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 is accepted that if the matter has to be reconsidered by the Council on its merits, then some form of oral hearing will in practice be necessary. Although there is no provision for such a procedure in the regulations, I understand that authorities do sometimes organise non-statutory hearings, where the written submissions disclose significant conflicts of evidence. This is appropriate.’ and ‘Some oral procedure seems essential if a fair view is to be reached where conflicting recollections need to be reconciled, even if the absence of statutory powers makes it a less than ideal procedure’. As to the effect of section 19(2): ‘whatever rights may have been thought to exist by virtue of actions or events before 1970, they ceased to have effect. Thereafter the land was deemed not to be a ‘town or village green’, within any of the three parts of the definition’. User ‘as of right’ meant that the people indulging in sports and pastimes on the land must have believed that they were exercising a right claimed by the inhabitants of a particular locality. The court in exercise of its jurisdiction under Section 14 is not confined to remedying errors of law, but may consider the overall merits of the amendment.
The users had to emanate from a locality by which was meant more than a place or geographical area: ‘In the present statutory context, I do not think that a piece of land used only by the inhabitants of two or three streets would naturally be regarded as a ‘town or village green’. The word ‘locality’ in the definition of village green should be interpreted with regard to its context.
Such an approach is also consistent with that of Kekewich J. in Edwards v. Jenkins, where the issue was whether a green could exist for the benefit of three parishes. He held that it could not. He referred to the authorities which showed that the use must be that of the inhabitants of a ‘district’, and continued:
‘I take it that the judges have used the word ‘district’ as meaning some division of the county defined and known to the law, as a parish is; and that I should be extending their meaning if I were to say that a custom of this kind could be claimed as regards several parishes.
Although the actual decision has been doubted (see New Windsor case,) the words underlined fairly reflect the earlier cases there cited, and indeed the concept of a ‘local law’ as explained in Hammerton v. Honey. The word ‘locality’ in the Act seems intended to bear the same connotation as the word ‘district’ as used in such cases’.
Judges:
Carnwath J
Citations:
(1995) 70 P and CR 487
Statutes:
Commons Registration Act 1965 1(2)(a) 14 22
Jurisdiction:
England and Wales
Citing:
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 by:
Appeal from – 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 – 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. . .
Preferred – 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 – 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. . .
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 – Betterment 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 . .
Cited – Leeds Group Plc v Leeds City Council ChD 21-Apr-2010
Application had been made to the defendant to register as a common land belonging in part to the claimant and in part to the defendant. The claimant objected to the registration. The defendant did not. . .
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 – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
‘The principal issue in these two appeals relates 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 . .
Lists of cited by and citing cases may be incomplete.
Land, Local Government
Updated: 09 May 2022; Ref: scu.192096
