The importance of this provision became apparent as a result of Sunningwell [1999]. That case opened the floodgates to applications for registration. ‘Sports and pastimes’ was given a broad construction, and it was held that individual users could be subjectively indifferent as to whether the land was being used ‘as of right’. Further, in McAlpine [2002] it was made clear that a small number of residents would be sufficient (in that case, just six). More recently, we had an HL case in which planning permission had been granted for a college to be built on land that had previously been used by the LA as a playing field; since the early 70s it had been used as a playing field and the council had regularly cut the grass so its use as a sports area could continue. After the LA had obtained planning permission, local residents argued that it was a ‘town or village green’ and the key question was then whether or not the use by the public had been with the implicit permission of the LA and thus was not ‘as of right’. It was held that there was no evidence of an implied licence on the part of the LA and there was no act by the LA to show that the inhabitants were only using the land with the LA’s permission. Thus, the registration was upheld (City of Sunderland [2002], noted in our December 2003/January 2004 issue, p20).

The only setback for town and village campaigners was Laing [2003], where it was held that the annual cutting of hay on land shows sufficiently regular use by the landowner to prevent registration; however, the City of Sunderland case (above), where the LA regularly cut the sports field, shows the limitation of that argument, since that cutting of the grass was merely held to be the actions of any responsible landowner.

It is against that background one has to view the important High Court decision of Lightman J in the recent Oxfordshire case. It is a decision that has caused considerable consternation. In essence, he has decided that registration of a town or village green under the 1965 Act merely confirms and records its status as a green; it is not the registration that actually confers the status. Thus, the fact that land is not registered does not mean that it cannot be a town or village green: so simply doing a commons search is no longer a guarantee that sufficient use has not been established for a town or village green to be registered subsequently. Thus, land can be a town or village green even if it has not been formally registered.

This, of course, is a potential bombshell for all landowners and developers. Bear in mind that 20 years’ use will be needed for a successful registration. But, that time can be backdated from the date of the application or, alternatively, it is even possible to succeed with a claim if the date of the expiry of the 20 years’ use does not immediately precede the date of the application.

To make matters worse, it seems that use by walkers can, of itself, qualify as ‘recreation’, although much will depend upon how the landowner would have reasonably viewed the way in which the land was being used. If it is unclear whether the land had been used as a route for recreation, or simply as a track, the inference should favour the dedication of a highway, which a landowner may reluctantly accept as the lesser of two evils!

It seems likely that Lightman J’s decision will be leap-frog appealed to the HL. Clearly, this is a very important issue because we have in the past few years seen a fundamental rewriting of what was understood to be the law of village towns and greens. Clarification is urgently needed. For an excellent article on Oxfordshire County Council v Oxford City Council [2004] EWHC 12 see [2004] EG 20 March 162. © Practical Lawyer