The Very First Village Green Case of Modern
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THE EFFECT OF RECENT COURT JUDGMENTS ON REGISTERING NEW VILLAGE GREENS Introduction 1. The very first village green case of modern times1 concerned an application to register a local authority car park as a town or village green2 and the next important case an application to register land owned by the NHS to build a new hospital in Sudbury3. No-one suggested in these cases that because the land was owned by a local authority or was held for statutory purposes it could not be registered as a town or village green. R (Beresford) v Sunderland City Council4 concerned land held by a local authority and the House of Lords specifically called for information as to the basis on which it was held. I did not suggest that the land was not registrable because it was owned by a local authority under statutory powers, and the House of Lords did not suggest that this was the case either. Most significantly of all, the Trap Grounds case5, the application was to defeat development of a housing site owned by Oxford City Council. Declarations were sought on no fewer than ten different issues arising on the law of village greens. There was however no suggestion that because the land was held by the City Council under the Housing Act that it was not registrable as a town or village green6. 2. Where then did the principle of statutory incompatibility come from? 3. It first arose during the argument at first instance in R (Newhaven Port and Properties Limited) v East Sussex County Council7. 4. In that case there was a lot of discussion about the effect of the Port’s bye-laws. In the argument, Ouseley J raised the question of what would happen if land were registered as town or village green and the relevant Council made bye-laws under the Commons Act 1899 which were incompatible with the pre-existing bye-laws. In a case called Western Power Distribution Investments Limited v Cardiff City Council8 he had held that the City Council could not make land which was held as a park under section 164 of the Public Health Act 1875 into a nature reserve because to do so would conflict with the purpose for which the land was held, namely a park accessible to the public for recreational purposes. 5. This then led to a full blown argument that registration as a town or village green was incompatible with the statutory powers of the port. 1 I.e after Parliament had passed the Commons Registration Act 1965 providing for the registration of town and village greens. 2 I.e. New Windsor Corporation v Steed [1975] Ch 380. This concerned a customary green and the land had always been subject to recreational rights for local people, such as they were, so it would not have been an obvious case in which to argue a point about statutory incompatibility. 3 R v Suffolk County Council, ex parte Steed (1996) 75 P & CR 102 (CA). 4 [2004] 1 AC 889. 5 I.e. Oxford County Council v Oxford City Council and Robinson 6 The land in R (Barkas) v North Yorkshire Council was also a case where land was held under Housing Act powers. As you will appreciate, however, there were rather more obvious reasons why the land should not be registered as a village green and it was these that were the focus of the case. 7 [2015] AC 1547. 8 [2011] EWHC 300 (Admin). 1 6. Ouseley J accepted this argument. He did so however basing himself on British Transport Commission v Westmorland County Council9. This was a case where the House of Lords accepted an argument in respect of a public footpath that there might not be an intention to dedidicate by a railway company in circumstances where it was reasonably foreseeable that the land over which the claimed path ran might be required for the purpose of the statutory undertaking. 7. The Registration Authority won the appeal to the Court of Appeal by arguing (i) that Westmorland had no application because the establishment of a new town or village green did not depend upon there being an intention to dedicate: one simply looked at the words of the statute (ii) the relevant statute (section 15 of the Commons Act 2006) didn’t say anything about land not being registrable if registration might establish a use which would inhibit the statutory purposes for which a port authority or local authority held the land. 8. In its turn, on appeal to the Supreme Court, this led to a detailed examination of the law of public rights of way in Scotland and Ireland; the landowner was able to suggest that the law of England, as set out in Westmorland, applied in Scotland also, where public footpaths came about just by long use and not by implied dedication; and with reference to an Irish case, that perhaps the English law was not dependent on implied dedication either. 9. All very abstruse law. And as Lord Neuberger and Lord said in their judgment, it is only relevant by analogy. However they did find it significant in our view that historically in both English law and Scots law, albeit for different reasons, the passage of time would not give rise to prescriptive acquisition against a public authority, which had acquired land for specified statutory purposes and continued to carry out those purposes, where the user founded on would be incompatible with those purposes10. 10. Nonetheless, by the conclusion of the argument we had come a long way from the simple propositions on either side (i) that there was nothing in the Commons Act 2006 about land not being registrable if it was held for statutory purposes and (ii) that Parliament couldn’t possibly have intended land of a statutory port undertaker to be registered. 11. The landowner was running the argument in a case in which the claimed village green was submerged beneath the sea for 42% of the time: helping to underline the argument that surely Parliament could not have intended registration of the land of a port undertaker, at least. 12. So this is how the Supreme Court came to adopt an argument which, before the case in which it triumphed, no-one had ever thought of. 13. There is a further surprising aspect to the case. 14. As we have seen the argument on statutory incompatibility was first raised in the High Court. The point had not been argued before the Inspector who had held the non-statutory public 9 [1958] AC 126 (HL). 10 See paragraph 91. 2 inquiry so that there had been no consideration of the particular facts of the case; and of course the registration authority had reached no conclusion about what those facts were. 15. So before the Supreme Court, the registration authority argued that if there were a principle of statutory incompatibility (contrary to its principal submission), the matter should go back to the decision maker for redetermination11. The facts supported them thus far: the land had been used since before the First World War without any conflict arising between what the port wanted to do and what local people wanted to do. 16. The Supreme Court however did not accept the registration authority’s argument. As I read the judgment, what they are saying is that it is so obvious that there is a conflict between the powers of the port and the constraints on the land if it were registered as a town or village green, it was not necessary to call evidence to demonstrate the fact. 17. Thus was the scene set for further litigation. One guesses that at least half the land that is subject to applications for registration as a new town or village green is owned by local authorities. Local authorities are creatures of statute. All that they do is by virtue of statutory powers. To put it no higher, there is considerable scope for arguing statutory incompatibility wherever an application is made to register the land of a local authority as a town or village green. 18. In this context, one can begin by identifying two contrasting views. 19. The first emphasises the fact that there was apparently no factual conflict in the Newhaven case between the use of the port and the use by local people. Statutory incompatibility is therefore seen to be a legal issue, it says, which is all to do with potential conflict and not actual conflict. It applies to the land of local authorities and it applies wherever a local authority is able to show that there might be a conflict between the exercise of the statutory powers and use of the land by local people. 20. The second says that the principle applies only to the land of statutory undertakers, and not to the land of local authorities. 21. It would seem that neither argument can be correct. 22. If the first argument is correct, how can it be that the land was registered in the Trap Grounds case? Or in R (Lewis) v Redcar? These of course were both cases where the application had been brought to frustrate the plans of the local authority owners of the land to develop the land in question. Both cases are referred to by the Supreme Court in Newhaven without the Court suggesting that they are wrong. 23. The second argument does not seem to be correct because there is nothing in principle different between the way in which a statutory undertaker holds land under a statute and the way in which a local authority does.