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 using the rights asserted beyond that the use is as of right. ‘As of right’ does not require that the inhabitants should believe themselves to have a legal right. For prescription purposes under the Prescription Act 1832, the Rights of Way Act 1932 and the 1965 Act ‘as of right’ means nec vi, nec clam, nec precario, that is, ‘not by force, nor stealth, nor the licence of the owner’ The purpose of the 1965 Act was ‘to preserve and improve common land and town and village greens. ‘ ‘Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment.’
Lord Hoffmann said: ‘Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment.’
By way of explanation of the need for the long user to be without force, secrecy or permission and therefore ‘as of right’, Lord Hoffmann said: ‘The unifying element in these three vitiating circumstances was that each constituted a reason why it would not be reasonable to expect the owner to resist the exercise of the right – in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period.’
Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Wood-borough, Lord Millett
Times 25-Jun-1999, Gazette 21-Jul-1999,  UKHL 28,  1 AC 335,  3 ALL ER 385,  3 WLR 160,  NPC 74, (2000) 79 P and CR 199,  2 EGLR 94,  31 EG 85,  BLGR 651,  JPL 384,  EG 91
England and Wales
Appeal from – Regina v Oxfordshire County Council ex parte Sunningwell Parish Council CA 24-Nov-1997
The Parish Council appealed against refusal of leave to seek judicial review of a decision to reject an application for certain land to be registered as a common. . .
At first instance – Regina v Oxfordshire County Council ex parte Sunningwell Parish Council Admn 11-Jul-1996
The Parish Council sought judicial review of the county council’s decision to reject a regristation of land as a Common on the ground that the user of the land by the villagers had not been shown to be ‘as of right.’
Held: Leave to bring the . .
Wrong – Jones v Bates CA 1938
The court considered whether there had been an act by the landowner sufficient to amount to a dedication a path as a public right of way. Scott LJ said that actual dedication was ‘often a pure legal fiction [which] put on the affirmant of the public . .
Cited – Roland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
Cited – Oxfordshire 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. . .
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
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 . .
Cited – Godmanchester Town Council, Regina (on the Application Of) v Secretary of State for the Environment Food and Rural Affairs CA 19-Dec-2005
The court considered whether a pathway had become a public highway.
Held: ‘The main question for the Court is whether sufficiency of evidence of an intention not to dedicate necessary to satisfy the proviso requires, as a matter of law, that . .
Cited – 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 – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Cited – Odey and Others v Barber ChD 29-Nov-2006
The claimants sought a declaration that they had two rights of way over a neighbour’s land. One was claimed by continuous use for twenty years, and the second was said to have been implied under the 1925 Act. No express grant was suggested. . .
Cited – Lewis, 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 . .
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .
Cited – Paddico (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 . .
Cited – Adamson 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 . .
Cited – Barkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Cited – Newhaven 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 . .
Cited – Winterburn and Another v Bennett and Another CA 25-May-2016
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.87505