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Background:
Section 1(1) of the Commons Registration Act 1965 (the "1965 Act") provides for the registration of town and village greens.
Section 1(2) of the 1965 Act provides that no land capable of being registered under the 1965 Act shall be deemed to be a town or village green unless it was registered before 31st July, 1970.
The 1965 Act identified the following three categories of town or village greens:
land which has been allotted by statute for the exercise or recreation of the inhabitants of any locality (known as a "class a" green);
land on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes (known as a "class b" green); and
land on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than 20 years (known as a "class c" green).
To qualify as a class c green, provided that the land had been used as of right for at least 20 years, there was no requirement in the 1965 Act for the user to be continuing. However the definition of a class c green was amended with effect from 30th January, 2001 (pursuant to sections 98 and 103(2) of the Countryside and Rights of Way Act 2000) to include only land on which for not less than 20 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 continue to do so (there is provision for the land to qualify as a class c green if the user has not ceased for longer than a prescribed period but no period has been prescribed as yet and this provision is therefore currently inoperative).
A class c green was only registrable under section 1(1) of the 1965 Act if the period for enjoyment as of right had expired on or before 31st July, 1970. Accordingly, section 1(2) of the 1965 Act did not apply if the user had been for a period of less than twenty years before 31st July, 1970 (R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335). The land retained the potential to become a green after twenty years’ user by continued user as of right.
Section 13 of the 1965 Act provides for the register to be amended if any land becomes a town or village green. The Commons Registration (New Land) Regulations 1969 (the "1969 Regulations") provide that where, after 2nd January, 1970, any land "becomes" a green, application "may" be made for inclusion of the land in the register of town or village greens.
The High Court has given guidance on applications to register land as a class c green in the case of Oxfordshire County Council v Oxford City Council [2004] EWCH 12 (Ch).
Facts:
Oxfordshire County Council, the claimant in the case, is the registration authority for its area for the purposes of the 1965 Act.
The claimant received an application for the registration as a town green of an area of land owned by Oxford City Council, who wished to use the land to provide housing. The City Council objected to the application. Following a non-statutory public enquiry, the claimant sought guidance from the court on a number of legal questions relating to the decision whether to register.
After proceedings were commenced, the City Council put up a notice on the land prohibiting access without their consent.
Decision:
The court gave judgment on a number of legal issues arising under the 1965 Act. The decisions in respect of some of the principal issues are summarised below:
The act of registration under the 1965 Act does not confer on land the status of a green. That status is acquired independently of the registration process. Registration merely records and confirms the prior existence of a green. Once land has acquired the status of a green, it is registrable at any time thereafter at the option of any party.
Although the 1965 Act does not expressly state what rights ensue to the inhabitants by virtue of 20 years’ user, the registration of land as a class c green confirms the incident rights of the local inhabitants to indulge in lawful sports and pastimes on the land.
The rights of local inhabitants in respect of greens registrable but unregistered by 31st July, 1970 are extinguished. This is the effect of section 1(2) of the 1965 Act. The provision does not simply deprive the inhabitants of the conclusive presumption in respect of status as a green conferred by the 1965 Act.
Under the original definition of a class c green in the 1965 Act, once the 20-year period of user as of right had expired, the land became a green and its status as a green was irreversible. An applicant for registration of land as a green can select any 20-year period prior to the date of the application (unless the land had already acquired the status of a green before 31st July, 1970, in which case it should have been registered under the 1965 Act). It is not necessary for the user to continue up until the date of an application for registration as a green.
The requirement in the amended definition of a class c green for the user as of right to be continuing meant that the user must be continuing until the time of the application for registration or of the commencement of proceedings vindicating the existence of the green (Caerphilly County Borough Council v Gwinnutt [2002]). It did not require the user to continue until the determination of the application by the registration authority or judgment by the court because this would allow the landowner to defeat a claim by putting up a notice on the property after commencement of proceedings but before determination or judgment.
This amendment to the definition of a class c green, which took effect from 30th January, 2001, did not affect the status of existing greens. Accordingly, where the requirement of 20 years’ user had been satisfied before 30th January, 2001 but an application for registration was not made until after that date, the land would still be capable of registration as a class c green even if the user was not continuing.
It is not necessary for the 20-year period to immediately precede the application for registration of land as a green, but if an applicant chooses to rely on an earlier period which expires on or after 30th January, 2001, he must then prove continuing user from the start of that earlier period until the date of the application for registration.
Comment:
Following the guidance given in this case, the rules relating to the acquisition of class c green status can be stated as follows:
If the 20-year period expired before 31st July, 1970, the land would have acquired the status of a green at that date. The land would have been registrable as a green under the 1965 Act and, if not registered, would be deemed not to be a green. A new 20-year period of user as of right could commence after 31st July, 1970 which would mean that the earliest date the land could acquire status as a class c green would be 1st August, 1990.
If the 20-year period expired after 31st July, 1970 but before 30th January, 2001, the land would have acquired the status of a green on expiry of the 20 year period. The user could then cease without affecting status of land as a green or the entitlement to register the land as a green.
If the 20-year period expires on or after 30th January, 2001, to acquire status as a green, the user must be continuing at the date of application for registration of land as a green or commencement of proceedings for determination of land as a green.
One consequence of these rules is that, where the 20- year period expires after 31st July, 1970 but before 30th January, 2001, it is possible for land to become a green after 20 years’ qualifying user but not to be registered and subsequently cease to be so used and become used instead by an unwitting owner e.g. for housing development. The land retains its status as a green notwithstanding that it has ceased to be used as such and local inhabitants could assert their right to use the land as a green.
Where 20 years’ user as of right is established before 30th January, 2001, an applicant for registration of land as a class c green can rely on any period of 20 years before the date of the application (provided the period did not expire before 31st July, 1970). The applicant will want to consider the extent of user, the state of the land during the period and any physical changes e.g. in respect of accessibility to it, which may affect the prospects of establishing the requisite enjoyment of the land over the period.
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