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R v Oxfordshire County Council and others, ex parte Sunningwell Parish Council.

Country/Territory
United Kingdom
Type of court
National - higher court
Date
Jun 24, 1999
Source
UNEP, InforMEA
Court name
House of Lords
Seat of court
London
Judge
Lord Browne-Wilkinson
Lord Steyn
Lord Hoffmann
Lord Hobhouse of Wood-borough
Lord Millett.
Reference number
[1999] UKHL 28
Language
English
Subject
Land & soil, Environment gen.
Keyword
Land-use planning Access right
Abstract
The judgment significantly changes the criteria by which registration authorities are required to determine applications to register town or village greens and defines ‘lawful sports and pastimes’ and ‘as of right’. Lawful sports and pastimes: these activities do not need to be either organised sports or have a communal element. Activities such as dog walking, kite flying, solitary or family activities are sufficient to justify registration as long as there is an established pattern of use and it is not ‘trivial and sporadic’.As of right (Section 22(2) Commons Registration Act 1965) The law prior to the Sunningwell judgment was based on the case of Steed which stated that it required ‘an honest belief in a legal right to use ….’ Lord Hoffmann, in the present judgment, states that ‘the actual state of mind of the …….. user is plainly irrelevant’. The subjective element has therefore been removed. It is now only necessary to provide evidence that the green has been used for lawful sports and pastimes "without force- without secrecy- without permission". The judgment also states that, if the use of the land was subject to ‘neighbourly toleration’ by the landowner, this will not defeat an application unless there is strong evidence to show that the use as of right was not consistent with any toleration. The use of the land must be ‘predominantly’ by the local inhabitants and use of the land by some members of the general public will not be sufficient to defeat an application. In Sunningwell people from outside the village used a public footpath on the glebe but the evidence showed that it was mainly the villagers who used the land for ‘sports and pastimes’. However the issue of locality was not discussed by Lord Hoffmann and remains a complex evidential issue. The key locality tests are:• is there a particular and recognisable community or neighbourhood where most of the recreational users of the land live or work? • can the boundaries of this locality be clearly shown on a map? • locality cannot be defined only by reference to persons; it must be defined by reference to geography. Lord Hoffmann said that whilst the statutory wording “merely requires proof of user by the inhabitants of any locality it does not say user only by the inhabitants of the locality”. Having then gone on to consider the evidence which had been put before the public inquiry he concluded that “it is sufficient that the land is used predominantly by inhabitants of the village". The decision means that a successful application to register a village green will result in the inhabitants being able to continue to enjoy activities on the land in perpetuity and will almost certainly have the protection of section 29 of the Commons Act 1876 which will prevent any encroachment or enclosure.