The importance of these provisions became apparent as a result of Sunningwell [1999], which opened the floodgates to applications for registration. This was because ‘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 McAllen [2002] it was made clear that a small number of residents would be sufficient (in that case, just six). Against that background the ongoing litigation involving the Trap Grounds in Oxford has been seen as the key battle. The High Court decision of Lightman J caused consternation to developers, since he decided that registration under the 1965 Act merely confirmed existing status of the land, which meant that open land could already qualify as a ‘town or village green’ even though it was not registered (which meant that doing a commons search would no longer guarantee the position).

The Oxford case has finally reached the HL, but it’s decision is extremely complex and is not for the faint-hearted. In summary:

• land cannot be a village green unless it has actually been registered under the 1965 Act (so Lightman J’s decision on that point is reversed);
• land can only be registered if a significant number of the inhabitants have indulged in lawful sports and pastimes as of right for a period of at least 20 years and that must continue up to the date of application for registration. Note that the CA had said that the activities must continue up until the actual date of registration, but that no longer seems to be correct;
• land that has been registered as a village green cannot be used by the owner in any way that would prevent the exercise of the ‘lawful sports and pastimes (ie it cannot be developed!).
• the HL also raised all sorts of arguments involving the Human Rights Act 1998, although those issues remain largely unresolved.

Note that this latest decision does not affect the HL’s previous finding that the use of land ‘as of right’ can be prevented if the landowner does something before an application for registration is made that discontinues the use. For instance, simply erecting a fence around the land (or perhaps erecting obvious signs giving permission for the recreational use) might therefore be enough to prevent time running (because the use will not be ‘as of right’).

It is a complex area. The best commentary we have seen is at www.practicallaw.com/4-202-4573 (subscription service), on Oxfordshire County Council v Oxford City Council [2006] UKHL 25. © Practical Lawyer