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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Whitmey, R (on the application of) v The Commons Commissioners  EWCA Civ 951 (21 July 2004)
Cite as:  32 EGCS 63,  3 WLR 1342,  3 EGLR 1,  4 PLR 68,  1 P & CR 24,  QB 282,  1 QB 282,  45 EG 126,  EWCA Civ 951,  3 WLR 1343
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT,
QUEENS BENCH DIVISION
(Mr Justice Richards)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
MR JUSTICE PUMFREY
| The Queen on the Application of Christopher John Whitmey
|- and -
|The Commons Commissioners
J. Karas and R Reed (instructed by Legal Services General, DEFRA) for the Department for the Environment, Food and Rural Affairs, an Interested Party
Hearing dates : 30 and 31 March 2004
Crown Copyright ©
Lady Justice Arden :
The 1965 Act
"'town or village green' means 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] 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." ([a], [b] and [c] added to signify the different potential classes of green.)
"(b) … it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of regulations made under this Act;
and, … the court deems it just to rectify the register."
The first issue
"… 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 …' " (page 348).
The second issue
The third issue
Right to a fair trial
1. In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …"
"any other matter in relation to the application which appears to the authority to afford prima facie grounds for rejecting the application." (regulation 6(3))
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principle of international law.
The proceeding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties"
Lord Justice Waller :
"(1) the analysis set out in the appendix provides the correct background to this case which is crucial for a proper understanding of the Claimant's submissions;
(2) this shows that the determination of applications for registration of a village green involves the determination of private law land rights between individuals;
(3) it cannot have been intended by Parliament, nor can the statutory scheme be construed in such a way, that such disputes over such rights can be determined by local authorities by way of a discretionary, non-statutory and ad hoc procedure:
(4) such a construction would be contrary to Article 6, because it does not provide for the determination of civil rights by a tribunal established by law;
(5) such a construction and result is inconsistent with the way disputed applications made before 1970 were determined, as well as the way in which disputed applications for the registration of analogous rights such as easements were dealt with before 2003, and are now to be dealt with under the new Land Registration Act 2002;
(6) it would be appropriate and consistent with the Human Rights Act for such rights to be determined by the Commons Commissioners, and since it is possible to construe the statutory material so as to produce this result, such a construction should be adopted;
(7) if this is not accepted, this does not indicate determination by Registration Authorities is lawful or proper, rather that such disputes must remain where it always had been, i.e. in the Courts."
"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. This made it difficult for the local people to make improvements (for example, by building a cricket pavilion). There was no one from whom they could obtain the necessary consent.
The Act of 1965 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 2(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 Sunningwell Parish Council applied to the Oxfordshire County Council, as registration authority, for an amendment to add the glebe to the register on the ground that it had become a village green by 20 years' use ending on 1 January 1994.
The Board objected to the application. The regulations made under section 13, the Commons Registration (New Land) Regulations 1969 (S.I. 1969 No. 1943), prescribe no procedure for resolving disputes over applications for amendment. The jurisdiction of the Commons Commissioners was limited to disputes arising out of the original applications, all of which have now been determined. The county council was left free to decide upon its own procedure for dealing with an application to amend. It decided to hold a non-statutory public inquiry and appointed Mr. Vivian Chapman, a barrister with great experience of this branch of the law, to act as inspector. Mr. Chapman sat for two days in the village hall, received written and oral evidence and heard legal submissions. He submitted a report to the county council in which he made various findings of fact which the county council accepted.
"(1) to consider every statement in objection to an application which it receives before considering the application;
(2) send the applicant a copy of any such statement, and
(3) give the applicant a reasonable opportunity of dealing with the matters in such statements;
(4) give the applicant a reasonable opportunity of dealing with any other matter in relation to the application which appears to the authority to afford prima facie grounds for rejecting the application."
Mr Justice Pumfrey :