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Village Greens: The Last Word?

Douglas Edwards QC
Philip Petchey

. The House of Lords gave judgement today in the Trap Grounds case - Oxfordshire County Council v. Oxford City Council and Robinson.

2. Under the definition contained in the Commons Registration Act 1965 (as amended by the Countryside and Rights of Way Act 2000) (the "new" definition) use of a town or village green has to be continuing. The key question is, continuing until when? The Court of Appeal said that it meant continuing until registration. Lord Hoffman said that such a construction would make a nonsense of the Act - since any well advised landowners would be able to defeat an application by preventing the public from having access or, as in the present case, posting notices.

3. The 1965 Act does not say that rights should attach to land registered as a village green or, if they do, what rights they are. The House of Lords said that rights would be created: to use the new green generally for sports and pastimes. Similarly, the new greens would be protected by the nineteenth century legislation.

4. The registration authority, Oxfordshire County Council, had argued that an application, once made, could not be amended. The House of Lords rejected this argument. The registration authority could allow an amendment, deciding whether to do so by applying the principle of fairness.

5. Lightman J had said that application for registration of new village greens could still be made in the basis of the ‘old' definition (i.e. as originally enacted in the 1965 Act). The House of Lords rejected this construction of the 1965 Act.

6. At first instance, Lightman J had held that in certain circumstances, use of a defined track might "count" towards registration of a village green. The House of Lords declined to make any declaration about this matter.

7. The House of Lords also rejected a human rights argument. It may be that, accordingly, any challenge to the Commons Registration Act 1965 (or the soon-to-be-enacted Common Bill, currently before Parliament) will have to be made in the European Court of Human Rights.

8. Note that the laws on this complicated subject will soon change again when the Commons Bill is enacted.

9. The speeches will repay careful study. There was some dissent from Lord Scott and Baroness Hale. Of particular importance is what Lord Hoffman said about the ability of use for lawful sports and pastimes to co-exist with other uses; and Lord Scott had some interesting observations about land owned by local authorities. The Cheltenham case which held that a neighbourhood could not straddle two localities was questioned as was that part of the judgement in the Laing case about the compatibility of village green status with low level agricultural use.

10. Summary:

a) In a claim to register a new village green, qualifying use has to continue until the date of application;

b) Rights attach to a new village green;

c) The nineteenth century legislation protecting village greens applies to a new village green;

d) The old definition of village greens cannot be relied upon in new applications;

e) An application can be amended, subject to the principle of fairness to all the parties

The decisions means that it will still be possible for local residents to seek to register a new village green on the basis of 20 years dog walking and other informal recreation.

Douglas Edwards and Jeremy Pike (instructed by Public Law Solicitors) appeared for Miss Robinson, Charles George QC and Philip Petchey (instructed by Kate Chirnside) appeared for Oxford City Council

2 Harcourt Buildings, the Chambers of Robin Purchas QC will be holding a seminar Village Greens: Red, Green or Amber? on Monday 27 November 2006, to be held in the Gary Weston Library, Southwark Cathedral for half a day.

To book please contact the course registrar Kerry Leech at Contact Property Training, telephone: 0118 987 2266. Or for further information please contact Jo Chadwick, Chambers Manager at 2 Harcourt Buildings on or 020 7353 8415.