Tuesday Law Report: `User as of right' of village green

IN ORDER to establish "user as of right" within the terms of section 22(1) of the Commons Registration Act 1965 for the purposes of registration of a town or village green under section 13 of the Act, it was not necessary that the right should have been exercised in the belief that it was enjoyed by the local inhabitants to the exclusion of all other people.

The House of Lords allowed the appeal of Sunningwell Parish Council against the refusal of its application for judicial review of a decision of Oxfordshire County Council, refusing to register certain land as a village green.

The glebe at Sunningwell in Oxfordshire was an open space of about 10 acres owned by the Oxford Diocesan Board of Finance. Local people used the glebe for outdoor pursuits. In 1994 the board obtained planning permission to build two houses on the northern boundary of the glebe, and the villagers opposed that because they wanted the glebe preserved as an open space.

The parish council applied to the county council to register the glebe as a town or village green under section 13 of the Commons Registration Act 1965, so that the proposed development would be prevented by section 29 of the Commons Act 1876, which deemed encroachment on or enclosure of a town or village green to be a public nuisance. The parish council relied on the third part of the definition of a town or village green in section 22(1) of the 1965 Act, i.e. "land on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than 20 years".

The council decided to hold a non-statutory public inquiry. The inspector recommended that the application be refused, on the ground that the user of the land by the villagers had not been shown to be "as of right". He relied on the decision of the Court of Appeal in R v Suffolk County Council, ex p Steed (1996) 75 P & CR 102, in which it was held that "as of right" meant that the right must be exercised in the belief that it was a right enjoyed by the inhabitants of the village to the exclusion of all other people. In the present case the witnesses had not said that they thought the right was confined to inhabitants of the village.

The parish council applied for judicial review of the county council's decision. They were refused leave to move, and renewed their application to the Court of Appeal. The Court of Appeal granted leave to move but dismissed the substantive application on the ground that they were bound by the decision in ex p Steed.

George Laurence QC and W.D. Ainger (Price & Co) for the parish council; Sheila Cameron QC and Charles Myers (Winkworth & Pemberton) for the county council.

Lord Hoffmann said that there was an unbroken line of descent from the common law concept of nec vi, nec clam, nec precario to the term "as of right" in the Prescription Act 1832, the Rights of Way Act 1932, and the Commons Registration Act 1965.

In the case of public rights, evidence of reputation of the existence of the right was always admissible and formed the subject of a special exception to the hearsay rule. That was not at all the same thing, however, as evidence of the individual states of mind of people who exercised the right.

Use which was apparently as of right could not be discounted merely because many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowl- edge that it did not, and, accordingly, ex p Steed had been wrongly decided.

The county council should not have refused to register the glebe as a village green merely because the witnesses had not deposed to their belief that the right to games and pastimes attached to them as inhabitants of the village.

Kate O'Hanlon,

Barrister