Cheltenham Builders Ltd., R (on the application of) v South Gloucestershire Distrcict Council

MR JUSTICE SULLIVAN:

There are two sets of proceedings before the court. The first is an application for judicial review in which the claimant seeks a quashing order in respect of a decision of the defendant's Public Rights of Way and Commons Registration Committee on 8 September 2002 to amend the Register of Town and Village Greens maintained by it under the Commons Registration Act 1965 ("the Act") by adding land at Magpie Bottom, Tabernacle Road, Hanham, Bristol ("the site") as a village green; a declaration that the site is not a village green; and a mandatory order requiring the defendant to remove it from the register.

The second is a claim under CPR Part 8 for an order under section 14 of the Act that the register be amended by the removal of the site and for a declaration that the site is not a village green. Claims under section 14 are assigned to the Chancery Division.

On 1 August 2003, Master Bowles ordered, by consent, that there should be a trial of preliminary issues in the section 14 claim, and that the trial of those issues should be conducted together with the claim for judicial review. The agreed preliminary issues in the section 14 claim correspond with the issues now raised in the application for judicial review.

The claimant is a property development company. It acquired the land comprising the majority of the site from the defendant by transfer dated 23 February 2001 pursuant to an option agreement entered into in November 1996. The claimant exercised its option to purchase the land in November 1997. It was registered as the proprietor of the land with effect from 16 March 2001. On 6 March 2000 the claimant applied to the defendant for planning permission to erect eight houses and an access road on the land. The defendant failed to determine the application within the prescribed period, so the claimant appealed to the Secretary of State for the Environment. The Secretary of State's inspector, who described the land as "part of a former nursery . . . an unkempt and overgrown area of mature shrubs, self-seeded trees, brambles and tall grass, which is crossed by a network of informal paths", dismissed the appeal in a decision letter dated 6 December 2000.

Local residents, including Mr Bye of the Magpie Bottom Action Group, appeared at the hearing before the inspector in October 2000 and opposed the proposed development. On 5 July 2000, Mr Bye, together with three other local residents who appeared at the hearing before the inspector, had applied for registration of the land, together with some adjoining land, as a town or village green.

The Act provided for the registration of all existing town or village greens in England and Wales. Land capable of registration as such which was not registered by the end of a prescribed period (31 July 1970) was not deemed to be a green (Section 1(2)). After 31 July 1970 registration cannot be effected under section 1, but can be effected by the making of an amendment to the register under section 13 "where . . . any land becomes . . . a town or village green". The procedure is prescribed by the Commons Registration (New Land) Regulations 1969 ("the Regulations"). Application must be made to the registration authority (in this case the defendant) on the prescribed form. The registration authority must notify likely objectors, including owners, tenants and occupiers of the land in question, and publish and display notices of the application in the area, inviting objections by a specified date. Having sent copies of any objections to the applicant and given him an opportunity to respond, the registration authority then decides whether to accept the application and make the necessary registration, or to reject it.

As enacted, section 22(1) of the Act contained a three-part definition of town or village green as follows. Land:

I have added letters [a]-[c] for convenience since the three classes are usually referred to as class [a], [b] or [c] village greens. The definition of a class (c) green was altered with effect from 30 January 2001 by sections 98 and 103(2) of the Countryside and Rights of Way Act 2000 ("the 2000 Act"). Class (c) greens are now defined as land:

The application dated 5 July 2000 contended that the site had become a class (c) green in "1995 or before". The claimant's solicitors objected to the application in a letter dated 15 December 2000. The letter said, inter alia:

Correspondence between the claimant's solicitors and the defendant continued until April 2001, by which time the definition of class (c) green had been amended by the 2000 Act (see above) and the majority of the land within the site had been transferred by the defendant to the claimant. In a letter dated 18 April 2001, the claimant's solicitors reiterated their earlier objections, referred to correspondence from local residents seeking registration of the site and said, inter alia:

The applicants for registration were supplied with copies of this correspondence by the defendant. On 8 June 2001 the defendant wrote to the claimant advising it that the applicants had withdrawn their application for registration. On 5 October 2001, Mr Bye and the other three previous applicants made a further application for registration. This time the application site was confined almost entirely to the claimant's land -- a small piece of adjoining land belonging to a third party was also included in the site. The application was made on the prescribed form. It claimed that the site had become a village green "by 2000 or before".

The applicants chose to describe the locality from which the inhabitants claiming to use the land came, in the following terms:

In some locations the red line follows a feature on the ground, for example, it runs along the boundary between the back gardens of the houses in Tabernacle Road and Lower Hanham Road, but for most of its length it appears to bear no relationship to any man made or natural topographical feature. For example, it bisects individual houses and gardens, and cuts across numerous streets and an adjoining area of open space. The application form was accompanied by 24 evidence questionnaires in the standard form published by the Open Spaces Society. Those completing the questionnaires all confirmed that they agreed with the locality as shown edged red on the plan. In answer to question 12, those completing the forms were able to say who they considered to be the local inhabitants in respect of the site, and in answer to question 14, they were able to identify the facilities available to the local inhabitants, for example, local school, church or doctor's surgery.

The claimant's solicitors objected to the application in a letter dated 2 May 2002. That letter said, in part:

Around the end of May 2002 the claimant erected fencing to close off access to the site. Until that time, subject to the extent to which the site was overgrown, it was possible to gain access to it. The defendant's Head of Legal and Democratic Services prepared a report for the meeting of the Committee on 5 September 2002. The report set out the factual and legal background and identified the issues, stating correctly, that "the onus is upon the applicant to prove on the balance of probabilities that the land has become a village green". The report identified the various elements contained in the definition of class (c) village greens. No complaint is made of this part of the report. The 24 evidence forms were analysed and appendices summarised the points made in the claimant's objection and the applicants' responses thereto.

Paragraph 26 of the report commented upon the points made in the claimant's solicitor's letter dated 2 May 2002. The responses to the points made in the first paragraph and paragraphs (3), (4) and (5) of the letter (see above) were as follows:

The report concluded:

The claimant's solicitors had been sent a copy of the report in advance of the meeting. They protested saying that a public inquiry should be arranged to hear, to test and to consider the evidence which had been submitted, otherwise:

They contended that it would be "unlawful and unreasonable" for the defendant to determine the application without holding an inquiry.

When introducing her report, the Head of Legal and Democratic Services responded:

The introduction stated that if members did not accept the officer recommendation, they could refer a decision and seek counsel's advice, or if there was "new evidence or a significant conflict", they could adjourn to a special meeting. Members resolved to accept the recommendation in the report. The minutes record:

No other reasons are given in the minutes for the Committee's decision and there is no evidence from any of the members of the Committee. It was common ground therefore that the members had agreed with and adopted the approach set out in the officer's report. The claimant was informed by letter dated 10 September of the Committee's decision, and the site was added to the register as a village green on 7 October 2002.

The application for permission to apply for judicial review was filed on 4 December 2002. It raised four principal grounds of challenge to the defendant's decision to register the site as a village green. These grounds were, in summary:

The defendant's acknowledgment of service did not contend that the claim was not arguable; rather it contended that the claim should not have been made as an application for permission to apply for judicial review, but as an application to rectify the register under section 14 of the Act. Section 14 provides for the rectification of registers as follows:

The claimant and the defendant were unable to agree as to the scope of section 14 and/or the appropriateness of judicial review. At a hearing on 6 May 2003 the claimant indicated that it would be making an application under section 14 without prejudice to its contention that judicial review was the appropriate remedy. I granted the claimant permission to apply for judicial review and ordered that, if possible, the application for judicial review and any application under section 14 should be heard together. In doing so I expressly made no finding as to the ambit of section 14, or as to its adequacy as a remedy.

The Part 8 claim form in the section 14 application was issued in the Chancery Division on 8 June, and in due course, Master Bowles made the order referred to in the introduction above. In addition to the four issues set out above (user, locality, as of right and fairness), there is, therefore, a fifth: appropriate remedy -- judicial review or section 14.

This case was argued with great skill by Mr Laurence QC, on behalf of the claimant, and Mr Petchey, on behalf of the defendant, over three days. Numerous authorities were cited, particularly as to the meaning of "locality" in the Act. There is, however, a (relatively) short answer. The defendant's decision to register the site as a village green is manifestly flawed for the three reasons set out below. Whether the end result is to be achieved under section 14 or by way of judicial review, the court simply cannot allow the decision to stand.

When dealing with "the issues" the report correctly stated that the onus was upon the applicants for registration to prove on the balance of probability that the site had become a village green. Thus the applicants had to demonstrate that the whole, and not merely a part or parts of the site had probably been used for lawful sports and pastimes for not less than 20 years. A common sense approach is required when considering whether the whole of a site was so used. A registration authority would not expect to see evidence of use of every square foot of a site, but it would have to be persuaded that for all practical purposes it could sensibly be said that the whole of the site had been so used for 20 years.

On the basis of the officer's findings in paragraph 26 of her report, it could not reasonably have been concluded that this test had been met. I recognise the need to read reports such as this as a whole and in a common sense way. Extracts should not be taken out of context. The relevant passages are set out above. In response to the claimant's contention that it had been "physically impossible for the public to have used over 90 per cent of the claimed land for the purposes claimed due to the fact that it has been so heavily overgrown", the report said that:

Mr Petchey submitted that the reference to a possibility rather than a probability of use was not an erroneous diminution of the burden of proof upon the applicants for registration. That issue was dealt with in the conclusions (see paragraph 36 of the report). Rather, this part of the report was stressing the officer's finding that, contrary to the claimant's contention that the use of the land was impossible, it was possible for some of the claimed activities to have taken place on the site. I accept that that is a fair interpretation of this part of the report, but it raises two obvious and critical questions: which activities (since the probability was that the site was not used for certain of the claimed activities for the requisite period: see finding (b) above), and therefore, just how extensive was the use of the site; and over how much of the site did they take place (since it was in the main overgrown: see finding (a) above)? These questions remained unresolved to the end. The concluding paragraphs in the report left them unanswered.

The preceding paragraph in the report (paragraph 36) merely compounded the confusion. While it reiterated the need for the application to be proved on the balance of probabilities, this advice was sandwiched between two passages which appeared not merely to reverse the onus of proof, but also to impose an increased burden on the claimant. The report said that the claimant's objection had not "conclusively overturned any of the evidence provided with the application" and that "no compelling evidence" to contradict the application had been produced by the claimant. Even without this confusing advice as to the burden and standard of proof, there was no possible basis on which the Committee could reasonably have concluded that the whole of the application site had probably been used for lawful sports and pastimes for 20 years in the light of the views expressed in paragraph 26 of the report (and implicitly accepted by the Committee).

Mr Petchey made the point that the Committee had, in addition to the report, the completed questionnaires. That is true, but the views expressed in paragraph 26 of the report were based upon the totality of the available evidence. They should have led to only one conclusion: the application had to be refused.

One of the many deficiencies in the Act and the regulations is that they do not prescribe any procedure (beyond publicising the application and sending copies of any objections to the applicant) for determining an application. In particular, no provision is made for an oral hearing. In practice, many registration authorities remedy this omission by making arrangements for an independent inspector (normally counsel experienced in this branch of the law) to hold a non-statutory inquiry. This practice was noted with approval by Carnwath J (as he then was) in R v Suffolk County Council ex.p Steed [1995] 70 P & CR 487 at pages 500 to 501.

In other cases, hearings have been held before the decision making Committee itself, at which the applicants for registration and objectors had been given the opportunity to call and cross-examine witnesses and to make oral submissions. The defendant contends that neither a non-statutory inquiry nor a hearing before the Committee was necessary in the present case. Mr Petchey points to the fact that there was no conflict of evidence as such. The claimant had not placed any evidence before the Committee contradicting the completed questionnaires, it had merely relied on submissions in the letters of objection from its solicitors.

I accept that registration authorities have a discretion as to the procedure to be adopted (assuming that the limited requirements in the regulations have been complied with), but that discretion is not unfettered. It must be exercised in a manner which is fair to applicants and objectors. What fairness requires by way of procedure will depend upon the circumstances of the particular application. Coupled with the obligation to act fairly, the registration authority is also under an obligation not merely to ask the correct question under the Act, but to "take reasonable steps to acquaint [itself] with the relevant information" to enable it to correctly answer the question: see the Tameside case cited by Carnwath J above.

In the present case, the defendant does not appear to have given any, or any serious, consideration as to what fairness required. The approach adopted by the Head of Legal and Democratic Services when introducing her report appears to have been that it was sufficient for the defendant to comply with the requirements laid down in the Act and the regulations. Where there is a comprehensive statutory code governing the determination of appeals (for example the Town and Country Planning Inquiries Procedure Rules), it may well be difficult to persuade the courts that fairness requires anything more than compliance with the statutory code. But as noted above, the Act and the regulations do not provide a comprehensive code. In particular, they are silent as to how the registration authority is to set about resolving disputes of fact between applicants and objectors which have emerged as a result of the process of the applicant responding to the objector's response to the information contained in the application.

Given the report's findings as to user (see above), this was a case where the application could fairly have been rejected without an oral hearing because the burden of proof had not been discharged by the applicants (see above), but it could not fairly have been accepted without such a hearing, if only to resolve the two questions left unanswered on the written evidence and submissions: which activities, and therefore, what was the extent of the user; and over how much of the site did they take place for the requisite period?

In support of his submission that the defendant was not required to make arrangements for some form of oral hearing, Mr Petchey relied upon the claimant's ability to make an application to the High Court under section 14 of the Act for the amendment of the register. On such an application the High Court would be able to hear oral evidence and submissions. I accept that the existence of the right to apply to the High Court is a factor to be taken into consideration when deciding what fairness requires in any particular case, but section 14 does not absolve the registration authority from the duty to adopt a fair procedure and to take reasonable steps to establish the facts to enable it to answer the statutory question.

It is important from the point of view of applicants for registration, as well as objectors, that the registration authority should do its best to resolve disputed questions of fact when deciding whether to accept or reject an application. The registration authority will be able to resolve factual disputes locally in a forum (inquiry or hearing) that will be more convenient for local residents who may support or oppose the application, and will not expose them to the additional expense and the risk of costs that are inherent in High Court proceedings.

The debate as to the meaning of "locality" in sub-section 22(1A) ranged far and wide. For the purposes of the short answer it is unnecessary to consider the meaning of "neighbourhood" since the defendant did not consider whether the area shown edged red on the plan could reasonably have been described as a neighbourhood. It is common ground between the parties that while the applicants did not have to define the locality in their application (see R(Laing Homes Limited) v Buckinghamshire County Council [2003] EWHC 1578 (Admin), at paragraphs 135-137), the defendant had to be satisfied that the claimed user had been by the inhabitants of an area that could properly be described as a "locality".

The applicants chose to describe the locality, the inhabitants of which they claimed had used the land for lawful sports and pastimes for 20 years. All the evidence before the defendant in the form of the completed questionnaires contended that the locality was that described in the plan accompanying the application. No other locality was ever suggested. The report accepted that the area put forward by the applicants was a locality for the purposes of section 22 because, and only because, the boundary of the area had been edged in red on a plan. In his submissions, Mr Petchey acknowledged that this had been the defendant's approach and submitted on its behalf that by drawing a line on a map, any area could be defined as a "locality" for the purposes of the Act. Certainty as to the extent of the locality was all that was required and that was provided if the area, any area, was delineated upon a plan.

Whatever may be meant by "locality" in sub-section 22(1A), I am entirely satisfied that it does not mean any area that just happens to have been delineated in however arbitrary a fashion on a plan. Such an approach would, in effect, deprive the word "locality" of any meaning in the sub-section since anywhere could be delineated on a plan.

Parliament might have provided that land fell within sub-section (1A) if a significant number of "the local inhabitants" or "persons living in the vicinity" had used the land for lawful sports and pastimes, but it did not do so.

Setting the claimant's submissions as to the meaning of "locality" on one side (see post), it is plain that, at the very least, Parliament required the users of the land to be the inhabitants of somewhere that could sensibly be described as a "locality". It may well be difficult to define the boundary of a "locality" on a plan because views may differ as to its precise extent, but there has to be, in my judgment, a sufficiently cohesive entity which is capable of definition. Merely drawing a line on a plan does not thereby create a "locality". In Steed (above), Carnwath J said, at page 501:

There is no suggestion in the report that the area delineated by a red line on the plan with the application was a distinct and identifiable community. The completed questionnaires mention local facilities such as local shops and a doctor's surgery, but there is no information as to their location or even as to whether they are within the area edged red. As mentioned above, the boundary of the area is, for the most part, arbitrary in topographical terms. It appears to have been defined solely upon the basis that it should be drawn so as to include the homes of the 24 people who had completed questionnaires.

Unless a "locality" in sub-section (1A) means any area that happens to have been delineated by a red line on a plan by an applicant, the defendant's decision is fatally flawed. For the reasons set out above, I am satisfied that, whatever else it may mean, "locality" does not have such a non-meaning in the Act.

In concluding that the defendant's decision must be quashed (whether under section 14 or in the judicial review proceedings: see below), on the grounds of user, fairness and locality, I do not intend to be unduly critical of the report. The Head of Legal and Democratic Services was doing her best to advise the Committee in a complex area of the law. The deficiencies of the Act and the regulations, and the uncertainties thereby created, have been apparent for very many years: see for example the observation of Lord Denning in New Windsor Corporation v Mellor (1975) 1 CH 380 at page 392. It has become well nigh impossible for registration authorities to discharge their duties under the Act without resorting to outside specialist advice. It is to be hoped that Parliament will take steps to simplify and clarify the statutory provisions at an early stage.

When Parliament wishes to restrict the scope of a statutory appeal or application to the High Court, it does so in express terms: see for example, section 11(1) of the Tribunals and Inquiries Act 1992 and section 289(1) of the Town and Country Planning Act 1990, which make provision for appeals on a "point of law" from decisions of certain Tribunals and from the Secretary of State's decisions in enforcement notice appeals, respectively.

The High Court's powers under section 14 are not restricted to errors of law or procedure. If, for any reason, factual or legal, it appears to the court that no amendment to the register or a different amendment ought to have been made, then the court may order it to be amended. In Steed, Carnwath J said at page 496 that the court under section 14 "is not confined to remedying errors of law, but may consider the overall merits of the amendment".

In Secretary of State for Health v Birmingham City Council (unreported) 20 July 1995, Vinelott J said at page 10A of the transcript that "the court is given a wide discretion to rectify the register in the light of the circumstances when the application is made".

Thus, the starting point must be that the claimant could have raised the four issues: user, locality, as of right and fairness, in an application under section 14 rather than by way of a claim for judicial review. The claimant accepts that it could have (and subsequently has by way of agreed preliminary points) raised the first three issues, but expressed a concern that the court might not be able to deal with the fourth, fairness, without itself having to hear all of the evidence and reaching its own view on the totality of the evidence as to whether the site was or was not a town or village green. The question is free from authority, but I can see no reason why the court should not, under section 14, order an amendment to the register if it is satisfied that no amendment ought to have been made by the registration authority because it was procedurally unfair to have made the amendment.

The fact that the claimant could have raised all of its complaints under section 14 does not oust the court's power to grant judicial review. Where Parliament wishes to oust judicial review because of the availability of a statutory appeal, it has to do so in the clearest possible terms. There can be no ouster by implication: see the Court of Appeal's decision in R(Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 474, [2002] EWHC Civ 1738 at paragraph 44. Section 25 of the Acquisition of Land Act 1981 is an example of an express ouster; there is no comparable provision in the Act.

Although it will rarely be appropriate to grant permission for judicial review as an exercise of judicial discretion where Parliament has provided a statutory appeal procedure, there will be exceptional cases: see paragraph 47 of Sivasubramaniam. In Sivasubramaniam, the Court of Appeal said that these principles applied with particular force in the context of a coherent statutory scheme such as that established under the Administration of Justice Act 1999 and the CPR. Claimants should not be allowed to use judicial review to bypass the need to obtain leave to appeal, the need to comply with time limits, or the need to comply with other procedural requirements (paragraph 48). In the present case the position is reversed. Unlike judicial review, there is no need to obtain the court's permission to make an application under section 14 and no need to make the application promptly or indeed within any time scale at all. In certain cases the court might take the view that the delay was such that it would be unjust to rectify the register, but there is no obligation to claim promptly.

Mr Petchey referred to section 10 of the Act which deals with the effect of registration:

He accepted that, absent section 14, the court would in judicial review proceedings have power to quash not merely the defendant's decision to accept the application, but also the registration itself. In R v Hillingdon London Borough Council ex.p Royco Homes Limited (1974) 1 QB 720, the Divisional Court granted an application for an order of certiorari to quash a grant of planning permission, notwithstanding the existence of a right of appeal to the Secretary of State. Decisions quashing orders, notices or other formal documents issued by local authorities are common place. For the reasons set out above, section 14 does not oust the court's power in judicial review proceedings to quash an unlawful registration. Mr Petchey submits that it would be "very odd if the court had concurrent powers" under section 14 to order that the register be amended, and to quash a registration in judicial review proceedings. If Parliament wishes to remove that "oddity" it has power to do so by enacting an ouster clause. Until judicial review is ousted, the court is able to exercise its discretionary power to refuse to grant judicial review in order to avoid any anomaly or injustice resulting from the existence of concurrent powers.

For completeness, I should mention the decision of Brooke J (as he then was) in R v Hereford and Worcestershire County Council ex.p Ind Coope (unreported) 26 October 1994. In that case, an application for judicial review of the County Council's decision to register land as a village green was unopposed. It was conceded that the County Council's decision should be quashed. When considering the question of remedy, Brooke J said:

The County Council was not represented at the hearing and Brooke J was not asked by the claimant to quash the registration itself. Accordingly, the point raised in the present proceedings was not considered.

For the reasons set out above, there can be no doubt that the registration of the site as a village green was unlawful. Is there any reason why the registration should not be quashed in the exercise of the court's discretion? Apart from stating, correctly, that the court has power under section 14 to order the amendment of the register, the defendant has put forward no reason as to why a quashing order would be inappropriate. The claimant is not seeking to obtain any unfair procedural advantage or to evade any procedural obstacle by making an application for judicial review. The claim raises discrete points of law which can be answered by reference to the report, and the other documents identified above, without the need for hearing oral evidence. In the circumstances, judicial review is at least as convenient as an application under section 14. Moreover, the defendant has not suggested that it has been prejudiced in any way by the fact that the claimant chose initially to proceed by way of judicial review.

The court's discretion must be exercised having regard to the overriding objective in CPR Part 1. Requiring a claimant who has commenced judicial review proceedings to re-commence them under section 14 by way of a Part 8 claim for no other reason than the existence of the right to make such a claim would not be consistent with the objectives of saving expense or ensuring that his case was dealt with expeditiously. In short, it would be a pointless waste of money and time for no practical advantage.

For these reasons I am satisfied that the court does have power to grant the claimant a quashing order in respect of, not merely the defendant's decision to register, but also the registration itself, in addition to its power to amend the register under section 14.

In order to establish the existence of a class (c) village green it is not enough to demonstrate user for lawful sports and pastimes as of right for 20 years. The user as of right must "continue" up to the date of the application for registration (in this case 5 October 2001): see paragraph (a) in sub-section (1A). An alternative approach, which would require the user to have continued as of right after the application was made until the date when the matter was being considered by the registration authority, or until the date of registration itself, would make a nonsense of sub-section (1A) because a landowner would only have to fence the land and put up notices on receipt of an application in order to defeat it, however long the user might have been.

For the user to have been "as of right" it must have been nec vi, nec clam, nec precario, not by force, not by stealth nor by the licence of the owner: see the speech of Lord Hoffmann in R v Oxfordshire County Council ex.p Sunningwell Parish Council [2000] 1 AC 335 at page 350H. Lord Hoffmann explained that:

The landowner does not have to meet force with force. He can achieve the same effect by making non-forcible objection or protests directed towards the users of his land. In Newnham v Willison [1988] 56 P & CR page 8, there was a dispute as to the existence of a right of way. Kerr LJ referred to Mcgarry and Wade's, The Law of Real Property (5th edition):

In that case the defendants had done more than engage in correspondence, they had erected a post obstructing the plaintiff's use of the track. In Dalton v Angus (1887) AC 740, the House of Lords was concerned with a right of support. At page 786, Bowen J said this:

Mr Laurence submitted that the claimant's solicitor's objection to the first application for registration which led to that application being withdrawn made it clear that the applicant's use of the land was contentious, so that all subsequent user was "vi". This point was made in the claimant's solicitor's letter of objection dated 2 May 2002: see above. While it was noted in one of the appendices to the report, it was not answered in the report.

Mr Petchey submits that there is now a difficulty in Newnham v Willison in that it articulates a subjective approach:

He further submits that, whatever the position may now be post Sunningwell, Newnham v Willison and the cases referred to therein, were all examples of "perpetual warfare" between the landowner and users of his land. The claimant's objection to the first application did not establish a state of perpetual warfare. He pointed to the terms of the letters dated 15 December 2000 and 21 April 2001 which, while they objected to the application for registration, did not make it clear that local residents had no right to go on the land. Rather, they argued that any use of the site by the public was with the implied permission of the defendant, which was the landowner, until the claimant became the registered proprietor on 16 March 2001.

In my judgment, the question following their Lordships' decision in Sunningwell must be not whether those using the land knew that their user was being objected to or had become contentious, but how the matter would have appeared to the owner of the land, since in cases of prescription the presumption arises from the latter's acquiescence: see pages 352H to 353A of Sunningwell.

In this context, the reaction of the applicants for registration to the landowner's objection must be relevant. If they had refuted the objection and persisted with their application, then it might well have been reasonable to have expected the landowner to do more to resist the exercise of the claimed right, for example, by erecting fencing or putting up notices. However, the reaction of the applicants after initially disputing the points made in the claimant's solicitor's letters of objection, was to withdraw their application to register the land as a village green. From the claimant's perspective, therefore, it had "seen off" the applicants' contention that its land was a village green. Why did it need to do any more to make it plain that it was not acquiescing in the acquisition of village green rights over its land?

I accept Mr Petchey's submission that there was not a state of perpetual warfare, but there did not need to be given the apparent success (from the landowner's point of view) of its opening shots in the war. The letter dated 15 December 2000 objected to the application for registration on a number of grounds, but it did say in terms that "the applicants had failed to establish that the claimed activities had been indulged in as of right". Read fairly and as a whole, the letters dated 15 December 2000 and 18 April 2001 made it sufficiently clear that the claimant was not acquiescing in the applicants' user of its land. It follows that the applicants' user of the site did not continue to be "as of right" after the withdrawal of their first application on 8 June 2001.

The claimant's principal submission was that locality in section 22 means "a division of the county defined and known to law": see per Kekewich J at page 313 of Edwards v Jenkins (1896) 1 CH 308. The Defendant's submission is set out above. It contended that all that Parliament required was certainty and that the area delineated on plan A by the applicants was certain and it was therefore a locality for the purposes of the Act. Alternatively it was submitted (even though the issue had not been considered in the report) that the area delineated in the plan was certain and could therefore be described as a "neighbourhood".

The parties' submissions on the meaning of "locality" and "neighbourhood" ranged far and wide. Their original skeleton arguments were augmented by a supplementary skeleton argument and a further note from the claimant, and a supplementary note and two further notes from the defendant. There is no doubt that the issues raised in these submissions are of great importance to all those concerned with village greens -- applicants, landowners and registration authorities alike. I was asked to provide answers to a number of unresolved questions. Since, in my view, the case for registration of this site does not even get off the starting blocks on the issues of user and locality (whether or not it means an area known to the law), I do not intend to deal with this final issue at any great length. Given their wider importance, the unresolved questions should be determined in a case where the inhabitants do come from an area that is sufficiently cohesive to be described in ordinary language as a locality, but which is not a division of the county known to law.

In Edwards v Jenkins, Kekewich J decided that a custom claimed by the inhabitants of three parishes to play on a field in one of the parishes was bad. This decision was doubted by Lord Denning MR in the New Windsor case at page 387 "so long as the locality is certain, that is enough". Brown LJ agreed with Lord Denning. Brightman J expressly left the question open: see page 396.

Lord Denning's doubts were not echoed in subsequent cases. In Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931, where a class (c) village green was claimed, Harman J, having concluded that there could be no possible claim of right, said this:

In Steed, Carnwath J adopted a similar approach. Having referred to the need for there to be a "distinct and identifiable community such as might reasonably lay claim to a town or village as of right", and to the fact that Sudbury was being relied on as the locality, he continued on pages 501 to 502:

Mr Petchey accepted that the houses in Pain v Patrick might well have comprised the ancient vill of Littleport, and would thus have been an area known to the law. In support of his submission that what was required was certainty as to the locality, rather than an administrative area known to the law, he referred to the exposition of Custom in 12(1) Halsbury's Laws (1998) 4th edition, reissue. The author, Professor JH Baker QC, refers to the need for certainty both as to the nature of the custom alleged and the locality where it is alleged to exist: see paragraph 615.

Under the heading, "Certainty as to locality", paragraph 616 says, in part:

The references in that passage to a forest and a region of marshland are references to legally recognised entities, such as the New Forest or Romney Marsh. Paragraph 616 continues:

There is a reference to the authorities listed in footnote 27. The only lack of unanimity in the authorities cited in footnote 27, which include Edwards v Jenkins, is to be found in Harrop v Hurst, where a custom for the inhabitants of a named district, Tamewater, in the parish of Saddleworth, to take water from a spout in the highway was accepted. The weight to be given to this discordant note must be limited, since no objection was taken on the basis that Tamewater was not an area known to the law.

It is common ground that the word "locality" in sub-section (1A) must be construed in the context of the definition of class (a) and (b) greens in sub-section (1); that locality has the same meaning in classes (a), (b) and (c); and that it has the same meaning throughout sub-section (1A). For class (a) village greens the locality will have been defined in an Act of Parliament, or in a formal allotment made thereunder. It will therefore be an area known to the law. For class (b) village greens, apart from the doubt expressed by Lord Denning in the New Windsor case (above), the authorities in which the issue has been considered are unanimously to the effect that at common law a customary right to indulge in lawful sports and pastimes could exist only for the benefit of some legally recognised administrative division of the county. In my judgment, that would have been the sense in which Parliament used the word "locality" when defining class (b) and (c) village greens in 1965.

It will be remembered that the Act pre-dated the substantial re-organisation of local government that was effected by the Local Government Act 1972. In 1965 local government areas were much smaller and more local with numerous boroughs, urban district councils, rural district councils and a number of relatively compact county boroughs.

There is a further difficulty in accepting Mr Petchey's submission as to the meaning of "locality". On the defendant's approach there is no practical distinction between a "locality" and a "neighbourhood". Provided it is sufficiently certain (because it has been delineated on a plan), any neighbourhood can be a locality and vice versa. Indeed Mr Petchey submitted that "locality" and "neighbourhood" were essentially synonymous. He fairly acknowledged that to succeed in this submission he had to persuade the court that when Parliament in the 2000 Act amended the definition of class (c) village greens by inserting a reference to "neighbourhood" in sub-section (1A), it did so unnecessarily, and upon the basis of a misapprehension as to the meaning of "locality" in section 22(1) as enacted in 1965.

I accept that the belief of Parliament in 2000 as to what was meant by "locality" in the 1965 Act is not determinative: see the speech of Lord Scott in Bettison v Langton [2002] 1 AC 27; [2001] UK HL 24 at paragraph 62. In that case parliament's erroneous belief was contrary to "a deluge of judicial and academic opinion" (paragraph 45). In the present case, Parliament's belief that the burden placed upon applicants for village green registration to demonstrate that the users were the inhabitants of any locality was unduly onerous and should be lightened by the introduction of the neighbourhood concept, was entirely in accordance with the (almost) unanimous view expressed in the authorities cited above. Accordingly, I am not persuaded that Parliament in 2000 misunderstood the meaning of "locality" in the 1965 Act.

It is common ground that a neighbourhood need not be a recognised administrative unit. A housing estate might well be described in ordinary language as a neighbourhood. For the reasons set out above under "locality", I do not accept the defendant's submission that a neighbourhood is any area of land that an applicant for registration chooses to delineate upon a plan. The registration authority has to be satisfied that the area alleged to be a neighbourhood has a sufficient degree of cohesiveness, otherwise the word "neighbourhood" would be stripped of any real meaning. If Parliament had wished to enable the inhabitants of any area (as defined on a plan accompanying the application) to apply to register land as a village green, it would have said so.

The parties are agreed that Parliament, in enacting the 2000 Act, was attempting (unnecessarily the defendant would say) to make it less not more difficult to establish class (c) village green rights. Parliament might have provided that land would fall within sub-section (1A) if it had been used for not less than 20 years by a significant number of the inhabitants "of any locality or of any neighbourhood", but for whatever reason, it did not do so. If a "neighbourhood" is to be relied upon, it must be a neighbourhood within a "locality". Thus, the need to identify a locality has not been removed. In most cases this should not create a difficulty, but it does for the applicants in the present case. The area shown edged red on the plan is contained within two unitary local authority areas: Bristol City and South Gloucestershire. There is no County Council, Avon County Council having been abolished on 1 April 1996.

Mr Petchey referred to the joint arrangements made between the two unitary authorities to deal with such matters as strategic planning. The need for such arrangements merely emphasises the fact that there are indeed two separate authorities. He sought to rely on section 6(c) of the Interpretation Act 1978 and invited me to read section 22(1A) as though "neighbourhood within a locality" meant "neighbourhood within a locality or localities".

In my judgment, a contrary intention appears in section 22. For the reasons set out above, locality in the case of class (a) and (b) village greens means an administrative unit, not one or more administrative units. That "locality" has the same meaning in sub-section (1A) is reinforced by the use of the word "within", signifying that a "neighbourhood" must be wholly inside a single locality. In effect, the defendant's case requires sub-section (1A) to be read as though it referred to a "neighbourhood within, or partly within one and partly within another, locality".

When enacting the 2000 Act, Parliament did not intend to create this additional obstacle for applicants such as those in the present case, but it managed to do so. This is a further example of the urgent need for Parliament to revisit this area of the law.

The claimant succeeds. The parties agreed that I should reserve consideration of what relief would be appropriate and hear further submissions in the light of this judgment. Before doing so, I would like to express my thanks for their most helpful submissions.

Right, that is the end, my voice has just about lasted out. Miss Crail, Mr Petchey cannot be here. I got the message he could not be here. Mr Booth is here in his stead, but obviously has played no part in the proceedings. I would prefer, subject to any submissions you may have, if there are vexed questions about what relief should be appropriate, in particular declaratory relief, to leave that to be discussed perhaps between you and Mr Laurence and Mr Petchey. If you are unable to agree a form of order then I would arrange a time to suit us all to enable further submissions to be made. Does that seem sensible?

MS CRAIL: My Lord, we are entirely content with that course, which is eminently sensible.

MR JUSTICE SULLIVAN: And I would have thought that so far as costs and so forth are concerned, again that can be the subject of discussion. I would be very surprised if there was a disagreement about it. Broadly speaking I am likely to be prepared to approve any order that the parties are agreed to as to the sensible way of resolving this matter. Mr Booth, does that seem sensible to you?

MR BOOTH: Certainly, my Lord. I am not going to object to any of that. It seems eminently sensible.

MR JUSTICE SULLIVAN: If you would convey my apologies to Mr Petchey. We did try to arrange a time that was convenient for everyone, but the only time that Mr Laurence could do Mr Petchey could not do. The only time Mr Petchey could do, Mr Laurence could not do, and the only time they could both do it, I could not do, so I am afraid he had to lose out.

MR BOOTH: Mr Petchey sends his sincere apologies for not being able to attend.

MR JUSTICE SULLIVAN: Accepted. Right, we will leave questions of the formal order over for -- Mr Booth, Miss Crail, written form will be perfectly acceptable if the parties are agreed, and we only need to have an oral hearing if the parties cannot agree on the order. So there is no need for people to come back unless it is absolutely essential. Thank you very much.