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. The claimant was entitled to register part only of the area of land original included. An application was not to be defeated by part of the land being inaccessible where for example it was overgrown, or under a pond.
The Hon Mr Justice Lightman
[2004] EWHC 12 (Ch), Times 30-Jan-2004, [2004] 2 WLR 1291, [2004] Ch 253
Bailii
Commons Registration Act 1965, Commons Registration (New Land) Regulations 1969
England and Wales
Citing:
Cited – Fitch 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 . .
Cited – Abbott 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. . .
Cited – Abercromby v Fermoy Town Commissioners 1900
A right of common over land can take the form of a right for recreation to promenade (or wander) over land and every part of it. . .
Cited – Hampshire 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 . .
Cited – Regina 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 . .
Cited – New 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 . .
Cited – Wyld v Silver 1963
A purchaser found that he was restrained from building on his land which interfered with a legal but ‘ancient and outmoded’ right to hold a fair on the land on Fridays in Whitsun Week in every year.
Held: At common law the principle is clear . .
Explained – Regina 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 . .
Cited – In re West Anstey Common 1985
Though an enquiry as to whether land is a green can only be initiated by an application for the addition of the claimed green to the register by some individual, the enquiry should not be seen as civil litigation between the applicant and any . .
Cited – Regina 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 . .
Cited – Secretary of State for Education and Science v Tameside Metropolitan Borough Council HL 21-Oct-1976
An authority investigating an application for registration of rights of common over land has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant information.’ A mere factual mistake has become a ground of judicial . .
Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
Cited – Cheltenham 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 . .
Cited – Regina 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: . .
Cited – Hunter Douglas Australia Pty v Perma Blinds 1970
(Australia) The court considered the meaning of the word ‘deemed’ in a statute. Windeyer J said: ‘the verb ‘deem’, or derivatives of it, can be used in statutory definitions to extend the denotation of the defined term to things it would not in . .
Cited – Ministry 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 . .
Cited – Regina 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. . .
Cited – Regina v Doncaster Metropolitan Borough Council ex parte Braim 1986
The court considered whether the lease of part of Doncaster Common (not registered as such) fell within section 123(2A) of the 1972 Act.
Held: For over a century the public had, as of right, used Doncaster Common for what could be conveniently . .
Cited – In 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 . .
Cited – South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV HL 1987
There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to . .
Cited – Tehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
Cited – Fairey v Southampton City Council CA 1956
The landowner denied that a public right of way had been created over his land. Under the 1932 Act, 20 years user expiring at any time, even before the Act came into force, was capable of giving rise to a deemed dedication of a public highway under . .
Cited – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – Yew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
Cited – Carson v Carson 1964
The court echoed the description of the rule against retrospectivity in an Act so as to remove existing right, quoting Maxwell ‘Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain . .
Cited – British Telecommunications Plc and Bloomsbury Land Investments v Gloucester City Council Admn 26-Nov-2001
The land site to be developed was of archaeological interest and the relevance of a mitigation strategy was considered.
Held: It is for the planning authority to decide whether there are likely to be significant effects on the environment . .
Cited – Bernard Wheatcroft Ltd v Secretary of State for the Environment CA 1982
The developer originally sought permission for 450 homes. That was refused. Before the appeal, it proposed an alternative with 250 homes to be adopted only if the size of the development were considered to be the critical factor. The inspector . .
Cited – Regina (Alfred McAlpine Homes Ltd) v Staffordshire County Council 17-Jan-2002
The court refused to set aside the council’s decision to register as a common a lesser area then applied for. ‘ Does the council have power to register a smaller area than applied for? It is perfectly true that there is no express power in either . .
Cited – Turner v Walsh PC 1881
(From Supreme Court of New South Wales) The appellant owned land in New South Wales, acquired from the Crown in 1879, over which there was a track. The respondent was sued for trespass when he went upon the track and removed fences running across it . .
Cited – Dyfed County Council v Secretary of State for Wales CA 30-Nov-1989
The Council had, under section 53 of the 1981, Act modified its definitive map to add five footpaths including that under appeal. An inspector had refused to confirm three of the footpaths, including the one in dispute, and in accordance with his . .
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited by:
Cited – Whitmey, Regina (on the Application of) v the Commons Commissioners CA 21-Jul-2004
The applicant sought to leave to appeal against refusal of his challenge to the registration of land as a green.
Held: The 1965 Act did not limit the registration of greens to those which were registered by 3 January 1970. The Commons . .
Appeal from – Oxfordshire 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. . .
At first instance – 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 . .
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 10 December 2021; Ref: scu.192081