Oxfordshire County Council v Oxford City Council and others: HL 24 May 2006

Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a non-statutory enquiry, and sought a declaration from the court as to the status of the land.
Held: (Lord Scott and Baroness Hale dissenting in part) The claimant’s appeal succeeded in part. Registration would protect the rights sought. It is a necessary implication that land conclusively presumed to be a village green should be subject to the rights which the statute treated as creating a village green, namely the right to indulge in sports and pastimes. The only period upon which a claim could have relied was a period of upwards of 20 years continuing up to and ending with the date of the application. The word ‘becomes’ in section 13(b) means ‘becomes on registration’.
Baroness Hale said: ‘Unlike academic textbook writers and examiners, the courts do not decide legal questions in a vacuum. They know that, while hard cases may indeed make bad law, the particular facts of the case before them do cast a particularly bright light upon the legal issues and may throw up important questions which no rehearsal of the legal arguments in the abstract can ever do. Why, after all, do the best legal examination papers require candidates to answer problems based upon a precise, though imaginary set of facts? Because that is the way in which our case law has developed over the centuries. It is only legislators who make legal rulings in general and without reference to a specific set of facts.’ and ‘as an academic lawyer and examiner of students, I would see nothing wrong in essaying an answer to those questions, secure in the knowledge that if I turned out to have overlooked some important consideration which emerged in a later case, a court could and would ignore my views. As a judge, I see every objection to answering those questions. The fact that all parties and all courts have so far proceeded on the basis that we both can and should answer them does not to my mind outweigh the formidable objections to our doing so. ‘


Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond


Times 31-May-2006, [2006] UKHL 25, Gazette 08-Jun-2006, [2006] 2 WLR 1235, [2006] 2 AC 674, [2006] 22 EG 177, [2006] NPC 62, [2006] BLGR 713, [2006] 2 EGLR 95, [2006] 4 All ER 817




Commons Registration Act 1965 13(b), Registration (New Land) Regulations 1969 (SI 1969/1843), Countryside and Rights of Way Act 2000 98


England and Wales


CitedAbbott v Weekly 1665
A custom that ‘the inhabitants of the vill, time out of memory, and had used to dance there at all times of the year at their free will, for their recreation’ was held to be a good custom, and the land was established as a common. . .
CitedFitch v Rawling 1795
A common was claimed at Steeple Bumpstead in Essex for ‘all kinds of lawful games, sports and pastimes . . at all seasonable times of the year.’ including cricket.
Held: Rights of common over land can include the right of local inhabitants to . .
CitedDyce v Lady James Hay HL 1852
A claim was made for a prescriptive right for all the Queen’s subjects ‘to go at all times upon the . . appellant’s property . . for the purpose of recreation’.
Held: Leonards LC said that the right claimed was one that ‘cannot be maintained’ . .
CitedMounsey v Ismay 20-Jan-1863
The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner’s counsel protested that the fields were arable land.
Held: Martin B: ‘It must be assumed that the custom has existed since the . .
CitedLancashire v Hunt 1894
A right of common was accepted over land to play cricket and other games on 160 acres of Stockbridge Common Down. The owner applied to prevent a local trainer from exercising his horses over the land. The trainer claimed that he had a customary . .
CitedForbes v Ecclesiastical Commissioners for England 1872
The purpose of inclosure under the Act was after all to extinguish manorial rights of common over the land inclosed, so that it could be at the free disposal of the owner, but the Act did not extinguish customary rights. . .
CitedVirgo v Harford 11-Aug-1892
A right of common was successfully claimed to the right to play football, rounders and cricket on 65 acres of open land on a hill outside Walton-in-Gordano in Somerset. . .
CitedHammerton v Honey CA 1876
A claim was made for a local custom of common rights over Stockwell Green.
Held: The claim failed. The evidence did not show that use of the green was confined to inhabitants of Stockwell. Sir George Jessel MR said: ‘A custom is local Common . .
CitedEdwards v Jenkins 1896
Application was made to register a customary right over land.
Held: The ‘locality rule’ applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land . .
CitedNew Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
CitedIn re Turnworth Down Dorset 1978
The only effect of non-registration of rights of common was to deprive the inhabitants of the benefit of the conclusive presumption furnished by section 10 of the Act and to require them to prove the existence of the rights in question. The land was . .
CitedRegina v Suffolk County Council Ex Parte Steed and Steed Admn 1995
Judicial review was sought of the Council’s decision to refuse to register a park as a Town or Village Green.
Held: Carnwath J looked at the procedure to be followed by a council receiving an application for registration of commons right: ‘it . .
CitedRegina v Suffolk County Council Ex Parte Steed and Another CA 2-Aug-1996
Customary rights over land were not defeated by failure to register as common. ‘As of right’ meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. ‘it . .
CitedRegina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
CitedBeresford v The Government of the Commonwealth of Australia Admn 13-Oct-2005
The defendant appealed against an order for his extradition, saying that the request was defective in three respects, and that there was a bar to extradition in that, due to the passage of time since the alleged abuse is said to have taken place, it . .
CitedRegina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Disapproved in partCheltenham Builders Ltd , Regina (on the Application of) v South Gloucestershire District Council Admn 10-Nov-2003
A claim was made for the review of a decision of the Council to amend the Register of Town and Village Greens (TVG).
Held: The registration of the TVG was manifestly flawed and could not stand whether under section 14 or by way of judicial . .
CitedMinistry of Defence v Wiltshire County Council 3-May-1995
The court considered that the time period of twenty years necessary to establish a right of common under the Act was the period ending with the date of the application.
Held: The court rectified the register under section 14 so as to remove . .
CitedRegina v Norfolk County Council ex parte Perry Admn 19-Dec-1996
The period of twenty years required to establish a common under the Act was the period up to the date of the application. . .
At first instanceOxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
CitedOxfordshire County Council v Oxford City Council and Another CA 24-Feb-2004
Application was made to register the ‘trap grounds’ as a village green.
Held: Carnwath LJ: ‘The 1965 Act created no new legal status, and no new rights or liabilities other than those resulting from the proper interpretation of section 10. . .
CitedFitch v Fitch 1798
The defendants had trampled the grass on a common which the owner had mowed, thrown the hay about and mixed some of it with gravel.
Held: The court considered the rights arising from land being declared to be a common: ‘The inhabitants have a . .
CitedRegina (Laing Homes Ltd) v Buckinghamshire County Council Admn 8-Jul-2003
Land was used for ‘low-level agricultural activities’ such as taking a hay crop at the same time as it was being used by the inhabitants for sports and pastimes.
Held: The Act was not intended to prevent the owner using the land in a way which . .
DisapprovedHumphreys v Rochdale Metropolitan Borough Council Admn 18-Jun-2004
Acts of grazing and fertilising by the owner which would have contravened the 1857 and 1876 Acts if the land had been a village green at the time, prevented the land from satisfying the section 22 definition. . .
CitedJ A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .
CitedBell v Wardell 1740
The defendant argued in defence to a claim of trespass to land that there was a customary right for the inhabitants of the town to walk and to ride over a close of arable at all seasonable times.
Held: The claim was bad, because the defendant . .
CitedHall v Nottingham 1875
The parties sought to establish a customary right to enter on land, erect a maypole and to dance around it, and otherwise to enjoy the land for innocent recreation at any time.
Held: The claim was good. A custom might be understood as a local . .
CitedMillechamp v Jordan 1740
A claim was made that land was subject to a customary right for recreation.
Held: The right would be limited to ‘legal and reasonable times of year’ so as not to allow the user to deprive the landowner of all profits of the land. . .
CitedLockwood v Wood 1844
A customary right over land becomes in effect a local law. . .
CitedDelaney v Staples HL 15-Apr-1992
The claimant had been dismissed but had been given no payment in lieu of notice. She claimed to the Industrial Tribunal that this was an unlawful deduction from her wages and that therefore the Industrial Tribunal had jurisdiction.
Held: The . .
CitedBritish Amusement Catering Trades Association v Westminster City Council HL 1988
The defendant operated an amusement arcade which provided video amusement games. The authority required a licence saying that it was an ‘exhibition of a moving image’. The Association appealed.
Held: A video amusement game was not within the . .
CitedMercer v Denne 1904
Fishermen claimed a customary right to spread their nets out to dry on land owned by the plaintiff at all seasonable fishing times.
Held: The activity was a good and valid custom, even though it was not a right for recreational purposes but . .
CitedHampshire County Council v Milburn HL 1991
The 1965 Act ‘was passed to give effect to the recommendations of the Royal Commission so far as registration was concerned. The Act of 1965 did not confer any general public right of access over common land and did not set up the machinery for the . .
CitedRoyal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
CitedGouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
CitedVictor Chandler International v Commissioners of Customs and Excise and another CA 8-Mar-2000
A teletext page can be a document for gaming licensing purposes. A bookmaker sought to advertise his services via a teletext page. His services were not licensed in this country, but the advertisements were. It was held that despite the . .
CitedAbbott v Minister for Lands PC 30-Mar-1895
(From the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
CitedThe Home Office v Wainwright and Wainwright CA 20-Dec-2001
The claimants were awarded damages, following the way they were searched on seeking to enter prison on a visit. The Home Office appealed. They were asked to sign a consent form, but only after the search was nearly complete. They were told the . .
MentionedMercer v Denne CA 1905
The court was asked whether the custom for fishermen to spread their nets to dry upon a privately owned beach, if otherwise established, could apply to land added by accretion to land over which it could be shown that the custom existed.
CitedIn Re S (Hospital Patient: Court’s Jurisdiction) CA 6-Mar-1995
The carer of S sought a declaration that S’s wife and son were not entitled to remove him to Norway.
Held: The court may try an issue as to the patient’s care as between rival claimants as carers. It should not tightly restrict list of carers . .
CitedIn re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
CitedBrocklebank v Thompson 1903
Parishioners sought to assert as a common right the right to walk across the local manor to the local church.
Held: Rights which have been long enjoyed, and in the absence of evidence that the enjoyment is recent only, are deemed to have been . .

Cited by:

CitedBetterment Properties (Weymouth) Ltd v Dorset County Council ChD 2-Mar-2007
The company sought an order removing some 46 acres of land from designation as a village green. The claimant sought the amendment of the register. The parties disputed what evidence beyond that available to the committee making the decision should . .
CitedLewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
CitedGlenn and Co (Essex) Ltd), Regina (on The Application of) v HM Revenue and Customs Admn 18-Jun-2010
The company objected to the search of its offices and removal by the defendant of its computers, the officers having entered without any warrant purporting to use powers under the 1989 Act.
Held: The request for judicial review failed. The . .
CitedPaddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
CitedAdamson and Others v Paddico (267) Ltd SC 5-Feb-2014
Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to . .
CitedNewhaven Port and Properties Ltd v East Sussex County Council and Others Admn 21-Mar-2012
The company objected to the proposed registration by the defendant Council of a strip of beach land as a common. They said that it was not a ‘town or village green’ within the 2006 Act.
Held: The court rejected all grounds of objection, save . .
CitedNewhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another CA 27-Mar-2013
The port challenged the proposed registration of part of the beach at Newhaven as a village green, saying that the result would be inconsistent with their performance of their statutory duties. . .
CitedNewhaven Port and Properties Ltd, Regina (on The Application of) v Secretary of State for The Environment Food and Rural Affairs CA 14-Jun-2013
. .
CitedNewhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
CitedLittlejohns, Regina (on The Application of) v Devon County Council and Another Admn 24-Mar-2015
The claimants sought judicial review of the refusal by the defendants to register rights of common in certain lands under the 2006 Act. The defendants said that the rights asserted did not fall within the scope of transitional provisions in the 2006 . .
CitedLittlejohns and Another v Devon County Council and Another CA 6-May-2016
Appeal against rejection of request for registration of land as a common: ‘At the heart of the appeal lies the question of law whether it is possible to acquire a right of common by virtue of an express grant or (as in the present case) user after 2 . .
CitedTrail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
Lists of cited by and citing cases may be incomplete.

Land, Administrative

Updated: 09 December 2022; Ref: scu.242159