UK: Village Greens - Rustic Swains and Maypoles?

Last Updated: 22 June 2006
Article by Nicholas Dobson

Village greens are part of the idyllic soft-focus dream factories of our collective imaginations. The England of the good old 'antient' days - albeit safely locked away in that reality-proof cell called 'the past'. Happy, quaint folk dancing contentedly around a sunlit maypole. Cheerful lads chasing giggling, rosy-cheeked milkmaids. Rustic swains quaffing foaming ale served by jolly, ruddy-faced landlords in friendly thatched inns. As the poet Oliver Goldsmith put it in his 1770 poem, The Deserted Village: 'Where humble happiness endear'd each scene!'

The House of Lords also quoted from Goldsmith when on 24 May 2006 it was called upon to rule upon some sticky twenty-first century issues in Oxfordshire County Council v Oxford City Council and others [2006] UKHL 25.

Lord Hoffman noted the traditional village green as a creation of the literature of sensibility in the late 18th century and cited the green at Auburn, in the Deserted Village as the best example. This was a place where:

'. . .toil, remitting, lent its turn to play, And all the village train, from labour free, Led up their sports beneath the spreading tree! While many a pastime circled in the shade, The young contending as the old survey'd; And many a gambol frolick'd o'er the ground, And sleights of art and feats of strength went round; And still, as each repeated pleasure tired, Succeeding sports the mirthful band inspired. . .'.

But as Lord Hoffman was quick to point out, the law 'took a more prosaic view of the matter'. And the 'village green' in issue was anything but idyllic. For example, the area contained scrubland with piles of builders' rubble up to a yard high, mostly covered in moss and undergrowth. As Lord Walker indicated, he had some unease about recognition of all or part of the land in question as a town or village green given that it was 'an over-grown, rubble-strewn, semisubmerged area, sandwiched between the canal and the railway in north-west Oxford'. Nevertheless, with Lord Rodger, he accepted that the way the statutory definition was framed (see below) pointed to spaces of land way beyond the 'traditional' village green. Furthermore, as Lord Rodger noted, there is no measure in the Commons Bill (going through Parliament at the time of writing) which would narrow the relevant definition(s) to more 'traditional' village greens.

And the Lords also had to answer some testing, up to date practical legal questions. These included: when did land become a village green; whether registration created any rights (and if so, what) and whether the registration authority had power to allow amendments to the application form and register an area of land different from that originally claimed. But first we need to take a look at some of the provisions in the Commons Registration Act 1965.

Commons Registration Act 1965

The 1965 Act provided for the registration of common land and of town or village greens. By section 1(2)(a): 'no land capable of being registered under this Act shall be deemed to be common land or a town or village green unless it is so registered'. Lord Hoffman considered that 'the effect of nonregistration was to extinguish such rights of recreation as may have existed by custom or statutory allotment and were registrable' when the measure took effect. Section 10 deals with the effect of registration. This provides that the registration under the 1965 Act of any land as common land or as a town or village green, or the registration of any rights of common over any such land 'shall be conclusive evidence of the matters registered, as at the date of registration'.

But, Goldsmith apart, what is a town or village green for these purposes? Section 22 is sadly far removed from the romance of poetry or tradition and provides for three categories of land. In summary these are: (a) that which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality; or (b) that which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes; or (c) 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 continue to do so, or have ceased to do so for not more than such period as may be prescribed. No such period has apparently yet been prescribed. So, any residual romantic notion of village greens having been finally removed by section 22, to some of the questions before the Lords.

When does land become a village green?

This has been a source of difficulty with many legal twists and turns. Lord Hoffman agreed with Carnwath LJ in the Court of Appeal that since section 10 of the 1965 Act takes effect in relation to any particular land only on registration, there is no legal basis for treating that land as having acquired village green status by virtue of an earlier period of qualifying use. However, Lord Hoffman disagreed with the view of Carnwath LJ that user had to continue until the date of registration for:

'. . .that would mean that any well-advised landowner, on receipt of an application to register, would erect barbed wire or take other steps to prevent the user from continuing, or at any rate continuing as of right.'

Instead Lord Hoffman considered that the correct date is that of the application (which he indicated appears to be assumed by the Commons Bill, currently before Parliament which, if enacted, would repeal and replace the 1965 Act).

What rights does registration confer?

In Lord Hoffman's view, the rational construction of section 10 of the 1965 Act is that land registered as a town or village green can be used generally for sports and pastimes. For:

'Parliament must have thought that if the land had to be kept available for one form of recreation, it would not matter a great deal to the owner whether it was used for others as well.'

However, that doesn't mean that the owner is altogether excluded from the land. The owner still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants. But there 'has to be give and take on both sides'.

Can the registration authority allow amendments to the application?

On considering the statutory background it seemed to Lord Hoffman that the registration authority should be 'guided by the general principle of being fair to the parties'. For it would be pointless:

'. . .to insist upon a fresh application (with a new application date) if no prejudice would be caused by an amendment, or if any prejudice could be prevented by an adjournment to allow the objectors to deal with points for which they had not prepared.'

However, Lord Hoffman said he was adding two footnotes, in case of any doubt:

  1. there is no rule that the amended application must be for substantially the same land as the original application. Whilst if it relates to a larger or different piece of land, the inspector or registration authority may well think that fairness requires republication of a new application, the matter remains one for the exercise of their discretion.
  2. the registration authority has no investigative duty requiring it to find evidence or reformulate the applicant's case. It is entitled to deal with the application and the evidence as presented by the parties.

Lord Hoffman also agreed with the Court of Appeal that the registration authority is entitled, in the absence of any amendment of the application, to register only that part of the land which the applicant has proved to have been used for the necessary period. He reiterated that there is no rule that the lesser area must be substantially the same or bear any particular relationship to the area originally claimed.

Lords Roger and Walker delivered speeches concurring with that of Lord Hoffman.

So from eighteenth century lyricism to law, all the fun of the village green was to be had in the House of Lords on 24 May 2006. But although Goldsmith might be turning in his grave, it appears that the modern village green will remain a long way off from rustic swains and maypoles not to say the 'lovely bowers of innocence and ease' of poetic imagination.

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