QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
On the Application of
Laing Homes Limited
|- and -
|Buckinghamshire County Council
|The Secretary of State for the Environment Food and Rural Affairs
Stephen Morgan Esq. (instructed by Buckinghamshire County Council Legal Services) for the Defendant
James Maurici Esq. (instructed by The Treasury Solicitor) for the Interested Party
Hearing dates : 25th March - 2nd April 2003
Crown Copyright ©
Mr Justice Sullivan :
"(i) that there has been for at least 20 years before 25th August 2000 recreational use (for "lawful sports and pastimes") of the three fields in question at Widmer Farm, by the inhabitants of the locality best described as the Ecclesiastical Parish of Hazlemere;
(ii) that this recreational use has been substantial for at least the said 20 years, and has been predominantly by the inhabitants of the locality I have referred to;
(iii) that this recreational use has been carried on as of right, openly, without force, without permission express or implied, and not in defiance of any prohibition." (para.15.1 Inspector's Report, unless otherwise indicated, further references in parenthesis are to chapter or paragraph numbers in the Report.)
The Statutory Framework
Section 1 provides that, "There shall be registered land which is common land or a town or village green", and rights of common over such land.
"no land capable of being registered under this Act shall be deemed to be common land or a town or village green unless it is so registered."
"it shall be vested as Parliament may hereafter determine."
"(a) a register of common land; and
(b) a register of town or village greens."
"The registration under this Act of any land as common land or as a town or village green, or of any right of common over such land, shall be conclusive evidence of the matters registered, as at the date of registration, except where the registration is provisional only."
"Regulations under this Act shall provide for the amendment of the registers maintained under this Act where
(a) any land registered under this Act ceases to be common land or a town or village green; or
(b) any land becomes common land or a town or village green; or
(c) any rights registered under this Act are apportioned, extinguished or released, or are varied or transferred in such circumstances as may be prescribed;"
" 'town or village green' means [a] land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or [b] on which the inhabitants of a locality have a customary right to indulge in lawful sports and pastimes or [c] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years."
"3(1) Where, after 2nd January 1970, any land becomes common land or a town or village green, application may be made subject to and in accordance with the provisions of these Regulations for the inclusion of that land in the appropriate register and for the regulation of rights of common thereover and of persons claiming to be owners thereof.
3(4) An application for the registration of any land as common land or as a town or village green may be made by any person, and a registration authority shall so register any land in any case where it registers rights over it under these Regulations."
"Particulars of the land to be registered, i.e. the land claimed to have become a town or village green.
Name by which usually known
Colour on plan herewith"
"8(3) Where the land is stated to become a town or village green by the actual use of the land by the local inhabitants for lawful sports and pastimes as of right for not less than 20 years, and there is a declaration by a court of competent jurisdiction to that effect, an office copy of the order embodying that declaration."
"but where it appears to the authority that any action by the applicant might put the application in order, the authority shall not reject the application under this paragraph without first giving the applicant a reasonable opportunity of taking that action."
"98(2) In subsection (1), in the definition of "town or village green" for the words after "lawful sports and pastimes" there is substituted "or which falls within subsection (1A) of this section."
98(3) After that subsection there is inserted
(1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either-
(a) continue to do so, or
(b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions."
"12 Proceedings for prevention of nuisances in town and village greens allotments for exercise and recreation
And whereas it is expedient to provide summary means of preventing nuisances in town greens and village greens, and on land allotted and awarded upon any inclosure under the said Acts as a place for exercise and recreation: If any person wilfully cause any injury or damage to any fence of any such town or village green or land, or wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay manure, soil, ashes, or rubbish, or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use or enjoyment thereof as a place for exercise and recreation, such person shall for every such offence, upon a summary conviction thereof forfeit and pay, in any of the cases aforesaid, and for each and every such offence, over and above the damages occasioned thereby, any sum not exceeding [level 1 on the standard scale] "
"29 Town and Village Greens
An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance, and if any person does any act in respect of which he is liable to pay damages or a penalty under section twelve of the Inclosure Act 1857, he may be summarily convicted thereof upon the information of any inhabitant of the parish in which such town or village green or recreation ground is situate, as well as upon the information of such persons as in the said section mentioned."
The Inspector's Report
The effect of registration
(i) Whether the Act conferred rights on the local inhabitants, or whether it merely enabled the fields to be placed on a register as a village green with a view to future legislation conferring rights over land?
(ii) Whether a registered village green is subject to section 12 of the 1857 Act and section 29 of the 1876 Act ("the nineteenth century legislation")?
"But the difficulty about this 20-year user is that the act does not tell us what rights, if any, ensue to the inhabitants by virtue of a 20-year user. It enables the land to be registered as a town or village green, but that mere fact of registration confers no right. And at common law 20-year use gives no rights All is left in the air. The explanation is that Parliament intended to pass another statute dealing with these and other questions on common land and town or village greens. This Act twice refers to matters which 'Parliament may hereafter determine': see section 1(3)(b) and 15(3). I hope that another statute will not be long delayed. But, if there should be delay, I would be tempted to infer from this Act of 1965 that Parliament intended that all land registered as 'town or village green' should be available for sports and pastimes for the inhabitants: and that all land registered as 'common land' should be open to the public at large: so long as that did not interfere with the rights of the commoners or injure the pasture: and that it should be managed and maintained by the local authority at their expense: see sections 8 and 9." (p.391H-392G)
"I also agree that as the Act stands, without further legislation, such use confers no rights on the public."
"I find it difficult to conclude other than that Parliament intended, in section 22 to open the way to the creation of new rights The analogy is not exact but I see class C as a way of establishing rights just as section 1(c) of the Rights of Way Act 1932 (now section 31 of the Highways Act 1980) provided a means of proving the existence of a highway An actual dedication need not be proved. I would construe the class C definition as having the same effect in making proof of the appropriate use sufficient to create a right."
"It is unclear what rights, if any, registration would confer upon the villagers. The Act is silent upon the point."
" registration would prevent the proposed development because by section 29 of the Commons Act 1876 encroachment and or enclosure of a town or village green is deemed to be a public nuisance."
The domestic law challenge
(1) On the evidence as recorded by the Inspector, once the use of the footpaths around the edges of the fields was discounted, there was insufficient evidence of use of the entirety of the three fields for lawful sport and pastimes over the 20-year period beginning in August 1980, from which Laings could reasonably have deduced that those using the fields were asserting a right to use them as a village green. The Inspector had failed to carry out a field-by-field analysis of the recreational use of the fields excluding the use of the footpaths as such by walkers with or without dogs.
(2) The Inspector erred in concluding that the use of the fields for an annual hay cut for well over half of the 20-year period was not incompatible with the establishment of village green rights.
(3) The local inhabitants' use of the fields for recreational purposes was not "as of right" because they had expressly acknowledged, when responding to consultations relating to planning applications/Local Plan proposals that there were no rights to engage in lawful sports and pastimes on the fields, by contending that they should "revert to full agricultural use".
(4) The Registration Authority was not entitled to register a village green for the benefit of the inhabitants of the ecclesiastical parish of Hazlemere, because an ecclesiastical parish cannot be a "locality" for the purposes of section 22(1) of the Act, because there was unfairness in the late identification of the ecclesiastical parish as the relevant locality, and because there was no evidence of any nexus between the use of the fields for lawful sports and pastimes and the ecclesiastical parish.
Analysis and Conclusions
Ground (2): Agricultural Use
"14.46 Thus in the end the resolution of the present application stands or falls, in my judgment, on this point. The view which I have formed is that the annual cutting of grass and its collection as hay on each of the three application fields for well over half of the key 20 year period is not incompatible with recognising the establishment of village green rights, which is otherwise clearly warranted here. The same goes for the very low level of use by grazing animals (minimal in Fields 1 and 3, slightly more in Field 2) which I have concluded might have been encountered, at some times, during parts of the first two or three years of the 20 year period.
14.47 If I am wrong on this point, and these things are incompatible with the establishment of a village green under the 1965 Act, then I make it plain that my overall conclusion and recommendation would have to be changed completely. However in my judgment the "low level" agricultural activities which Mr Pennington undertook on the subject fields from August 1980 onwards were compatible with the establishment of village green rights."
"14.37 An annual hay crop would generally be taken from those of the fields which had not had cattle on them in the grass-growing season, until the early 1990s. Thus from summer 1980 (and possibly previously, from Mr Pennington's own evidence) a summer hay crop would usually be taken from Fields 1 and 3, and it can reasonably be assumed that for most of those years, until Mr Pennington gave up, a hay crop would be taken from Field 2 as well.
14.38 The methods used to gather a crop of hay from a grass field were explained in some detail by Mr Pennington, as were the preparatory steps of harrowing/rolling/ fertilising which are carried out in the spring. These matters were not in any real dispute."
"14.40 I have registered the point that none of the Applicant's witnesses claimed to have the right to stop the haymakers from carrying out their activities. They would "steer clear" of Mr Pennington's equipment while it was in use, to whatever extent was appropriate to the apparent danger; they would not deliberately interfere with the cut hay laid out to dry before collection. Likewise, though this was less discussed in the evidence, they would "steer clear" of any cattle they happened to see in the fields (the evidence however suggested that encounters with cattle were minimal)."
"14.41 Are haymaking, and possible occasional encounters with a small number of grazing animals (particularly in Field 2) in the early years, incompatible with village green status, and in particular with establishing village green rights?"
"14.2 One area of particular concern to me, but on which I received comparatively little assistance from the case and authorities cited to me by the parties, is the extent to which the exercise, and "generation by prescription" of village green rights for sports and pastimes can be compatible with the continued carrying out of some level of 'agricultural' activity on the land concerned, in the shape of hay cutting and/or grazing. All parties were agreed, and it seems obvious, that village green rights are incompatible with arable use of land. Common sense suggests that they are unlikely to be generated on enclosed land which is intensively used for pasturing animals. However Widner Farm is not one of those easy cases."
"14.41 Common sense suggests that someone has to keep the grass down on any village green which consists of the normal grassy area which one typically expects. It would be a rare village green where the grass could be kept short enough on a permanent basis simply by the actions of human feet. No doubt with many established village greens it will be the local inhabitants themselves, perhaps through their Parish Council, who keep the grass cut. However, when a village green is being established through usage it seems to me almost inevitable that it will be the landowner, or his tenant or licensee, who does such cutting of the grass as does take place, whether by mechanical means or by some level of grazing which is compatible with the village green uses.
14.42 The fact that people on the fields in practice have to get out of the way of the equipment being used to cut the grass and collect the hay does not seem to me to argue strongly in any particularly direction; people routinely have to get out of the way of the sort of mowing equipment which is used to keep the grass down on playing fields and other recreation areas, including established town or village greens. The same principle would seem to apply to the fact that most people would tend to avoid close contact with any grazing beasts they happened to see on a "village green" area.
14.43 Nevertheless I do not find this an easy question. I am assisted however by the fact that in a number of the leading cases on village greens it seems to have been assumed without question that there in no inherent incompatibility between grazing at least, and village green rights. Most notably, in the Sunningwell case itself, in the House of Lords:  AC 335, at p.358, Lord Hoffmann expressly quotes from the report of the Inspector, Mr Vivian Chapman, who had held the inquiry in that case:
'Third, the land has been used throughout for rough grazing so that informal public recreation on the land has not conflicted with its agricultural use and has been tolerated by the tenant or grazier.'
It seems to me inconceivable that Lord Hoffmann or the House of Lords (or indeed Mr Chapman) should be taken as having missed some obvious point that village green use is automatically incompatible with the land being grazed by the animals of the tenant or grazier. It was also noted by the Court of Appeal in New Windsor v. Mellor  Ch. 380, at p.390 that the area concerned there ('Bachelors' Acre') had at one point in its history been let as a pasture, while still being subject to rights for 'recreations and amusement'.
14.44 My attention was also drawn to Gadsen on the law of Commons, where at section 13.07 under the sub-heading 'Greens and rights of common' there is some discussion of how village green rights can be compatible with rights of common (which presumably would include grazing), and with the taking of hay. I do not find it easy to relate the passage clearly to the present case, but it certainly does not displace the view I have formed that there is nothing inherently incompatible between village green use and either a moderate level of grazing or the cutting of the grass for hay.
14.45 I was also asked to consider Section 12 of the Inclosure Act 1857, which among other things prohibits the leading or driving of any cattle or animal on a town or village green 'without lawful authority'. It seems to me that the answer to this must be that the owner of the land concerned, or his tenant or licensee, does have the lawful authority to place his cattle on the green, at least in any manner which is not incompatible with village green rights. The converse would be that village green rights can be established in circumstances where there happens to be some lawful, and compatible, grazing, or indeed hay-cutting, on the land."
"On principle it must be that the recreational use in such circumstances is subservient to the rights of the owner of the land and the commoners In the event of conflicting priorities, the original property rights of owners and commoners should prevail. Thus, for example, if the land is traditionally cut for hay, the existence of the recreational use will not allow inhabitants to enter and spoil the hay. On the other hand it also seems, as a matter of principle, that the owners of the land, or rights over the land, may not exercise their rights in such a way as to wilfully inhibit or prevent the rights of recreation."
"The custom appears to be established. The inhabitants have a right to take their amusement in a lawful way. It is supposed, that because they have such a right, the plaintiff should not allow the grass to grow. There is no foundation in law for such a position. The rights of both parties are distinct, and may exist together. If the inhabitants come in an unlawful way, or not fairly, to exercise the right they claim of amusing themselves, or to use it in an improper way, they are not justified under the custom pleaded, which is a right to come into the close to use it in the exercise of any lawful games or pastimes, and are thereby trespassers."
"until later the question foreshadowed earlier, of what the legal consequences are when the evidence suggests both a village green user and some modest level of 'agricultural' type activity coexisting on the land for a significant part of the prescription period."
"The real question, and the key question for me in terms of advising the County Council, is what effect this level of 'agricultural' activity in the fields has on the proposition that the village green type uses, which I have already found were being carried on extensively and openly from at least 1979 and probably earlier, truly were 'as of right' and sufficiently continuous."
"the evidence was that the agricultural activities would have had very little effect on the lawful sports and pastimes being carried out on the application site".
"To make good a prescriptive claim in this case it is not necessary for the claimant to establish that he and his predecessors have exercised the right claimed continuously. This is a profit of a kind that, of its nature, would only be used intermittently. Flocks would not, for instance, be on the down at lambing time But the user must be shown to have been of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed."
"one has to have here a user of the land of such a character and degree of frequency as to indicate an assertion of a right by a claimant".
"I agree with Carwath J. in Reg. V. Suffolk County Council Ex parte Steed (1995) 70 P. & C.R. 487, 503, when he said that dog walking and playing with children were, in modern life, the kind of informal recreation which may be the main function of a village green. It may be, of course, that the user is so trivial and sporadic as not to carry the outward appearance of user as of right" (p.357D).
"The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been 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 the user and in the third, because he had consented to the user, but for a limited period."
"In Mann v. Brodie Lord Blackburn put the rationale as follows, at p.386: 'where there has been evidence of a user by the public so long and in such manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was.'"
"the user by the public must have been, as Parke B. said in relation to the private rights of way in Bright v. Walker 1 C.M.& R. 211, 219, 'openly and in the manner that a person rightfully entitled would have used it.' "
"Tomlin J. meant to say more than Lord Blackburn had said in Mann v. Brodie, 10 App.Cas. 378, 386, namely that they must have used it in a way which would suggest to a reasonable landowner that they believed they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which, as I hope I have demonstrated, depends upon evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose, the actual state of mind of the road user is irrelevant."
Ground (1): Use for lawful sports and pastimes
"14.23 I thus conclude that that which the local inhabitants were doing on the application land, from the late 1970s through until the application in August 2000, they were doing without force, openly, without permission express or implied, and not in defiance of any express prohibition. Thus prima facie they were doing these things "as of right", in the terms of the statute. However I recognise that in dealing with this aspect of the matter I have run ahead of the question whether what they were doing on the land was of the nature of "indulging in lawful sports and pastimes", and sufficiently extensive and continuous to meet the requirements of the 1965 Act. This is what I now turn to
14.24 I entirely take the point that some of the evidence was from people whose own regular habits involved walking round the paths that developed around the field boundaries, and that because of the nature of the vegetation on site some of the activities mentioned, such as blackberrying, must have taken place on or near to those boundaries and footpaths. Likewise the evidence, and common sense suggested, that certain activities such as cycling by children would tend to be confined to the field margins at certain times, when the grass in the middle of the fields was somewhat longer and awkward to cycle in.
14.25 However, it seems to me, from the evidence which was given at the Inquiry, from the additional written material, and from the numerous returned questionnaires (accepting that those latter two categories have less weight than evidence tested by cross-examination) that there is abundant evidence of continuous use by local people of the whole surface of these fields for at least the 20-year period required. I am conscious of what was said in the House of Lords in Sunningwell as to the nature of "lawful sports and pastimes" in modern times. Here, in addition to the dog walking and playing with children there referred to, there was evidence about general walking (i.e. without dogs), children playing by themselves, kite flying, bird watching, family games, football and other ball games, cycling, regular games by the local Scouts and Guides (particularly in Fields 2 and 3), picnicking, and many other activities besides. I entirely accept that not all of these things would be going on on all the fields at all times, and that some of the activities probably waxed and waned according to fashion, and the predominant age groups of the local people using the fields during any particular period. However the overall period is one of substantial levels of use for recreational activities.
14.27 Clearly the point, mentioned in Sunningwell, that the user must not be so trivial and sporadic as not to give the appearance of user as of right, needs careful consideration in a case where a large area is claimed. It seems to me however, as indicated above, that there is abundant evidence of regular, continuous user of these fields by local people for a variety of lawful recreations and pastimes for the purpose of the Act. I do not consider that the fact that these fields do not look like the conventional "picture postcard" village green is relevant to whether they meet the requirements for that status."
"I have considered the argument advanced by Laings in this regard. I have some difficulty with the proposition that an absentee landlord with an almost absentee grazing licensee can rely on that absentee status to claim that they ought not or could not be taken to have notice of activities carried out quite extensively and openly on their land. In my view that is not the correct approach in village green cases under the 1965 Act. However, as already indicated, I find that Laings and Mr Pennington did during the relevant period have ample actual notice that local people were coming onto the land, and at least constructive notice that they were using it in ways which could potentially give rise to a village green claim (e.g. not just sticking to fixed footpaths but using it more informally and generally)."
(a) that the use was sufficiently frequent throughout the day, as opposed to frequent at certain times and infrequent at others,
(b) that throughout the day the frequent use extended to the great majority of each of the three fields,
(c) that in analysing continuity, frequency and extent, use by walkers with or without dogs should be excluded if it merely took place around the edges of the fields (along the public footpaths confirmed in the Footpath Order in June 2000) or diagonally across them.
"I have already acknowledged that some of the regular users had a tendency to go on the land in the early mornings, the evenings or at weekends, but this is by no means true of all users" (14.20).
"that there is abundant evidence of continuous use by local people of the whole surface of these fields for at least the 20-year period required"(14.25, my emphasis).
"the fields would appear to have been used on an informal basis with no definitive line taken" (14.20).
"The claimed footpaths provided useful shortcuts between Hazelmere and facilities of Widmer End in or near Grange Road, and to North Road. They were also used for recreation and, especially, for exercising dogs" (para.22, Footpath Inspector's decision letter).
"Laings assert that there is informal use by the public of the fields, but no specific footpath routes. I accept from signs of use on the ground and from my observations of members of the public in the fields in the course of my site visits, that public use of the fields is not restricted to the footpaths claimed in the Order. Nevertheless, the routes of the claimed footpaths are discernible on the ground, and there is unchallenged evidence of considerable weight that their routes have been in such use as to satisfy Section 31 of the 1980 Act. Use of other parts of the fields would not, in my view, affect the accrual of public rights over the claimed footpaths."
Ground 3: Residents' Representations
"Figure 4.1.4 shows the variation in name given by the respondents. It shows that most respondents referred to the area simply as "The fields" often with some locational prefix e.g. "The school fields". The term H7 refers to proposals in a draft Wycombe Local Plan in the 1960s where Grange Farm, Terriers Farm, Rockalls Farm together with these fields of Widmer Farm were proposed for housing development. These proposals were rejected and the term H7 long since removed from official documentation, but it lives on in the memories of the local population who strongly opposed the development proposals."
" an inquiry into the subjective state of mind of the users of the [fields] would be contrary to the whole English theory of prescription, which depends upon evidence of acquiescence by the landowner " (Sunningwell, p.354G).
"There is then W.H. Smith (Eziot) Ltd  1 WLR 853 where the defendants claimed a prescriptive right to park vehicles on the plaintiffs' property and the plaintiffs sought an interlocutory injunction. It appears from the judgment of Balcombe L.J., at p.861A-B, that the plaintiffs had been persistently asserting in correspondence that the defendants had no right to park cars there and the defendants had been in the correspondence in practice conceding that and negotiating for a licence to park. Therefore it was held that the user by parking could not have been user as of right. That seems to me, with all respect to be correct; it was difficult for the defendants to assert their user by parking had been as of right, when their solicitors had written in 1978, "Our clients appreciate that they do not have a right to park on the yard in question."
"It was suggested that throughout the relevant period Laings knew that most of the users of the fields were aware of and opposed to its plans to develop the fields in a way wholly incompatible with the creation of a village green. Nothing in the Sunningwell decision suggests that such actual knowledge by the owner is irrelevant to the question of the objective appearance to the owner. That point simply was not argued in the Sunningwell case."
"I am not persuaded that the fact that some local people were aware that from time to time Laings would put in planning applications, or local plan submissions, aimed at securing eventual residential development of the Widmer fields, should be taken as some kind of general notice from Laings to all the local inhabitants that they (Laings) did not intend to acquiesce in the establishment of village green rights. That seems to me to be at odds with the approach of the House of Lords in Sunningwell, and wrong in principle. I do not believe it is right that some sort of inquest has to be carried out as to whether local people would, if they had thought about it during the relevant period, have surmised that the landowner would or would not have viewed their activities with favour, because of his long-term ambitions for the land in question. What matters is what the local people actually did on the land, whether they did it openly, and sufficiently extensively, without breaking in, and so forth, not an analysis of their mental state, or that of those of them who happen to follow local planning debates. It also appears to be true, as the Applicants observed, that quite a lot of successful village green applications occur in circumstances where the landowner harbours or has revealed development ambitions for the land concerned."
Ground (4): Locality
"Name by which [the claimed village green is] usually known: The Fields of Widmer Farm
Locality: Widmer End, Buckinghamshire
Colour on plan herewith: Green."
"There are some minor differences of opinion as to what constitutes the locality but most agree it includes the Widmer End ward of Hughendon Parish and the Park and Brackley ward of Hazlemere Parish. It should be noted that the fields are bounded on two sides by the dwellings of those wards of the Parish Councils areas and on the other two sides by agricultural land. They are thus not generally visible to casual passers by using roads in the area. Village Green designation is claimed on the evidence therefore of the residents of the two Parish wards noted above and not by the general public."
"Such units have in the past been occasionally boroughs, frequently parishes, both ecclesiastical and civil, and occasionally manors, all of which are entities known to the law, and where there is a defined body of persons capable of exercising the rights or granting the rights" Per Harman J. at p.937 of the Ministry of Defence case.
"should connote something more than a place or geographical area rather a distinct and identifiable community such as might reasonably lay claim to a town or village green as of right." (p.501)
"wholly without merit and wrong. It is obvious that the particulars sought in Part 3 are only in relation to identifying the correct location and extent of the claimed land and have nothing to do with the section 22 issue at all"(3.8).
"So too is the Ecclesiastical Parish of Hazlemere. Similarly the Civil Parishes of Hughendon are certain."
"That the users are in the locality of the Ecclesiastical Parish of Hazlemere "
"10.78 The Applicants at the Inquiry had made reference for the first time to the Ecclesiastic Parish of Hazlemere as being a possible locality. While Laings accept than an Eccelsiastical Parish could be a locality in former times, there is no basis in modern secular times for regarding a religious division as a locality for the purpose of village green rights. Harman J. in MOD v Wiltshire does not purport to say that there can now be prescription in favour of an Ecclesiastical Parish; all he was doing was stating that in the past it could be in favour of an Ecclesiastical Parish.
10.79 It should be regarded as very curious that priority should now be put on the Ecclesiastical Parish when it was not even mentioned in the application or supporting material; only in the Applicants' closing submissions had the Ecclesiastical Parish been put as a priority.
10.80 In any event it was suggested that on the evidence there was a minimal relationship between use of the application site and the Hazlemere Ecclesiastical Parish, whose boundary extends way beyond the principal user of the application site. None of the Applicants' witnesses had actually suggested that all of the inhabitants of the Ecclesiastical Parish are now entitled to rights over the new village green. Such a claim would be not only contrary to the Applicants' original application form and the way their case was first presented; it would also be considerably more burdensome to Laings than the present usage or that of a smaller locality."
"3.9 It is clear from the scheme of the Act and the Regulations that the question of what is the relevant 'locality' (or if appropriate "neighbourhood within a locality") in the Section 22 sense is a matter of fact for the Registration Authority to determine (albeit in accord with correct legal principles) in the light of all the evidence, which may indeed contain a number of conflicting views on the topic. There is no requirement in the Form or Regulations for an applicant to commit himself to a legally correct (or any) definition of the "Section 22 locality" (or 'neighbourhood')."
"Laings have not been in the slightest degree prejudiced or misled. They knew from the outset what the applicants' position was, and indeed fully took up the opportunity presented by the Inquiry to address the question of what the relevant locality might or might not be for the purposes of Section 22 of the 1965, a matter which I consider later in this report."
"whether any apparent "locality" which emerges from the evidence is legally capable of amounting to a section 22 locality"(13.2)
with great care and in considerable detail in paragraphs 13.3-13.25 of his report.
"the safest way of interpreting the correct locality in this case is the Ecclesiastical Parish of Hazlemere. It is clear that the predominant amount of users come from that area."(9.25)
"I accept the point made by GAG that it is obvious whether one takes as the putative "locality" the combined civil wards of Park and Brackley (Hazlemere) and Widmer End (Hughenden), or the ecclesiastical parish of Hazlemere, in either case the evidence shows that the overwhelmingly predominant element of village green types use of the fields has been by inhabitants of the area concerned."
" in my judgment "locality" as long as it is certain enough is not something which must be regarded in modern times as a concept restricted to current local government boundaries (which is rather what Laings' were suggesting in argument). Such a view is not consistent with quite modern authority in the shape of MOD v Wilts case (whatever may be status of that decision more generally after Sunningwell). It seems to me, as a matter of judgment, that in many rural and semi-rural/edge of urban areas of the ecclesiastical parish continues to be of just as much significance to the lives of its inhabitants as the civil parish and the doings of civil parish councils. I agree with GAG that this is not just a matter which affects active regular churchgoers, but is potentially relevant to such matters as qualification for church schools, or to get married, or christened, etc., in the Parish Church.
The ecclesiastical parish in this case clearly is quite a coherent area, and is precisely the area from the built up core of which the "users" of the fields do predominantly come. The ecclesiastical parish is clearly certain. In my judgment, as a matter of fact, the Ecclesiastical Parish of Hazlemere is the best and most appropriate way of identifying the relevant "locality" here in the sense meant by Section 22 of the 1965 Act; I attach to the back of this report a map showing the information I was given as to the boundaries of that ecclesiastical parish."
The Human Rights Challenge
"not persuaded that there is any force in Laings' argument that there is any inherent or fundamental conflict between the village green registration provisions of the Commons Registration Act 1965 and the Human Rights Act 1998, including the "convention rights" which the latter brought directly into English law for the first time. I agree with the Applicants that even if it can be said that registration of land as a village green potentially interferes with the peaceful enjoyment by a landowner of his possessions, i.e. the land concerned, and so raises the issue of Article 1 of the First Protocol of the Human Rights Convention (included in Part II of Schedule 1 to the 1998 Act) the proviso set out within that Article is obviously applicable to a case like this.
(a) Registration interfered with Laings' peaceful enjoyment of its possessions.
(b) The degree of interference was such as to amount to a de facto deprivation of possessions without compensation: Laings was effectively deprived of all meaningful use of its land.
(c) Alternatively, registration was a most severe interference with property rights going well beyond a mere "control of use".
(d) While the deprivation/interference/control was authorised under domestic law by the Act, it was not lawful for the purposes of Article 1 because "the quality of the law", as contained in the Act, was not "compatible with the rule of law", in that the Act did not provide "protection in the form of procedural safeguards from arbitrariness".
(e) Since the aim of the registration procedure in the Act was not clear, it could not be said that the interference was in pursuit of a legitimate aim, or what public, as opposed to local, interest was being served by the interference.
(f) In view of the absence of compensation, and the draconian effects of registration, effectively sterilising Laings' land bank for all time, the Act did not strike a fair balance between the general interest and the protection of Laings' rights as landowner, and imposed an "excessive burden" upon Laings.
(a) The village green registration procedures in the Act did not engage Article 1 at all, being closely analogous to the acquisition of rights by prescription or adverse possession.
(b) If Article 1 was engaged, registration did not amount to a deprivation of property, but to a control of use, albeit "a very strong control".
(c) The Act was not incompatible with the rule of law. It was legitimate for States to frame legal rules to promote legal certainty, the law relating to prescription (and, by analogy, registration) promoted that end. There were ample procedural safeguards: an informal inquiry coupled with the availability of judicial review.
(d) Registration pursued a legitimate aim in the public interest: to resolve uncertainties as to the existence of rights over land which has been used for recreation purposes for many years, and to secure the use of such land for recreation and exercise by persons living in the locality. A measure may be in the public interest even though it benefits only a section of the public.
(e) The Act struck a fair balance between the interests of the landowner and the general interest. Compensation was not essential where there was merely a control of use or other form of interference falling short of deprivation. However draconian, the effects of registration were less serious than the consequences of a successful claim of adverse possession.