether the relevant local inhabitants had rights to indulge in lawful sports and pastimes on land which had become a class [c] green. It was suggested that the Act merely dealt with registration and that there was intended by parliament to be a second stage of legislation which would actually confer rights. This proposition had received some judicial support in the past, including from Lord Denning who considered that the Act did not confer rights itself but thought that if further legislation was delayed he ‘would be tempted to infer’ that rights accrued (New Windsor Corporation v Mellor [1975]). Lightman J considered the cases, and the relevant statements from Hansard, and concluded that the references to a second stage of legislation applied only to common land and not to greens. He found nothing in the Act which justified construing it as if it was one of two stages.

The judge went on to consider class [c] greens in context, alongside classes [a] and [b], and held that there was nothing at common law or in the Act which suggested that class [c] greens gave rise to rights which were in any way different from those accruing to the other two classes. There was only a single concept of a green, and it was simply a green which was registered. Lightman J held that the same rights attach to class [c] greens whether or not registered: the rights of local inhabitants to indulge in lawful sports and pastimes on the land. The landowner had argued that the only rights which accrued were to exercise those lawful sports and pastimes which had given rise to the green, but the decision does not so limit them.

Whilst Lightman J accepted that the purpose of a registration Act is to record and settle definitively existing rights and interests, the result of the decision is that rights can accrue independently of any registration of land as a green. The effect is that landowners, and in particular those who come to buy a piece of land, may well find the land subject to the rights of others, of which they had no notice, and indeed no ready way of finding out about. Lawful sports and pastimes could have ceased as long ago as the 1970s and yet the land could still be a green.

4. Enforcement of rights

The registration authority also sought a ruling on whether land which has become a green attracts the protection of certain 19th-century legislation. Section 12 of the Inclosure Act 1857 (as amended by the Criminal Justice Act 1982) makes it a criminal offence for any person to do any act which injures a green or interrupts the use or enjoyment thereof as a place for exercise and recreation. Section 29 of the Commons Act 1876 provides that it is a public nuisance to encroach on to or inclose a green, to construct anything on it, or disturb or interfere with the occupation of the land otherwise than with a view to the better enjoyment of it as a green. If wilful, this too is punishable as a criminal offence.

The landowner argued that this legislation did not apply to class [c] greens, but, as noted above, Lightman J did not consider class [c] greens to be in any way different. It is not therefore surprising that he held that the 19th-century legislation applied to greens ‘however and whenever created and whether registered under the Act or not’.

Criminal sanctions

This legislation therefore protects not just the local inhabitants’ rights to disport themselves on the land, but also the land itself from interference which may affect the exercise of such rights. Thus there could be no built development, fencing, or substantial activity on the land. The judge acknowledged that there was some concern that innocent landowners or developers could be exposed to criminal sanctions. This is particularly acute as land does not have to be registered before any rights accrue. He sought to allay fears of criminal liability by making it clear that, in his view, the need for mens rea would not be met where the existence of a green was ‘not established and known’, and that the relevant offences were not continuing offences, so there would be no criminal liability from failing to remove an obstruction once the existence of the green was known.

This may be true, but the 19th-century legislation is not as clearly drafted as legislation is today, and it is arguable that at least one part of s12 of the 1857 Act has no express requirement for mens rea:

… 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 or recreation.

In any event, where there is some knowledge that the land is, or even perhaps is likely to be, a green, there seems to be no conclusion but that there would be criminal liability. The spectre of criminal prosecution for landowners remains.

Injunctions?

There is certainly the risk of an injunction being sought in civil proceedings to require the removal of a fence, or even a building, or to turn contractors off the land. Lightman J indicated that this may be required as the appropriate means to remedy the nuisance. Although the courts are not quick to issue mandatory injunctions requiring buildings to be demolished, they will do so where there has been a knowing and cynical breach of a prohibition (see for example, Wakeham v Wood [1981]).

Abatement?

With nuisance, there is also the right for those affected to seek the selfhelp remedy of abatement. This includes the ability to enter property and remove the source of a nuisance. It is generally confined to simple cases (see for example, Burton v Winters [1993]). Furthermore, it must be possible to abate the nuisance peacefully, and to cause as little damage as possible; notice must be given beforehand and the right exercised promptly. This would seem, however, to include taking down fences so as to allow the continued use of the land for recreation. Lightman J said that he had:

… the greatest difficulty seeing what basis there can be for the grant of relief to the landowner providing protection from [self-help] action.

The need for those who seek to preserve a green to apply swiftly for an injunction to remove any obstruction preventing use is intensified by the requirement under the amended definition for there to be continuing use of the land up to the date of application. An interruption by fencing could prove to be fatal to registration under the new definition if not acted upon swiftly.

In practice, it will be difficult to persuade a court that land is a green unless it is registered, as it will require the court to conduct its own inquiry and hear evidence. However, on an application for an interim injunction, the court is likely to lean in favour of preventing building on a candidate green which may otherwise be difficult to remove once begun.

Avoiding the trap in the Trap Grounds case

The judge granted a certificate that the case was an appropriate one to be appealed directly to the House of Lords; petitions from all parties for leave to appeal to the House of Lords are still to be decided at the time of writing. The Trap Grounds case, as it stands at the moment, has had the overall effect of making it much more likely that putative greens will in fact be greens, and be registered. At the same time, it has clarified the law to state unequivocally that local inhabitants have rights to disport themselves on land which has become a green, whether or not it is registered, and that the land attracts the protection of legislation which gives rise both to civil remedies for users and criminal liability on the part of landowners or contractors.

Those purchasing land which may have been used by local inhabitants for sports and pastimes for a period of 20 years at any time from the early 1950s would be well advised either to carry out their own investigations or to seek an indemnity from the vendor. It seems that this is the only way to avoid the trap in the Trap Grounds case. It may be too late for those who, albeit unknowingly, have already built on a green. Lightman J noted that the remedy for the position created by the Act lay with the legislature. Perhaps the Law Commission will address the issue as part of its project on easements and analogous rights.

Background

The leading cases on village greens were R v Oxfordshire CC ex parte Sunningwell PC [2001] and R (Beresford) v Sunderland Corporation [2003].

The common law has long recognised the concept of a green, with rights of recreation accruing by immemorial custom in favour of local inhabitants. The landowner must respect those rights notwithstanding that in consequence of its status they cannot develop the land or use it in any way which conflicts with the recreational user.

The Commons Registration Act 1965 required all existing greens to be registered by a specified date – by virtue of later regulations (Commons Registration (Time Limits) Order 1966 (SI No 1470)) – namely, 31 July 1970. Qualifying land which was not so registered would thereafter not be deemed to be a green unless it qualified afresh. Land subsequently qualifying could then be registered.

Section 22 of the Act defined ‘town or village green’ as land falling within one of three categories – in practice referred to as class [a], [b] or [c] greens. (This distinction is introduced by Note 4 to Form 30 in the schedule to the Commons Registration (New Land) Regulations 1969 (SI No 1843)).

Class [a] greens are created by statute and class [b] greens arise from immemorial custom. Class [c] greens, introduced by the Act to counter evidential difficulties of proving that a green had arisen by prescription, extended its application to land which had been subject to recreation by local inhabitants ‘as of right’ for a period of not less than 20 years (‘the original definition’). Amendments introduced by ss98 and 103(2) of the Countryside and Rights of Way Act 2000 revised the definition of the class [c] green with effect from 30 January 2001 (‘the amended definition’) to allow registration of:

... 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 local sports and pastimes as of right and either -

(a) continue to do so, or

(b) have ceased to do so for not more than [a period which has yet to be prescribed].

Case references

Burton v Winters [1993] 1 WLR 1077

Caerphilly Borough Council v Gwinnut (Unreported, 16 January 2002)

Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931

New Windsor Corporation v Mellor [1975] 1 Ch 380

Oxfordshire County Council v Oxford City Council and Robinson [2004] EWHC 12 (Ch),

The Times 30 January 2004 R (Beresford) v Sunderland Corporation [2003] 3 WLR 1306

R v Norfolk County Council ex parte Perry [1996] 74 P&CR 1

R v Oxfordshire County Council ex parte Sunningwell Parish Council [2001] 1 AC 335

Wakeham v Wood (1981) 43 P&CR 40

Richard Honey is a pupil in the Chambers of Robin Purchas QC, 2 Harcourt Buildings, Temple. Sue Jones is a non-practising barrister in the commercial property department at Laytons.  © Property Law Journal