Oxfordshire County Council v Oxford City Council & Anor

The Claimant Oxfordshire County Council (“the Claimant”) is the registration authority for its area for the purposes of the Commons Registration Act 1965 (“the 1965 Act”). One of its duties as such is to receive and determine applications for the addition of land to the register of town and village greens maintained by it under that Act, in accordance with the provisions of the Commons Registration (New Land) Regulations 1969 (“the 1969 Regulations”).

In June 2002, the Claimant received from the Second Defendant, Miss Robinson (“the Second Defendant”), an application for the registration as a town green of an area of land in North Oxford known as the Trap Grounds. The First Defendant, Oxford City Council (“the First Defendant”), which has owned the land since 1975 and wishes to use the land to provide needed housing, objected to the application. The Claimant caused a non-statutory public inquiry to be held by Mr Vivian Chapman (“Mr Chapman”), a senior barrister with wide experience in this field. By his report Mr Chapman advised that the Claimant should register part, and part only, of the Trap Grounds. The decision whether to register depends on the answers to a number of difficult legal questions on which the Claimant has received advice conflicting with that expressed by Mr Chapman. In these circumstances in these proceedings the Claimant seeks the guidance of the Court as to how those questions ought to be answered.

The questions relate to the construction and application of the 1965 Act and the 1969 Regulations and are of far-reaching importance for registration authorities. In the forefront of this judgment I must acknowledge my debt to counsel for all three parties and the size of the task of doing justice to their submissions in this judgment.

At common law there can arise local rights exercisable over land which the owner of the land is legally obliged to respect. I should mention three such rights. The first is the right of local inhabitants to play at all kinds of lawful games, sports and pastimes at all seasonable times of the year: see Fitch v. Rawling (1795) 2 Hy.Bl.393. Dog walking and playing with children are in modern life the main recreational uses met with today. The second is the right to indulge at all times of the year in a single recreational activity e.g. dancing: see Abbott v. Weekly (1665) 1 Lev 176. The third is the right for recreation to promenade (or wander) over land and every part of it: see Abercromby v. Fermoy Town Commissioners [1900] IR 302. The land the subject of the first of these three rights is known as a town or village green (“a Green”). The rights may arise under statute (in which case for reasons which will subsequently appear the Green is known as a “class a” Green); the rights may arise by “immemorial custom” (in which case the Green is known as a “class b” Green); and by virtue of section 22 of the 1965 Act the rights (or the potential for rights) may arise from 20 years’ exercise as of right (in which case the Green is known as a “class c” Green). (A valuable précis of the law on customary rights is to be found in Megarry & Wade, The Law of Real Property 6^th ed. p.1096). The question presently before the Claimant as registration authority is whether the Trap Grounds has become, so as to be registrable as, a class c Green.

Greens, together with common land and rights of common, are the subjects of the 1965 Act. The Long Title to the 1965 Act reads: “An Act to provide for the registration of common land and of town or village greens; to amend the law as to prescriptive claims to rights of common; and for purposes connected therewith”. In R v. Oxfordshire CC ex parte Sunningwell PC (“Sunningwell”) [2000] 1 AC 335 at 347 G-H, Lord Hoffmann provided an overview of the legislation, most particularly so far as it related to Greens:

“The main purpose of the Act of 1965 was to preserve and improve common land and town and village greens. It gave effect to the Report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462) which emphasised the public importance of such open spaces. Some commons and greens were in danger of being encroached upon by developers because of legal and factual uncertainties about their status. Others were well established as commons or greens, but there was uncertainty about who owned the soil ...

The Act dealt with these problems by creating local registers of common land and town and village greens which recorded the rights, if any, of the commoners and the names of the owners of the land. If no one claimed ownership of a town or village green, it could be vested in the local authority. Regulations made under the Act prescribed time limits for registrations and objections and the determination of disputes by Commons Commissioners. In principle, the policy of the Act was to have a once-and-for-all nationwide inquiry into commons, common rights and town and village greens. When the process had been completed, the register was conclusive. By section [1(2)] no land capable of being registered under the Act was to be deemed to be common land or a town or village green unless so registered.

In the case of greens in classes a or b, this meant that unless they were registered within the prescribed time-limit, they could not be registered as such thereafter. (There is a question about whether non-registration of a class a green also extinguished the prior statutory rights of exercise and recreation, but that need not detain us now). But a class c green could come into existence upon the expiry of any period of 20 years’ user. This might be after the original registration period had expired. Section 13 therefore provided for the amendment of the register in various situations including where ‘(b) any land becomes common land or a town or village green …’”

The 1965 Act does not confer on the registration authority an exclusive jurisdiction to determine whether land has become a Green. It merely provides, as an alternative to court proceedings, a new “consumer friendly” procedure to determine the question. The jurisdiction of the court to determine whether land is a Green and registrable as such is not ousted. (This is reflected in the accompanying notes to Form 30: see paragraph 15(ii) below). In court proceedings the issue may arise directly, e.g. on an application for a declaration or an injunction to restrain interference with the rights of local inhabitants, or indirectly e.g. where the existence of the Green is relied on as a defence to a claim in trespass. Where the interested parties are in dispute whether the existence of a Green should be determined by the court or the registration authority, the court must resolve that dispute. Most particularly if a party (and most particularly the landowner) for any good reason wants the issue to be tried by the court, the court may be expected to incline to accede to his request, but (where appropriate) on terms which provide the protection in respect of adverse orders for costs available to the other parties which would be available if the matter proceeded before the registration authority. The existence of the two alternative adjudicatory tribunals, namely the court and the registration authority, is relevant in particular when construing section 22 of the 1965 Act, a matter to which I shall shortly turn. I should mention for completeness that in a judgment giving permission to appeal in R(Whitmey) v. Commons Commissioners (29^th November 2003) Carnwath LJ gave permission to appeal to the Court of Appeal on the question whether the Commons Commissioners had jurisdiction to determine whether land had become a Green.

I turn now to look at the framework of the 1965 Act in greater detail. In regard to common land and rights of common the 1965 Act was merely the first stage in intended two stage legislation. On the second reading of the Bill subsequently enacted as the 1965 Act, the responsible Minister (Mr Willey) explained why two stage legislation was necessary:

“First of all we should create the machinery for establishing the facts by registration: that is the simple purpose of this Bill. Until the facts are authoritatively established and recorded it would be premature to frame the further legislation that will be required. What the Bill will do is to provide the foundation for the further commons legislation making provision for statutory schemes for the management of common land.”

In 1990 in the case of Hampshire CC v. Milburn (“Milburn”) [1991] 1 AC 325 at 341 Lord Templeman said:

“The Commons Registration Act 1965 was passed to give effect to the recommendations of the Royal Commission so far as registration was concerned. The Act of 1965 did not confer any general public right of access over common land and did not set up the machinery for the establishment and implementation of schemes of management and improvement. But there can be no doubt that further steps were intended to implement the recommendations of the Royal Commission and no doubt that such steps have become more, and not less, desirable.”

The promise of second stage legislation in respect of common land and rights of common is apparent on the face of the 1965 Act in two particular sections, namely section 1(3)(b) and section 15(3). Section 1(3)(b) provided that, in default of registration of the owner of land registered under the 1965 Act, common land shall be vested as Parliament may hereafter determine. Section 15(3) provided for quantification of registered grazing rights as Parliament may hereafter determine. The promise was in part fulfilled by the passing of the Countryside and Rights of Way Act 2000 (“the Countryside Act”) which in particular conferred rights of access which did not previously exist over waste land of the manor not subject to rights of common.

The 1965 Act however disclosed no equivalent gaps in respect of Greens. In the case of Greens (unlike in the case of commons) the 1965 Act expressly provided that, in the absence of registration of a person as owner of land registered as a Green, the land vested in the local authority (see section 8 of the 1965 Act). Again in the case of Greens (unlike in the case of rights of common consisting of rights of grazing) there was no occasion for subsequent quantification of rights of local inhabitants incident to a Green. The rights of local inhabitants incident to the status as a Green are established at common law and the 1965 Act affords no basis for the suggestion that the rights incident to the status of a class c Green are in law in any way different from those incident to either a class a or class b Green.

The question has been raised before me whether guidance can be found in Hansard on the question whether Parliament intended that there should be second stage legislation in respect of Greens. The Royal Commission did not contemplate anything other than single stage legislation in respect of common land or Greens. Whilst Hansard reveals clear statements by Government Ministers during debates on the Commons Registration Bill of intention to introduce second stage legislation in respect of common land, the position is different in the case of Greens. Mr Frederick Willey MP, the Minister of Land and Natural Resources, on the 28^th April 1965, spoke only of the second stage legislation making provision for statutory schemes for the management and improvement of common land (column 456). In the House of Lords on the 9^th February 1965 Lord Mitchison, after saying that the object of the 1965 Act was to register common land and Greens, went on to say: “It will then be possible to make provision by further legislation for the better management and use of the land” (column 85). The question has been raised whether the provision to which he referred was intended to relate to Greens as well as to common land. I think that on a fair reading of both speeches, the balance favours the view that second stage legislation was intended to relate to common land alone. Most certainly the Parliamentary material does not and cannot justify the court approaching the task of construing the 1965 Act as intended to be only the first stage of two stage legislation in respect of Greens, let alone a first stage intended to postpone the conferment of the rights incident to a class c Green until second stage legislation might be passed. On any basis the second stage was intended to relate and relate only to the use and management of the land. The first Government move to initiate consultation on second stage legislation on Greens was in response to the views expressed by the Court of Appeal in New Windsor Corporation v. Mellor (“Mellor”) [1975] 1 Ch 380 to which I must subsequently refer.

The 1965 Act by section 1(1) rendered obligatory the registration of all existing Greens in England and Wales and by section 1(2) provided that no land capable of being registered under the 1965 Act “shall be deemed to be a town or village green unless so registered” by the end of the period prescribed by the Commons Registration (Time Limits) Order SI 1966/1470, as amended by SI 1970/383, namely the 31^st July 1970. A class c Green was of course only registrable if the relevant prescriptive period for enjoyment as of right had expired on or before the 31^st July 1970. Accordingly (as Lord Hoffmann pointed out in Sunningwell) section 1(2) did not apply to areas of land used by local inhabitants as of right for lawful sports and pastimes for a period less than 20 years before the 31^st July 1970. They retained the potential by continued enjoyment as of right thereafter to become Greens at the expiry of 20 years’ user.

Section 10 of the 1965 Act provided that registration as a Green “shall be conclusive evidence of the matters registered as at the date of registration”. Accordingly registration has the statutory effect of establishing that the registered Green is indeed a Green. Registration does not create rights to make recreational use of land, though registration is often colloquially spoken of as doing so. Speaking of registration as creating such rights is merely shorthand for saying that registration establishes as a fact the existence of the Green which gives rise to those rights.

Section 13 of the 1965 Act stated that Regulations under the 1965 Act should provide for amendment of the register: (a) where any land registered under the 1965 Act ceased to be a Green; or (b) where any land not so registered thereafter “became” a Green. The provision for amendment was accordingly made in the 1969 Regulations. Land cannot cease to be a Green by discontinuance of user or abandonment. At common law the principle is clear that, once a Green, always a Green (see Wyld v. Silver [1963] Ch 243 at 255). A change of status can only be effected by some statutory provision such as section 147 of the Inclosure Act 1845 (on an exchange of land) or the provisions of the 1965 Act or on a compulsory purchase. Regulation 3 of the 1969 Regulations provided that, where after the 2^nd January 1970 any land “becomes” a Green, application “may” be made for inclusion of the land in the appropriate register. The word “may” underlines the fact that registration is optional. In R v. Suffolk CC ex parte Steed (“Steed”) (1996) 75 P&CR 102 at 113, Pill LJ held that the meaning of the expression that land “becomes” a Green is that the land “becomes registrable” as a Green. With respect there is no need or reason to read the expression as meaning anything other than what it says, namely that the land attains the status of a Green. Of course when the land attains that status, it becomes registrable. This view accords with the passage quoted from the judgment of Lord Hoffmann in Sunningwell to the effect that a class c Green may come into existence after the 31^st July 1970 and that therefore section 13 provides for its registration.

Sections 2 and 3 of the 1965 Act placed the responsibility for maintaining and amending the registers of Greens for their areas on certain local authorities (referred to in the legislation as “registration authorities”). The procedure laid down by the 1969 Regulations where land is claimed to have become a Green is, in summary, as follows:

Section 14 of the 1965 Act provided that the High Court may order a register maintained under the Act to be rectified if it has been amended in pursuance of section 13 and it appears to the Court that no amendment or a different amendment ought to have been made and that rectification would be just. The power is exercisable not merely to remedy errors of law, but if in the exercise of its discretion for any reason whether legal or factual the Court considers that the amendment should not have been made. The availability to any party affected of recourse to this section in addition to the availability of judicial review and indeed the availability of court proceedings in place of a determination by the registration authority, as it seems to me, renders the procedure under the 1969 Regulations compliant with Article 6 of the European Convention on Human Rights.

Section 22(1) of the 1965 Act provided that in the 1965 Act (unless the context otherwise required) “common land” does not include a Green and “town or village green” meant (with the letters a, b, and c added so as to distinguish class a, class b and class c Greens):

“land [a] 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 any 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.”

I shall refer to this as “the original definition”. Class a Greens are referred to in 19^th Century legislation as “recreation grounds”, distinguishing them from class b Greens.

In Sunningwell at p.353 Lord Hoffmann explained why the 1965 Act introduced into English law for the first time class c Greens. Prior to that Act to establish a Green by prescription it had been necessary to establish by resort to fictions or presumptions of grant or dedication, that the use and enjoyment of the land as a Green dated back to 1189. Resort to fictions and presumptions did not however prevent a claim from being defeated by showing that the custom could not have existed in 1189. Section 22 of the 1965 Act dispensed with the need to resort to such fictions or presumptions of grant or dedication and excluded this defence by rendering it sufficient that the inhabitants of the locality had in fact used the land as of right for lawful sports and pastimes for more than 20 years. The user of course must not be so trivial and sporadic as not to carry the outward appearance of user as of right: see Sunningwell at p.357D.

The definition of Green in section 22 of the 1965 Act was amended with effect from the 30^th January 2001 (by virtue of sections 98 and 103(2) of the Countryside Act) in respect of class c Greens. It now reads:

“or [c] which falls within subsection (1A) of this section.

“(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.”

I shall refer to this as the “amended definition”.

I should make the following observations on the amended definition. First there are as yet no “prescribed provisions” and accordingly clause (b) above is inoperative. The Common Land Policy Statement 2002 (“the CLPS”) proposed provision enabling application for registration to be made up to two years after the user ceased and stated there would be consultation on the draft regulations (see para 48). No such draft regulations have yet made their appearance. Second, in clause (a) the provision for continuance must be for continuance until the time of the application for registration or of the commencement of proceedings vindicating the existence of the Green: see Caerphilly County Borough Council v. Gwinnutt (“Caerphilly”) 16 January 2002 HH Judge Hywel Moseley QC. It cannot sensibly require (as is suggested by the First Defendant) continuation until the date of determination of the application by the registration authority or judgment by the court, for such a construction would enable the landowner in all cases to defeat a claim to the existence of a Green by placing a notice in appropriate terms on the land in question (such as has been placed in this case) after the application has been made or proceedings commenced and before the determination or judgment and accordingly frustrate the purpose of the legislation: see R (on the application of Cheltenham Builders Ltd) v. South Gloucestershire CC (“Cheltenham”)[2003] EWHC 2803 (Admin) at paragraph 62. Indeed if the First Defendant is correct, a landowner’s solicitor may be guilty of negligence if he does not advise that this action be taken. I do not think that the provision made in (1A)(b) for the making of regulations in any way weakens this argument. The legislation must have been intended to operate sensibly and effectively in any interim period, which might be (as it has been) protracted, until the regulations were made. The First Defendant has submitted that the intention which I have attributed to the legislature has little (if any) force in this context because on at least three occasions the courts have pointed out unintended and undesirable consequences of the way the 1965 Act and the subsequent amending legislation is drafted, in particular as regards the severance of grazing rights (see Bettison v. Langton [2002] 1 AC 27 at paras 53-56 and 62 (Lord Scott) and paras 9, 12 and 22 (Lord Nicholls dissenting); as regards the expression “neighbourhood within a locality” (see Sullivan J at para 89 in Cheltenham); and in respect of registration of local authority land on which recreation has been encouraged pending redevelopment proposals (see R v. City of Sunderland ex parte Beresford (“Beresford”) [2003] 3 WLR 1306 at para 92 per Lord Walker). But that (as it seems to me) is no ground for admitting of a further and unnecessary absurdity or anomaly.

The distinctions between the qualifying user required to establish class c Greens under the original and amended definitions are as follows:

The Second Defendant submitted her application in prescribed Form (Form 30) on the 21^st June 2002 for registration of the Trap Grounds as a Green. This date was subsequent to the coming into force of the amended definition. Among the sections of Form 30 which the Second Defendant as an applicant for registration was required to complete were the following:

“Part 3. 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.

Locality.

Colour on plan herewith.

Part 4 On what date did the land become a town or village green?

Part 5 How did the land become a town or village green?”

The Second Defendant completed the form as follows:

Part 3 “[name] The Trap Grounds

[locality] Parish of St Margaret, Central North Oxford

[colour on plan] Trap Grounds in green

Parish of St Margaret in red”

Part 4 “1 August 1990”

Part 5 “By virtue of the fact that local residents had used it for lawful pastimes as of right (without obstruction, permission, stealth or force) for an unbroken period of twenty years. They continue to do so until the present day.”

The Second Defendant filled in the date of the 1^st August 1990 in Part 4 in the belief induced by a reading of paragraph 59 of the Open Spaces Society publication “Getting Greens Registered” that that was the appropriate date to give if the land became a Green at any date after the 31^st July 1970.

The Second Defendant sent the Claimant a revised plan on which the boundaries of the ecclesiastical Parish of St Margaret were differently depicted. On the 21^st October 2002 the Second Defendant wrote to the Claimant “formally to apply to vary the boundaries of the land that is the subject of my town green claim”. The parts of the Trap Grounds which she wished now to exclude from the application were as follows:

There were four objectors to the application, but the First Defendant was the only objector to attend the subsequent inquiry and make representations.

The Claimant appointed Mr Chapman to hold a non-statutory public inquiry and to report in writing with a recommendation whether the Claimant should accede to the application. The inquiry was held between the 6^th and the 8^th November 2002. The Second Defendant throughout acted in person. A great deal of evidence, documentary and oral, was presented and witnesses were cross-examined as to the condition and use of the Trap Grounds, and this was carefully evaluated by Mr Chapman in his Report and Further Report (“the Report”). The Report recommended registration of part only of the Trap Grounds.

The significant elements of the Report are as follows:

Before the recommendations could be implemented, it was made apparent to the Claimant by the First Defendant that some of the legal grounds on which the Report was based were challenged. The Claimant sought a second Opinion from Leading Counsel. As his advice differed from that of Mr Chapman, they both recommended that these proceedings be commenced for the guidance of the court on the issues of law in dispute and the Defendants agreed. In adopting this course, the parties followed the precedent set in Milburn.

Meanwhile the First Defendant put up on the Trap Grounds on the 6^th February, the 1st April and the 3^rd July 2003 notices in the following terms:

“OXFORD CITY COUNCIL

TRAP GROUNDS AND REED BEDS

PRIVATE PROPERTY

ACCESS PROHIBITED

EXCEPT WITH THE EXPRESS CONSENT

OF OXFORD CITY COUNCIL”

Recreational enjoyment of the Trap Grounds for the purposes of the original and amended definitions thereafter could no longer be as of right.

The determination by the Claimant as registration authority whether to accept the application requires an informed determination of a series of issues of law. Rulings are sought on eight questions and guidance is sought on a ninth and tenth as follows:

I have sought in this judgment to answer each of the questions and to provide the guidance requested in the order which appears to me to be logical and convenient, and not necessarily in the order in which they are raised. I have already answered the third question in paragraph 20 of this judgment. The qualifying user must continue until the date of the application for registration or the commencement of proceedings vindicating the existence of the Green.

The first issue which arises for determination is the legal effect variously of registration and non-registration of land as a Green on the rights of local inhabitants over the land. But before I turn to this issue, I must first consider two prior questions which should help furnish a key to the issue. The first question is: what is registrable as a class c Green? The answer is provided by sections 22 and 13 of the Act and Regulation 3 of the 1969 Regulations. Land is only registrable if in law at the date of the application for registration the land is a Green by reason of qualifying user. Section 13 of the 1965 Act and Regulation 3 of the 1969 Regulations provide for amendment of the register by registration of land not already registered under the 1965 Act which subsequently “becomes” a Green. These provisions make plain that the act of registration does not confer on the land the status of a Green. The status is acquired independently of the registration process. As I have already said, the question whether land has acquired the status can be determined either by the court or the registration authority. After land has acquired this status, at the option of any party interested it is registrable at any time thereafter. Registration can only take place if a Green exists: registration merely records and confirms the prior existence of the Green.

The second question is whether under the 1965 Act all class c Greens are intended to be registrable or only some of them. I do not think that I should adopt a construction of the 1965 Act and the 1969 Regulations which results in only some (but not all) Greens being registrable. The 1965 Act is a registration Act providing for registration of all class c Greens whether the status was acquired prior to or after the 31^st July 1970. The interpretation of a “registration” Act should start from the assumption that its main purpose is to record and settle definitively existing rights and interests: per Carnwath J in Steed at p.502. There is no apparent reason why the machinery of the Act should not be available to record and settle definitively the status of all class c Greens, or why protection from the risk of encroachment should require in its place recourse to litigation. There is no reason why some Greens should have a half-life existing in law but unregistrable. This view accords with the Long Title, sections 1 and 13 of the 1965 Act and the speech of Lord Hoffmann in Sunningwell. In a word the provisions of the 1965 Act and the 1969 Regulations should not readily be construed as denying the right to register valid subsisting Greens, for to do so would run counter to the evident purpose of the 1965 Act as a registration Act and would fulfil no obvious or sensible purpose.

REGISTRATION

I turn to the legal effect of registration on the existence of rights of user by local inhabitants of the land registered as a class c Green. The alternatives are that registration merely confers a “holding status” pending conferment by subsequent legislation of rights on local inhabitants over the land registered as a Green or that registration confirms the existence of such rights.

The authorities in this area of law are conflicting, but none are binding on me. In these circumstances the sensible course is first to consider the question raised as a matter of principle and then consider how far the answer arrived at on principle is confirmed, qualified or precluded by authority.

The starting point is section 10 of the 1965 Act. Registration is conclusive evidence of the facts registered, and accordingly, in case of a registered class c Green, that the land is in law and fact a Green. The critical question, as it seems to me, is accordingly what is the effect of the land in question being (as registration conclusively proves it to be) a Green. The answer is that, unless the legislation manifests an intention that the existence and character of any incident rights is to await determination by subsequent legislation or that the incident rights of a class c Green are to be different from the established incident rights of a class a or b Green, the same rights must attach to class c Greens (whether registered or not) as attach to class a and b Greens, namely the rights of the local inhabitants to indulge in lawful sports and pastimes on the land. In my judgment the 1965 Act manifests neither such intention.

With those preliminary observations I turn to the authorities. The starting point is the decision of the Court of Appeal in Mellor. In that case an application was made within the time limit imposed by section 1 of the 1965 Act to register land as a Green by virtue of a customary right and also by virtue of 20 years user as of right. The Court of Appeal held that the Chief Commons Commissioner was entitled to find a customary right and that it was not necessary to consider the effect of qualifying user. But without the benefit of full argument Lord Denning MR stated at pp.391H and 392E-G:

“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 rights. And at common law 20-year user gives no rights….

there is nothing [in the Act] to tell us what the effect of registration is. It confers no rights in itself. 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 a ‘town or village green’ should be available for sports and pastimes for the inhabitants….”

Browne LJ stated (at p.395G):

“I also agree that, as the Act stands, and without further legislation, such user (20 years as of right) confers no rights on the public.”

Brightman J agreed with both judgments.

I should respectfully make two comments on the passages in Lord Denning’s judgment. The first is that the two sections to which he refers (namely, section 1(3)(b) and 15(3)) do not relate to Greens, and whilst in respect of the law relating to commons the 1965 Act (as I have shown) was intended to be the first of two stages of legislative reform, there is no ground for saying that any such second stage was intended in respect of the law relating to Greens. The second is that, if Lord Denning had appreciated this fact, there can be no real doubt that he would have reached the conclusion which he was already tempted to reach, namely that Parliament intended that all land registered as a Green should be available for sports and pastimes for the inhabitants. Indeed it is difficult to conceive that Parliament could have intended anything else.

The issue arose again in Steed. Though no decision was called for on the issue, in a judgment with which Schiemann and Butler Sloss LJJ agreed, Pill LJ disagreed with Lord Denning and Browne LJ and expressed the firm obiter view that registration has the effect of confirming in the relevant inhabitants the right to indulge in lawful sports and pastimes on the land. He said (at pp. 114-5):

“Town or village greens undoubtedly have a legal existence. They were expressly exempted from inclosure under section 15 of the Inclosure Act 1845. Section 12 of the Inclosure Act 1857 provided ‘summary means of preventing nuisances in town greens and village greens’. Section 29 of the Commons Act 1876 provided that ‘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 of the better enjoyment of such town or village green or recreation ground shall be deemed to be a nuisance’. Section 15 of the Commons Act 1889 brings town and village greens within the regulatory provisions contained in Part I of that Act. Once it is established that land is a town or village green, there are protectable rights to use it.

While I accept that, by its title, the Act is said to be ‘an Act to provide for the registration … of town or village greens’ and not an Act to amend the law relating to public rights, section 22 does provide that ‘in this Act unless the context otherwise requires’, class C land is included within the definition ‘town or village green’. There is no express limitation upon the purposes for which the land is included within the definition. There is no doubt that the inhabitants have rights over class A and class B greens and the effect of land being a class C green should be considered in that context. 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 right is ‘to indulge in lawful sports and pastimes’ while avoiding the need to prove an immemorial custom or legal origin which would establish a class A or class B green. The limitation of the period of user to 20 years does not offend against principle having regard to Brocklebank (above). The land is a town green by virtue of statute and, once it is a town green, should bear the same incidents as any other town green. It is the relevant use which, under the statute, creates the right but once it is registered under section 13, section 10 provides that registration shall be conclusive of the matters registered. Classes B and C should be considered together and just as the evidential requirements of class B are imported into class C, the substantive effect of the required proof is in my view the same in both classes.

The analogy is not exact but I see class C as a way of establishing rights just as section 1(1) 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. Omitting words of limitation and exception, section 1(1) provided that ‘where a way … upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, such way shall be deemed to have been dedicated as a highway’. In Jones v. Bates, Scott LJ stated that the effect of the section was to give ‘a new statutory effect to mere proof of actual user as of right and without interruption’. 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 user sufficient to create a right.

The test for considering whether the rights are established is a stringent one, as stated earlier in this judgment. That provides protection for those with an interest in the land. The registration procedure, as laid down in the Regulations, provides further protection by imposing duties upon a registration authority to send, publish and affix notices (Regulation 5(4)) and conferring the right to object. The Regulations, together with the prescribed Form 30 and its notes, appear to me to be drafted on the basis that what is to be registered, if the application is successful, is a right.”

The issue did not arise for decision in Sunningwell. Lord Hoffmann (at p.347) left the issue open stating that it was unclear what rights (if any) registration conferred, a matter on which the 1965 Act was silent, but that registration prevented the development proposed in that case because section 29 of the Commons Act 1876 deemed encroachment on or inclosure of a Green to be a public nuisance.

The issue was the subject of obiter observations in two later cases. In R v. Norfolk CC ex parte Perry (1996) 74 P&CR 1 (“Perry”) Dyson J at p.7 stated that, if required to choose between them, he preferred the reasoning of Pill LJ in Steed to that of Lord Denning in Mellor and would have followed it. But in R(Laing Homes Limited) v. Buckinghamshire CC [2003] EWHC 1578 (“Laing”), a case where Perry was not cited and all counsel (including counsel for DEFRA) favoured the view expressed by Lord Denning, Sullivan J stated that, if forced to choose, he would have opted for the view expressed by Lord Denning. For completeness I should add that paragraph 51 of the CLPS contains proposals for legislation conferring rights on local inhabitants over class c Greens.

Viewing the authorities as a whole, they plainly do not preclude me from adopting the construction which appears to be correct on principle. Indeed the balance of modern authority favours that view. In my judgment section 22 of the 1965 Act recognises three methods by which land may become a Green, the last of which was a creation of the section. The creation merely dispensed with the possibility (as in the case of class b Greens) of defeating a claim by showing that there was an impediment to user as of right dating back to 1189. The 1965 Act and the 1969 Regulations draw no distinction between Greens by reference to their manner of creation: there is a single concept of a Green. It is permissible to go behind the registration to see what must have been the true basis of registration: see Perry at p.5. But that exercise cannot affect the position. As I have already said, registration merely records and confirms the prior existence of the class c Green. Registration is simply of a Green. Plainly the incidents of a class a and a class b Green include the rights of local inhabitants to use the Green: there is no suggestion in the legislation that the same incidents do not attach to a class c Green and one would naturally expect that the incidents should reflect the qualifying user. I conclude that the existence of a Green of whichever class, whether established with or without the benefit of the presumption arising by reason of registration, gives rise to the rights of the local inhabitants ordinarily incident to the status of such a Green.

NON-REGISTRATION

Section 1(1) of the 1965 Act rendered obligatory the registration of all existing Greens. The sanction for non-registration of land registrable as a Green by the 31^st July 1970 imposed by section 1(2) of the 1965 Act (and subordinate legislation referred to in paragraph 12 above) was that non-registration had the effect that the land shall not be deemed to be a Green. The critical question raised is the meaning of the word “deemed” in this context. Guidance is provided by Windeyer J in Hunter Douglas Australia Pty v. Perma Blinds (1970) 44 ALJR 257 at 262C-F:

“… the verb ‘deem’, or derivatives of it, can be used in statutory definitions to extend the denotation of the defined term to things it would not in ordinary parlance denote. This is often a convenient device for reducing the verbiage of an enactment. But that the word can be used in that way and for that purpose does not mean that whenever it is used it has that effect. After all, to deem means simply to judge, or reach a conclusion about something … the words ‘deem’ and ‘deemed’ when used in a statute thus simply state the effect or meaning which some matter or thing has – the way in which it is to be adjudged. This need not import artificiality or fiction. It may simply be the statement of an indisputable conclusion, as if for example one were to say that on attaining the age of twenty-one years a man is deemed to be of full age and no longer an infant. Hundreds of examples of this usage of the word appear in the statute books.”

In my judgment in section 1(2)(a) of the 1965 Act “deemed” means “adjudged” and accordingly that section required land registrable but unregistered as a Green on the 31^st July 1970 not to be adjudged to be a Green, i.e. adjudged not to be a Green. That construction accords with: (a) the judgment of McCullough J in R v. Doncaster MBC ex parte Braim (1987) 85 LGR 233 at 240-1; (b) the view expressed in Steed at first instance at 70 P&CR at p.492 by Carnwath J who stated that the effect of non-registration of a common or Green existing on the 31^st July 1970 was that it was deemed by section 1(2) of the 1965 Act no longer to have that status; and (c) the passage in the speech of Lord Hoffmann in Sunningwell which I quoted in paragraph 5 of this judgment (reserving his judgment in this regard in relation to class a Greens). On the other side and to the opposite effect is a dictum of Oliver J in In re Turnworth Down Dorset (“Turnworth”) [1978] 1 Ch 251 at 260 who expressed the view that the only effect of non-registration was to deprive the inhabitants of the benefit of the conclusive presumption furnished by section 10 of the Act and to require them to prove the existence of the rights in question, and in Steed Pill LJ (at p.113) adopted the view expressed by Oliver J. It is not however clear what (if any) argument there was in either case as to the meaning of the word “deemed” and I can see no reason why a legislative intent should be presumed in favour of perpetuating a situation in which rights of local inhabitants are to subsist but be unregistrable. The suggestion that section 1(2) of the 1965 Act merely disapplies section 13 of the Act is negated by the fact that section 1(2) provides that the land shall not be “deemed”, and not that the land shall not be “presumed”, to be a Green. No other sanction is imposed for non-registration of registrable Greens. In the confused state of the authorities I consider that I am entitled to adopt the construction which accords what appears to me to be the appropriate meaning to the word “deemed”. I therefore hold that the rights of local inhabitants in respect of Greens registrable but unregistered by the 31^st July 1970 are extinguished, and a fresh period of qualifying user is required to revive the Green. It is at the very least a matter of comfort in reaching this conclusion that this construction accords with the intention stated during the passage of the Commons Registration Bill by Lord Mitchison the Joint Parliamentary Secretary, Ministry of Land and Natural Resources in the House of Lords on the Second Reading debate on the 9^th February 1965 and the Committee Debate on the 23^rd February 1965 and by Mr Frederick Willey, Minister of Land and Natural Resources at the Second Reading Debate in the House of Commons on the 28^th April 1965.

Section 12 of the Inclosure Act 1857 (“the 1857 Act”) provided summary means of protecting Greens from nuisance, creating for this purpose a criminal offence triable before two justices of wilfully causing such a nuisance; and section 29 of the Commons Act 1876 (“the 1876 Act”) deemed encroachment on or enclosure of a Green which has a known and defined boundary and any erection thereon or any disturbance or interference with or occupation of the soil thereof, which is otherwise than with a view to the better enjoyment of the Green, to be a public nuisance, likewise punishable if wilful as a criminal offence. Neither Act defines the term “town or village green” and accordingly both adopt and apply the common law concept.

Concern has been expressed that the application of the 19^th Century Legislation to class c Greens will expose an innocent and unwitting builder to criminal sanctions. In answer to this concern I would point out: (1) that, because of the clear statutory requirement for “mens rea”, the application of the 19^th Century Legislation can give rise to no exposure to prosecution where the existence of the Green is not established and known; and (2) that the language of the legislation makes plain that the prohibited acts constitute “once and for all” and not “continuing” offences and accordingly, if (e.g.) a house or outbuilding is constructed on a Green in ignorance of the fact that the land is a Green, it is not a criminal offence to refrain from removing it when the true facts are known. That does not of course mean that this may not be required in civil proceedings as the appropriate means to remedy the nuisance.

The First Defendant submits that the 19^th Century Legislation does not apply to a class c Green because: (a) such Greens did not exist when that legislation was enacted; and (b) the 1965 Act does not provide that it shall apply to them. The First Defendant draws attention to paragraph 60 of the CLPS which proposes that the ambiguity over whether the 19^th Century Legislation applies to class c Greens should be ended by enacting new primary legislation.

In my judgment, the 19^th Century Legislation applies to Greens however and whenever created and whether registered under the 1965 Act or not. It cannot matter that a new method of creation of Greens was introduced by section 22 of the 1965 Act. The 1965 Act, as I have already said, draws no distinction between classes a and b and class c Greens. I have been referred to a series of cases which establish a presumption that Parliament intends an “always speaking” construction of its provisions. This approach supports this construction, but it is unnecessary to have recourse to it. The view that the 19th Century Legislation applies in case of class c Greens accords with high authority. It is sufficient to say that Pill LJ in Steed at p.114 said (by reference to the 19^th Century Legislation): “Once it is established that land is a town or village green, there are protectable rights to use it.” Lord Hoffmann adopted this view in Sunningwell in the passage which I have cited and the view is echoed in Beresford by Lord Bingham (paragraph 2) and Lord Walker (paragraph 92) who confirmed the view expressed by Pill LJ at p.111 in Steed that it was no trivial matter for a landowner to have land registered as a Green: there are very important practical consequences. Plainly the “no trivial matter” is not a reference to the possibility of second stage legislation.

The fifth issue raised is whether the Second Defendant’s application could as a matter of law (if supported by appropriate facts) succeed on the basis stated in Part 4 of her application, namely that the land became a Green on the 1^st August 1990 or whether (subject to the fourth issue) an application which specifies as the date on which the land became a Green a date earlier than the date immediately preceding the date of the application must fail (i.e. a period of 20 years qualifying user expiring earlier than the date of the application). For the purpose of answering this question I shall proceed on the basis that it is legally irrelevant that the application was made after the 30^th January 2001 when the amended definition came into force. I shall consider separately as the fourth issue the legal relevance of this fact.

The question assumes that the application is supported by the appropriate facts because Mr Chapman did not make any finding of fact in relation to the period 1970-1981 and it is not for me to express any view on the facts. I am merely concerned to rule whether on the true construction of the original definition a claim may be founded on qualifying user for any period of 20 years expiring on or after the 1^st August 1990 or whether the 20 years qualifying user must be a period immediately preceding the application for registration.

This issue is of the greatest practical importance in all cases where an application for registration is made based on the expiry prior to the 30^th January 2001 of 20 years qualifying user and in particular in the following classes of case:

Mr Chapman in the Report stated that he found intellectually convincing the view and reasoning in Leading Counsel’s Opinion (see paragraph 28 above) that as a matter of statutory construction the 20 year period need not end immediately prior to the application for registration, but he was not free to refuse to follow the views to the contrary expressed by the judges in Wiltshire, Perry and Caerphilly.

I shall first consider the question as a matter of statutory construction as though free from authority. Land can qualify for addition to the register by “becoming” a Green: section 13(b) of the 1965 Act. Land “becomes” a Green by satisfying the definition in section 22. On the wording of the original definition, that occurred as soon as the minimum period of user necessary to satisfy the definition (viz 20 years) had occurred and was irreversible. The logic of the Act is that it is the first 20 years’ user which confers the status of a Green on land, counting forwards from the date of commencement of user, rather than the last 20 years, counting backwards from the date of application. On a straightforward interpretation of the language of section 22, any 20 years will do: no rules are laid down for calculating the period and none can readily be implied. The only limitations to be imported from elsewhere in the 1965 Act can come from section 1. Its provisions impliedly preclude reliance for the purposes of an application under section 13 on any period of 20 years expiring prior to the 31^st July 1970, or (in the case of land which could have been registered under section 1) any period of 20 years expiring prior to the 1^st August 1990.

There were two possible statutory precedents for a qualifying 20 year period of user: section 2 of the Prescription Act 1832 (“… where the way .. has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years…”) and section 1 of the Rights of Way Act 1932 (“where a way …has been actually enjoyed by the public as of right and without interruption for a full period of twenty years …”). Both the 1832 and 1932 Acts contain elaborate provision for calculating the 20 year period in question. The 1965 Act contains no provision equivalent to section 4 of the 1832 Act or section 1(6) of the 1932 Act whereby any period of 20 years had to end with some suit or action (1832 Act) or with some act whereby the right of the public to use the claimed way was brought into question (1932 Act). In the case of the 1832 and 1932 Acts Parliament thought it necessary to spell out in express terms when the period was to be calculated from, if it was not to be just any period of 20 years. The draftsman of the 1965 Act had the 1832 Act well in mind (see section 16(2), referring to section 4). He could easily have incorporated an adapted version of the earlier provisions, but did not. As it seems to me no such provision can be implied.

The fact that the land has become a Green is (as I have already said) a condition precedent to an application for registration being made. The state of affairs exists independently of any such application being made and in point of time must pre-exist the date that any such application is made. Section 13 of the Act, Regulation 3(1) of the 1969 Regulations and Part 4 of Form 30 all presuppose a lapse of time between the land “becoming a Green” and the making of an application to have that status recorded on the register. There is no limitation period prescribed for the making of such an application and nothing in the 1965 Act or the 1969 Regulations is inconsistent with land becoming a Green and registrable as such after the 31^st July 1970 (in the case of land which could not have been registered before the 1^st August 1970) or the 31^st July 1990 (in the case of land which could have been registered before the 1^st August 1970) and so remaining without any actual application for its registration.

I must acknowledge that this construction may have one unfortunate consequence, namely that it is possible after the 31^st July 1970 (or the 31^st July 1990 (see paragraph 56 above)) for land to become a Green after 20 years qualifying user but not to be registered and subsequently to cease to be so used and become used instead by an unwitting owner e.g. for housing development. I have already referred to the principle that a Green cannot cease to be a Green by reason of discontinuance of user or abandonment and its status can only be altered under existing legislation by means of an exchange of land or pursuant to legislation to be passed in the future. The owner of the land or his successors in title may accordingly have no means available to change its status. Local inhabitants may in theory at least have recourse to self-help to assert their right to use the land as a Green and I have the greatest difficulty seeing what basis there can be for the grant of relief to the landowner providing protection from such action if the landowner will not himself remedy the public nuisance: see e.g. South Carolina Insurance Co v. Assurantie NV [1987] AC 24 at 40. This consideration no doubt lay behind the statutory provision for registration of commons and Greens, the penalty imposed by section 1(2) in case of non registration of Greens existing on the 31^st July 1970 and the provision in the new definition for continuance of user until the commencement of proceedings or the application for registration. But the legislature left a gap in respect of Greens which came into existence between the 1^st August 1970 and the 29^th January 2001 (both dates inclusive). It may be noted however that the landowner who has built on a Green faces a dilemma only to a limited degree more intense and problematic than that faced by landowners who build on the site of a private or public right of way. The remedy lies in the hands of the legislature. I do not think that this consideration enables or justifies a departure from the natural construction of section 22 of the 1965 Act as enacted that any period of qualifying user is sufficient.

I turn now to consider the three cases in turn. But before I do so I should mention that in Mellor the Court of Appeal expressed the view that the qualifying user had to be in respect of the 20 year period before the passing of the Act. That view, whether or not warranted by the wording of the 1965 Act cannot on any basis stand in case of the registration of new Greens coming into existence after the 31^st July 1970: see Sunningwell.

First and foremost for consideration are the obiter observations of Harman J in Wiltshire:

“It seems to me likely, if I were pushed to a decision, which I am not on this point since I have already decided the case, that the 20 years would have to be 20 years before a definable date, and cannot be any 20 years in gross, which would mean that, if one could show that between 1940 and 1961 there had been continuous singing and dancing on a piece of land and then an application to register in 1992, that would suffice, ignoring what happened between 1961 and 1992. It seems to me that Parliament cannot have contemplated that, although I cannot point to any words in the statute which lead me to that conclusion. It is simply a repugnance on the part of any lawyer to the idea that one can simply take a period in gross at any point and apply it many, many years later to create a right which might be quite inconsistent with intervening events.

If that be a correct attitude of mind, as I believe it is, then it seems to me that the only possible way in which that period of 20 years’ user can be satisfied is if it be 20 years’ user down to the making of the application for registration. If that were the proper test, it would in this case not be satisfied, since there are two and a half or three years between the grant of express permission and the application for registration, which must present a bar to the assertion of a continuous user as of right, and thus it seems to me on that ground also I would have been in favour of the Ministry of Defence. However, that must remain an obiter view …”

In respect of these observations I would respectfully comment as follows:

In short, if Harman J had had brought to his attention the material before me, I cannot think that he would have expressed himself as he did.

In Perry Dyson J expressed a preference for the approach adopted by Harman J in Wiltshire to the approach adopted by the Court of Appeal in Mellor, namely that the prescription period was 20 years up to the passing of the 1965 Act. What appears to have happened (although it is unclear from the judgment) is that it was conceded or assumed by counsel for both parties that one or the other of those two tests was the right one, that it did not matter which of them it was on the facts and therefore it was for Dyson J to choose between them. There is no record of any argument that neither was correct. In my judgment neither was correct and the assumption by Dyson J that one or other was correct without addressing his mind to the question must limit the weight which I can afford to his view.

The third case is Caerphilly. In the report of the judgment in that case there is no trace of any argument having been addressed to the Judge on the point of statutory construction and the correctness of Harman J’s dicta in Wiltshire seems not to have been challenged.

Though Mr Chapman reasonably considered that he was bound by the views expressed in the three judgments, I am not bound, and I consider that I can and should hold that the 20 year qualifying user need not immediately precede the application for registration. The applicant can select any 20 year period prior to the date of the application. The choice will, or at least should be, informed (for example) by consideration of the extent of user and the state of the land during that period and any physical changes e.g. in respect of accessibility to it which may affect the prospects of establishing the requisite enjoyment of the land over the period, a matter to which I must subsequently turn.

Accordingly, subject to being able to prove 20 years of qualifying user prior to the 1^st August 1990, the Second Defendant would be entitled to have the Trap Grounds registered on the basis of the original definition and the answer in Part 4 of her application irrespective of whether the land had since the 1^st August 1990 continued to be used as of right for lawful sports and pastimes (as now required by the amended definition). Its status would have crystallised on the 1^st August 1990 and it would have been registrable ever since.

The fourth issue raises the question whether it makes any difference that between the 1^st August 1990 and the date of the Second Defendant’s application (the 21^st June 2002), the amended definition came into force. Plainly the amended definition applied in case of land where the 20 year period of qualifying user had not yet expired at the date when the amended definition came into force. On the 30^th January 2001 the goal posts changed in that situation. The question now raised is whether the amended definition applies in cases where the 20 year period had by the time of the amendment already expired but no application for registration had been made. The First Defendant contends that no application for registration of land as a Green capable of registration before the 30^th January 2001 on the basis of the original definition can be made after the 30^th January 2001 because after that date the only land which is registrable is land which fulfils the amended definition. The answer depends on whether in enacting the amended definition Parliament can be taken to have intended to take away the status as a Green of land which had previously become a Green and registrable as such and with it the protection of the 19^th Century Legislation and the local inhabitants’ rights over it which (as I have held) attach to that status.

In my view Parliament cannot be presumed to have intended any such thing. If Parliament had any such intention, it would surely have made its intention plain. There is a presumption against retrospectivity of legislation. Lord Brightman in Yew Bon Tew v. Kenderaan Bas Mara [1983] 1 AC 553 at p.558 E-F said:

“There is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past.”

Maxwell on The Interpretation of Statutes, 12^th ed. (1969), at p.215 (“Maxwell”), states the principle in a way described by Scarman J. in Carson v. Carson [1964] 1 WLR 511, 516, as “so frequently quoted with approval that it now itself enjoys almost judicial authority:”

“Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.”

In my judgment the amended definition applies and applies only in cases when the land in question was not already by reason of the original definition a Green whether or not registered as such. There is no statutory indication of any intended wider application and no reason for it.

The amended definition retains the original requirement for 20 years’ qualifying user, but adds a second requirement, namely that qualifying user shall have continued from the expiry of that 20 year period until the date of the application or commencement of proceedings. This second requirement appears to be intended to meet the concerns expressed by Harman J in Wiltshire as to the potential for injustice which may be occasioned by gaps in time between the end of the period of qualifying user and the application for registration. Local rights are not lost by non-user. The legislature accordingly provided (on the construction of the amendment I favour) that rights which did not already exist should not arise unless the enjoyment was continuing until the date of the application or the proceedings in which the claim to their existence was made. It is plain that Parliament correctly took the view (contrary to that adopted by Harman J) that the period of 20 years did not have to expire on or immediately preceding the date of the application, for only on this basis could there be any possibility of a gap and any need for provision requiring continuing user after expiration of the 20 year period until the date of the application or commencement of proceedings. There is no statutory bar to the 20 year period beginning more than 20 years before application and the amended definition clearly contemplates that there may be an interlude between the end of the 20 year period and the making of the application within which users “continue to [indulge in lawful sports and pastimes on the land].” The period of continuance is additional, and subsequent, to the 20 year period.

In cases where the land in question had not already become a Green by reason of the original definition on or before the 29^th January 2001, whether registered or not (see paragraph 69 above) it follows that, once 20 years’ qualifying user has taken place, an application for registration can be made at any time thereafter so long as user is continuing and the applicant can choose to set himself the task of proving that qualifying user has been going on since the beginning of the 20 years and not limit himself to the 20 year period immediately preceding the application. It is not necessary for the applicant to take on that burden, but neither is it wrong (or incorrect) to do so. In answering the question in Part 4 of Form 30 as it stands (pending redrafting to take account of the new definition), the applicant should be entitled to regard the question as being directed to identifying when, in his submission, 20 years of qualifying user had expired. It is unnecessary for him to state an earlier date than the day preceding the date of the application. For applications relying on the amended definition, Part 4 ought really to be redrafted to require answers to three distinct questions: (i) when did 20 years’ user as of right for lawful sports and pastimes by qualifying local inhabitants end? (ii) Has such user as of right continued since that time? and (iii) (which question will only be relevant if regulations are made under section 22(1A)(b)) if not, when did it cease? As I have already said, where user has continued until the date of the application, it is likewise unnecessary to state an earlier date than the day preceding the date of the application.

The seventh question raises the question whether the application may be amended. There is no provision in the 1969 Regulations for amendment of the application. Provision is made for giving notice of the application as made to interested parties and for advertising the application as made. The issue raised is accordingly whether a power to amend is to be implied. An amendment was made and passed without comment in Caerphilly. The principal authority relied on by the Second Defendant in support of the existence of such an implied power is the judgment of Elias J on the existence of an implied power to amend a planning application in British Telecommunications Plc v. Gloucester CC [2002] JPL 993 (“BT”). Elias J (at paragraphs 33-41) held that on an application for planning permission, despite the absence of any express statutory power to amend, there was no reason why an amendment of an application should not be permitted at any stage if that should prove necessary in order that the whole merits of the application should be properly ascertained and decided on so long as the interests of the public were fully protected. A new application would only be required where that protection could not be assured. He distinguished the case of Bernard Wheatcroft Ltd v. Secretary of State for the Environment (1982) 43 P&CR 233 (“Wheatcroft”) which was concerned with the position on an appeal where the position is different and the criterion for allowing an amendment is far stricter, in particular because the means of securing the required protection of interested members of the public may no longer be available.

In my judgment there is a critical distinction between the applications for planning permission and applications for registration of Greens. Applications for planning permission are made for the benefit of the applicant and the present and future owners of and others interested in the land the subject of the application. Planning permission permits them to carry out the development. There is no reason why in such a case the applicant should not be free to abandon his application at any time or to amend by way of limiting or qualifying the permission which he is seeking. On the other hand in the case of applications for registration of a Green, the application is made for the benefit of the local inhabitants and, as there is a public interest in the full and proper determination of their rights, it is not open to the applicant, whether by way of a deal with the landowner or otherwise, to prevent the merits of the application (as made) being fully investigated: see Anstey. I therefore do not think that the applicant has impliedly any right to amend. The 1969 Regulations do not confer on the registration authority any power to accept the application as amended and I cannot think that the registration authority itself can authorise or make any amendment.

The sixth question is whether the Claimant had power (most particularly in the absence of objection by the First Defendant) to treat the application as if a different date (namely a date immediately preceding the date of the application) had been specified in Part 4, and to determine the application on that basis. Mr Chapman took what he said was the fair and common-sense view that he could substitute for the 1^st August 1990 date as the date on which the 20 year user expired the day preceding the making of the application. Mr Chapman took the view that the Second Defendant in stating the date which she did in Part 4 of the application made the mistake of thinking that under the original definition the 20 year period could expire on that date and need not expire on the date of the application. For the reasons which I have given, in the thoughts attributed to her the Second Defendant can have made no mistake: she was correct. As I have already said, there could be good reasons for choosing the 20 years expiring on that date. For example at that time the land may not have been overgrown or as overgrown as it became during a later period and acts of enjoyment may have been more frequent. But the issue remains how far the registration authority is bound in its determination by the date stated in the application, and whether it can substitute another (most particularly a later) date with or without the consent of the landowner.

The Second Defendant’s application could in law succeed, applying the original definition, on the basis that the Trap Grounds became a Green on the 1^st August 1990 (or on any date prior to the 30^th January 2001), by virtue of 20 years’ qualifying user by inhabitants of the locality immediately before that date. Failing that it could in law succeed, applying the amended definition, on the basis that from the 1^st August 1970 (or any later date up to the 21^st June 1982) to the 21^st June 2002 the Trap Grounds was used as of right by a significant number of the inhabitants of a locality or a neighbourhood within a locality. The short issue is whether the registration authority can recast the applicant’s case.

The answer to this question must lie in the ambit of the jurisdiction conferred by section 13 of the 1965 Act and the 1969 Regulations on the registration authority to decide whether to amend the register by adding to it land which has become a Green. The 1969 Regulations variously required the registration authority to “consider”, “accept” or “reject” and “dispose of” the application: Regulations 6, 7(1), 8(1), 8(3). They laid down the process for determining whether the land specified in the application satisfies the conditions for registration and the process is designed to elicit the requisite information for an informed judgment. I have detailed the steps in paragraph 15 of this judgment. The public interest in the outcome precludes the parties to the inquiry by agreement inhibiting the registration authority from proceeding with the inquiry entrusted to it in accordance with the procedure laid down: see Anstey.

The issue before me is whether the registration authority is required to adopt a strict approach tying the outcome of the application to the terms of the application or whether it can allow leeway to correct mistakes or reflect fresh information which becomes available in the course of the inquiry. In this context it is relevant to bear in mind that Form 30, and in particular Part 4 of Form 30, is inapposite to deal with applications under the amended definition. This state of affairs is scarcely consistent with the attachment of critical importance to its terms. On the one hand registration has serious practical consequences for the landowner, as recognised in the authorities which I have cited. On the other hand it would be draconian to penalise all errors or shortcomings in completing the application, however arising (or in preparation of the map), with rejection. It is necessary to bear in mind that there may be no scope for a new corrected application thereafter, in particular in a case where the amended definition applies and there has been a discontinuance of user after the date of the application or the landowner since that date has placed notices on the land as the First Defendant has in this case.

The starting point must be the presumption that the legislature did not intend what is unjust (see Maxwell above) and the same presumption must apply in respect of subordinate legislation. It is necessary to approach the construction of the 1969 Regulations with this guideline in mind.

The framers of the 1969 Regulations must have realised that many applications of this character would be likely to be made and completed by laymen and at a stage when the applicant would be likely to have available only a part of the total information which would subsequently become available to the registration authority. If the draftsman had intended any error to be fatal and potentially irreversible, one would at the least have expected some warning of this fact on the face of the application or in the accompanying notes. A fair reading of Form 30 is that the applicant is merely required to give his best estimate of the date.

In my judgment, the application which the registration authority is bound to “consider”, “accept” or “reject” and “dispose of” is the application as an application for registration of the land in question as a Green. This does not require acceptance of each or any of the summary grounds for registration stated in the application. The registration authority is bound justly to determine whether the land the subject of the application is a Green. The statement of the date on which the land became a Green is a guide to the case intended to be made by the applicant, but is not and cannot be taken to be writ in stone. It cannot be intended that the application can be defeated by an objection e.g. that the relevant date was a year (or a day) earlier or a year (or a day) later than that stated. The registration authority is obliged to ensure that, if it is of the provisional view that the date on which the Green became a Green is materially different from that stated in the application, the parties interested are notified and given the opportunity to counter the new case (if in reality it is a new case). But subject to ensuring full procedural fairness, the registration authority is bound to decide on the basis of the full material available whether the land has become a Green and exercise its statutory power of amending the register accordingly. This does not mean that the registration authority has carte blanche to conduct a roving inquiry into whether the land specified in the application or any part of it has become a Green on some or other factual basis. The starting point is the summary statement of grounds set out in the application, but the registration authority is free to depart from it if the information furnished to it in justice requires such departure and full procedural justice for all concerned is ensured.

Accordingly the First Defendant acted entirely properly in making no objection to the Claimant deciding the application on the basis that the Green came into existence in 2002. Such a course could not of course confer jurisdiction if none had existed, but it did exist. What it did do was to waive any complaint on grounds of procedural fairness to the registration authority proceeding in this way. Mr Chapman acted entirely correctly in advising that the Claimant could decide whether to accept the application for registration on this basis.

The seventh question raised is whether as a matter of law it is open to the Claimant to permit the application to be amended so as to refer to some lesser area than that shown on the plan attached to the application or described in the application by excluding the reed beds and/or a 10 metre strip along the western boundary of the scrubland and if so, according to what criteria. I have already expressed the view that the 1969 Regulations make no provision for amending the application or accepting the application with modifications. Express provision allowing acceptance with modifications would be apt to permit acceptance (and accordingly registration) of a lesser area: consider Anstey at p.339C-D. The issue accordingly as it seems to me is whether (notwithstanding the absence of express power to accept the application with modifications) it is open to the registration authority to accept the application as an application in respect of a lesser area and register as a Green the lesser area (the eighth question raised). The First Defendant contends that the registration authority can only accept the application with “de minimis” alterations. The Claimant contends that the registration authority can only accept the application with amendments which do not render it substantially different from the original. The Second Defendant contends that the registration authority can accept the application in respect of all or any part of the subject matter of the application.

In principle the answer as it seems to me must turn on the duty under the 1965 Act and the 1969 Regulations of the registration authority and the role of the application and map in the discharge of that duty. The duty of the registration authority is to determine the status of the land the subject of the application as a Green. One would naturally think that as an application is likely frequently to be made by a layman on what must in all likelihood be only partial information, and (borrowing the words of Sullivan J which I later quote) that as the applicant cannot be expected to be an expert cartographer, the duty must extend to determining whether the whole or part of the application land is a Green, but also require that in justice to the landowner he is given a full opportunity to meet any perceived change of case and is not prejudiced. It is common ground that there has been no prejudice in the present case.

Turning to the authorities, the starting point is the judgment of Forbes J in Wheatcroft. The issue in that case was whether on an appeal against a refusal of planning permission the Secretary of State as decision-maker could by the imposition of planning conditions grant planning permission for a less extensive form of development than that applied for. Forbes J held that the answer was in the affirmative so long as the effect was not to alter the substance of the application, which was a matter on which the Secretary of State had to exercise his judgment. He went on to explain how the judgment should be reached:

“The main but not the only criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation…”

In BT (decided on the 26^th November 2001) Elias J held that the power to amend applications for planning permission before the planning authority was wider than on appeal to the Secretary of State and that the only constraint on allowing amendments was the impact on third parties and the need to ensure that no prejudice was occasioned by sidestepping provisions e.g. for consultation or environmental statements. He distinguished Wheatcroft on the basis that the hearing at which the amendments were agreed in that case was by the Secretary of State on appeal at which the available safeguards for third parties might be reduced.

R (Alfred McAlpine Homes Ltd) v. Staffordshire County Council [2002] EWHC 76 (Admin) (“McAlpine”), was decided on the 17^th January 2002 without the benefit of citation of BT. In McAlpine in an extempore judgment Sullivan J refused to quash the defendant council’s decision to register a lesser area than that applied for. Sullivan J dealt with this ground of challenge to the council’s decision at paras 79-83 (having summarised the parties’ rival submissions on it at paras 55-58 and 65-70):

“79.

Does the council have power to register a smaller area than applied for? It is perfectly true that there is no express power in either the Act or the Regulations to register a smaller area of land. I have set out the relevant enactments above. The Regulations require that the application must be in a particular form, and that form requires that the land the subject of the application should be identified. However, it has to be recognised that those who make applications for registration are not necessarily expert cartographers. Plainly, they will not have the benefit, as the inspector did, of being able to consider all of the relevant evidence for and against registration of a particular parcel of land.

80.

What is the purpose of identifying the land in the application? The answer is, so that the registration authority can give appropriate notice to owners, lessees, tenants or occupiers, or to others who might wish to object to an application to register. It seems to me that, provided the boundary is not altered in such a way as to defeat that purpose of defining the land in the application form, for example by including land which might be owned, tenanted or occupied by others, there can be no sensible objection to the registration authority cutting down the extent of land to be registered.

81.

Mr Ryan’s decision [as an inspector in Spring Common] is readily understandable on the facts. In that case it would appear that a significant building which, on any basis, could not form part of a town or village green, had been carelessly included in an application. One can well understand that such an egregious error might have been fatal to that particular application, but that is very different from the facts of the present case. The applicants sought the registration of Ladydale Meadow. There was debate as to the extent to which they had used the whole of the 20 acres of the meadow. The inspector found that they had not used the whole of it. There is no question of carelessness or of the inclusion of a parcel of land that could not on any basis form part of a town or village green. Moreover, what is of importance is that no prejudice to the claimant in the present case has been suggested.

82.

Mr Wolton submits that the Wheatcroft case is not analogous to the present case because a planning permission will generally confer benefits upon the landowner, whereas a registration as a town or village green will be detrimental to an owner’s interests. Provided the registration authority does not step outside the boundary of the application and provided the landowner, tenant and occupier have had ample opportunity to make their representations, it is difficult to see why, as a matter of common sense, the registration authority should not be able to register a lesser area, provided it is not substantially different from that which has been applied for. There is no substantial difference here, only a more accurate definition of the boundaries in the light of all of the evidence. I accept Mr Mynors’ submission that it is implicit in an application to register an area of land that the applicant is saying that each and every part of that land is registrable as a town or village green. It would be quite artificial to require an applicant to split up the application site into a number of smaller parcels.

83.

Even if I am wrong about this and the registration authority does not have power itself to register a lesser area than that applied for, this court has a discretion as to whether or not to grant relief. As a matter of discretion I can see no useful purpose being served by quashing the council’s decision to register a lesser area. The only consequence would be that the applicants for registration would be able to put in a fresh application to register the lesser area. The inspector’s report recommending registration of that lesser area would be public knowledge and would plainly be evidence that could be put forward at any further inquiry, if there were to be one, and, absent any material change of circumstances or new evidence, precisely the same conclusion would be reached. Thus it seems to me, absent any prejudice to the claimant on the facts of the present case, it would be pointless to grant relief on such a limited basis.”

As it seems to me, reading his judgment as a whole, Sullivan J was adopting the same approach as that adopted by Elias J in BT, namely that in principle there is no reason why there should not be registration of a lesser area than that shown on the application, if there is no substantial difference and for this purpose there may be no difference if the reduction in area causes no irremediable prejudice to third parties.

Mr Chapman in the Report says that, as he read the judgment of Sullivan J, “the Judge’s view was (a) there is no legal impediment to registration of part of the application land because it is implicit in every application that it is an application to register each and every part of the land, (b) alternatively, that there is no impediment provided that the part registered is not substantially different from the whole of the application land. I consider that I am entitled to treat view (a) as a ratio decidendi of the case. In the present case, I consider that the registration authority can register the scrubland notwithstanding that it is substantially different from the whole of the land”.

In my judgment there is no inconsistency and no need to choose between what Mr Chapman describes as two alternatives. Sullivan J held that the registration authority does have jurisdiction to register a lesser area and can and should do so provided that doing so occasions no injustice to a third party and most particularly the landowner. There has been and can be no suggestion of any such injustice in this case. This conclusion is reinforced by (1) the judgment of Elias J in BT; and (2) the fact that, if part of the application land is a Green, surely the policy of the 1965 Act is that it should be registered as such. It cannot be the statutory policy that the part should be left in no-man’s land of being a Green but unregistrable or unregistered, or to penalise the applicant and local inhabitants for an error in the application plan when it occasions no injustice with rejection of the application.

I do not think that the weight which I would ordinarily afford to the views expressed by Mr Gerard Ryan QC can be afforded to his advice in Spring Common recommending that registration as a Green of the area excluding the house and curtilage should not be effected. My reason is that his advice was given before and accordingly without the benefit of the judgments of Sullivan J in McAlpine and Elias J in BT.

I accordingly adopt the view and hold that the Claimant is entitled (as Mr Chapman advised) to register the scrubland.

I turn to the ninth question on which guidance is sought. I was asked initially to provide guidance limited to one question namely whether it was open to Mr Chapman to advise that part of the Trap Grounds was a Green though by reason of impenetrable growth only 25% of that part was accessible by (variously stated in the Report) walkers and hardy walkers. I was subsequently asked to provide guidance on a further question which I shall deal with separately as the tenth question. On both the ninth and tenth questions the guidance can only be of the broadest kind. The inspector must plainly review the issues raised before him in the light of the answers and guidance given in this judgment. This may necessitate deciding new questions of fact and reconsidering previous decisions. I do not think that I should pre-judge any such decisions. Any decision of the Claimant can be challenged on an application under section 14 of the 1965 Act or in judicial review proceedings. So much in any case must depend on the findings of fact in the particular case.

In regard to the ninth question guidance is provided by Sullivan J in Cheltenham (at paragraph 29) where he said that the onus is on the applicant to prove on the balance of probability that the land in question has become a Green and thus that the whole, and not merely a part or parts, had probably been used for lawful sports and pastimes for not less than 20 years. He went on:

“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.”

He held (in paragraph 30) that it could not have been concluded that this test had been met on the basis of the officer’s findings in that case, including that the land was “largely” or “in the main” overgrown with trees, brambles, nettles and other vegetation.

There is no mathematical test to be applied to decide whether the inaccessibility of part of the land precludes the whole being a Green. The existence of inaccessible areas e.g. ponds does not preclude an area being held to be a Green. It is to be borne in mind that section 22 of the 1965 Act for the purposes of the Act defines “land” as including “land covered by water”. Greens frequently include ponds. They may form part of the scenic attraction and provide recreation in the form of e.g. feeding the ducks or sailing model boats. Further overgrown and inaccessible areas may be essential habitat for birds and wildlife, which are the attractions for bird watchers and others. In my view in a case such as the present the registration authority must first decide on a common sense approach whether the whole of the land the subject of the application was used for the 20-year period for the required recreational purposes. For this purpose it is necessary to have in mind the physical condition of the land during the relevant period. The physical condition can change. If the land was clear during the periods of qualifying user, the fact that it later became heavily overgrown is irrelevant. If any substantial part of the land by reason of its physical character has not been so used, then that part may not have become a Green or part of a Green and consequently the whole of the land may not be so registered. In such a situation the second question arises whether the remainder of the land satisfies the requirement and, if it does, the remainder is registrable. If the whole of the application land is not a Green, it is still open to the registration authority to find that part or parts are a Green. The availability of this alternative may save the registration authority from any temptation to strain its finding of fact on the first question to safeguard the existence of a Green.

In the course of the hearing I was asked to provide guidance on a further and distinct question of some general importance. That question (the tenth question) may be stated as follows: in determining whether the qualifying user of land is established, what (if any) account should be taken of user by local inhabitants of paths over which public rights of way on foot exist or over which public rights of way on foot may (by reason of such user) at some date in the future come into existence?

The starting point in answering this question must be section 31 of the Highways Act 1980 (“Section 31”) which re-enacts a provision in similar terms in the Rights of Way Act 1932 (“the 1932 Act”). Section 31 where material reads as follows:

“31.

(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

(2)

The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in subsection (3) below or otherwise.”

Four general observations should be made regarding this section. The first is that the public right of way arises by reason of a dedication deemed to have been made at the commencement of the 20 year user: see Turner v. Walsh (1881) 6 App Cas 636 at 642. This is in contrast with the provisions of section 22 of the 1965 Act laying down the qualifying user for class c Greens which do not rest on dedication and accordingly have no such retrospective effect.

The second is that the use and enjoyment from which dedication can be inferred must be user and enjoyment known to the owner and acquiesced in by him.

The third is that user by local inhabitants for this purpose constitutes user by the public: see Fairey v. Southampton CC [1956] 2 QB 439 at 457.

The fourth relates to the meaning of the words “other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication”. When agreeing to the insertion of these words in what became the 1932 Act, Lord Buckmaster explained that the words had the same legal effect as, and were equivalent to, the words “as a highway” (21^st June 1932, House of Lords, columns 14-16). Lord Buckmaster’s amendment would simply have read “where a way over any land has been actually enjoyed as a highway as of right …” It has been suggested that the formula is merely designed to exclude user which is permissive or tolerated, but such user is already excluded by the provision in the section that the user must be “as of right”. The true meaning and effect of the words is that the user must be as a right of passage over a more or less defined route and not a mere indefinite passing over land. It is not possible to have a public right indefinitely to stray or meander over land or go where you like. If there is no made-up or definite enduring track but merely a temporary or transitory track, that is evidence against a public right of way: see Pratt & Mackenzie’s Law of Highways 21^st ed, pages 37-8 which cites the relevant authorities. Use for recreational walking is capable of founding a case of deemed dedication of a highway unless merely ancillary to recreational activities such as sunbathing, fishing or swimming: see Dyfed CC v. Secretary of State for Wales (CA) 30^th November 1989 (reported in The Times 15^th December 1989). Use of an esplanade for strolling up and down or for amusement is not inconsistent with it being a highway: and a cul-de-sac may be a public highway if there is some kind of attraction at the far end which might cause the public to wish to use the way: see Halsbury’s Laws of England Fourth Edition Reissue Vol 21 paras 2-3. How far the public have rights of user over a public highway extending beyond that of passing and re-passing is as yet unclear. The House of Lords in DPP v. Jones [1999] 2 AC 240 held that the existence of a public right of way entitled the public not merely to pass and repass, but may include the right of public assembly so long as such assembly does not unreasonably obstruct the highway. Lord Irvine LC expressed the view that the public might use and enjoy the highway for any reasonable purpose provided that the activity did not constitute a nuisance or obstruct the highway, but no-one else agreed with his view.

The issue raised is whether user of a track or tracks situated on or traversing the land claimed as a Green for pedestrian recreational purposes will qualify as user for a lawful pastime for the purposes of a claim to the acquisition of rights to use as a Green. If the track or tracks is or are of such character that user of it or them cannot give rise to a presumption of dedication at common law as a public highway, user of such a track or tracks for pedestrian recreational purposes may readily qualify as user for a lawful pastime for the purposes of a claim to the acquisition of rights to use as a Green. The answer is more complicated where the track or tracks is or are of such a character that user of it or them can give rise to such a presumption. The answer must depend how the matter would have appeared to the owner of the land: see Lord Hoffmann in Sunningwell at pages 352H-353A and 354F-G, cited by Sullivan J in Laing at paras 78-81. Recreational walking upon a defined track may or may not appear to the owner as referable to the exercise of a public right of way or a right to enjoy a lawful sport or pastime depending upon the context in which the exercise takes place, which includes the character of the land and the season of the year. Use of a track merely as an access to a potential Green will ordinarily be referable only to exercise of a public right of way to the Green. But walking a dog, jogging or pushing a pram on a defined track which is situated on or traverses the potential Green may be recreational use of land as a Green and part of the total such recreational use, if the use in all the circumstances is such as to suggest to a reasonable landowner the exercise of a right to indulge in lawful sports and pastimes across the whole of his land. If the position is ambiguous, the inference should generally be drawn of exercise of the less onerous right (the public right of way) rather than the more onerous (the right to use as a Green).

Three different scenarios require separate consideration. The first scenario is where the user may be a qualifying user for either a claim to dedication as a public highway or for a prescriptive claim to a Green or for both. The critical question must be how the matter would have appeared to a reasonable landowner observing the user made of his land, and in particular whether the user of tracks would have appeared to be referable to use as a public footpath, user for recreational activities or both. Where the track has two distinct access points and the track leads from one to the other and the users merely use the track to get from one of the points to the other or where there is a track to a cul-de-sac leading to (e.g.) an attractive view point, user confined to the track may readily be regarded as referable to user as a public highway alone. The situation is different if the users of the track e.g. fly kites or veer off the track and play, or meander leisurely over and enjoy the land on either side. Such user is more particularly referable to use as a Green. In summary it is necessary to look at the user as a whole and decide adopting a common-sense approach to what (if any claim) it is referable and whether it is sufficiently substantial and long standing to give rise to such right or rights.

The second scenario is where the track is already a public highway and the question arises whether the user of the track counts towards acquisition of a Green. In this situation, the starting point must be to view the user as referable to the exercise (and occasional excessive exercise) of the established right of way, and only as referable to exercise as of right of the rights incident to a Green if clearly referable to such a claim and not reasonably explicable as referable to the existence of the public right of way.

The third scenario is where there has been a longer period of user of tracks referable to the existence of a public right of way and a shorter period of user referable to the existence of a Green. The question which arises is the effect of the expiration of the 20 year period required to trigger the presumption of dedication of a public highway on the potential existence after the full 20 years qualifying user of a Green. During the balance of the latter 20 year period the user of the path will prima facie be regarded as referable to the exercise of the public right of way (cf. paragraph 104 above). The question raised is whether the user during the previous period should likewise be so regarded because the presumed dedication as a public highway dates back to the commencement of the 20 year period of user of the way. In a word, does the retrospective operation of the dedication as a public highway require that the user of the path throughout the 20 year period giving rise to the dedication should be viewed retrospectively as taking place against the background of the existence throughout that period of a public footpath? In my judgment the answer is in the negative. Over the period in question the user of the path was in fact “as of right” and not “of right”. It is totally unreal to view user as taking place against the background of the existence of a public right of way at a time before that right of way came into existence. Where a public right of way comes into existence during the period of potentially qualifying user for the existence of a Green, in determining whether the qualifying user is established it is necessary to have in mind that at least some of the user must have been referable to the potential (and later actual) public right of way. But that does not mean that acts of user may not also or exclusively be referable to qualifying user as a Green. I do not think that anything said by, let alone the decision of, Sullivan J in Laing should be read as to the contrary effect. The question must in all cases be how a reasonable landowner would have interpreted the user made of his land.