The Plestor, Selborne, Hampshire. Oddly, the Plestor was not registered as a village green under the Commons Registration Act 1965 nor under Part 1 of the Commons Act 2006

Amended on 29 March 2020 to refer to the possibility of amending the Victorian statutes by order under s.54.

The judgement of the Supreme Court in R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs explored the question of whether an application to register land as a town or village green under s.15(1) of the Commons Act 2006 must fail (notwithstanding that it satisfies all of the statutory criteria) if the registration would conflict with the statutory purposes for which the land may be held — the court’s conclusion, by a majority, was that it must. The court recognised that registration would confer on local people a right to use the land for lawful sports and pastimes, and that where the land was held by a public body, such a right could make it impossible for that body to use the land for the purposes for which it was acquired. The effect of the judgment is that most land held by public bodies, acquired under statutory powers for a particular purpose, is unlikely to be capable of registration as a green.

In their joint opinion, Lords Carnwath and Sales said:

‘7. An unexplained curiosity is that section 10 of the 1965 Act, which provided that the register was “conclusive evidence of the matters registered, as at the date of registration”, is not repeated in the 2006 Act. As things stand the repeal of section 10 has been brought into effect only in the pilot areas. (Section 18 of the 2006 Act, headed “Conclusiveness”, which has effect in the pilot areas, does not on its face go so far as section 10.) In the Trap Grounds case, Lord Hoffmann had agreed (at para 43) with Lord Carnwath’s analysis in the Court of Appeal [2006] Ch 43, para 100, that the 1965 Act “created no new legal status, and no new rights or liabilities other than those resulting from the proper interpretation of section 10”. It was on the “rational construction of section 10” that he relied for his view that land registered as a town or village green “can be used generally for sports and pastimes” (para 50), and was also subject to section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 (para 56). None of the experienced counsel before us was able to offer an explanation for the disappearance of section 10, but none sought to argue that it had made any material difference to the rights following registration. Not without some hesitation, we shall proceed on that basis.’

This blog attempts to answer the challenge posed therein: the disappearance of s.10.

Under the Commons Registration Act 1965, once the registration of a town or village green had become final (either in the absence of an objection, or following confirmation by a Commons Commissioner), it attracted conclusive status. S.10 provided that, ‘The registration under this Act of any land…as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration…’. Sounds good? Well, yes — up to a point. First, the registration was conclusive only at the date of registration. Those registrations (under s.4 of the 1965 Act) were now made over half a century ago. In practice, the elapse of time need not matter: the conclusive evidence of registration still holds good, unless one can show that the registration has been affected by some legally consequential subsequent event, such as an exchange of part of the green for other land done under s.147 of the Inclosure Act 1845 (now repealed).

Secondly, what does it mean that the registration is conclusive evidence of the matters registered? For that, we must look at what was required to be registered under the 1965 Act: the extent and boundaries of the green (recorded in the register map), the name and description of the green and the provenance of its registration (who applied to register it, and when, and how it came to be finally registered, recorded in the land section of the register). In some cases, it will also include (in the rights section of the register) what rights of common were registered as exercisable over it. It does not include the registration of ownership, if there is one, because s.10 does not refer to ownership — only to registration of land as a green and to registration of any rights of common.

What the 1965 Act did not do, at least not on the face of the Act, was to change the law relating to greens (or for that matter, common land) which was registered under it. The protections for greens which already subsisted, at common law and under statute law — for example, from encroachment or damage — applied to any land which could be shown to be a green. Registration demonstrated, by virtue of the conclusive provision in s.10, that the green did attract that protection. But — assuming that the land was rightly registered, and had long been a green, that protection was not new — it was just put beyond doubt.

The 1965 Act therefore was not very radical. It provided for the registration of land as common land or town or village greens, and the rights of common exercisable over them. But it did not go any further, and provide for reform of the law relating to such land and such rights. Or so it was thought.

Then in 2006 along came the judicial committee of the House of Lords in the Trap Grounds case (Oxfordshire County Council v Oxford City Council). Lord Hoffmann, who delivered the leading judgment, decided that, whereas the 1965 Act was predicated on an expectation of further, second stage, legislation to deliver better management of common land, its provision for the registration of greens assumed ‘that Parliament legislated for some practical purpose and was not sending Commons Commissioners round the country on a useless exercise’ (para.49). So far as it related to greens, the 1965 Act was intended to be self-contained: extent was concluded by registration, ownership was determined by the Commons Commissioners (where necessary), and ‘the rational construction of section 10 is that land registered as a town or village green can be used generally for sports and pastimes.’ Thus a right of use of a registered green could be inferred from the conclusiveness of its registration. This right was absent in plain words from the 1965 Act, but read into it by the judicial committee.

In addition, Lord Hoffmann found (para.56) that, ‘the effect of section 10 of the 1965 Act is to apply [‘the Victorian’] statutes to land registered as a town or village green.’ These statutes — s.12 of the Inclosure Act 1857 and s.29 of the Commons Act 1876 — confer on greens protection from encroachment and damage. Lord Hoffmann’s conclusions on these points were supported by Lords Scott, Rodger and Walker (Baroness Hale declining to express a view on the ‘examination paper’ questions).

Part 1 of the Commons Act 2006 (referred to below just as ‘Part 1’) replaces the 1965 Act. It introduces a new regime for the registration of common land and town or village greens, seeks to ensure that the registers are brought up to date and kept up to date, and allows for land (and rights of common) to be added to the register or removed from the register in certain closely defined circumstances. As it happens, Part 1 has been fully brought into force only in nine pioneer (or pilot) areas in England, so that the 1965 Act endures as the mechanism for managing registration elsewhere in England. One of those pioneer areas is Lancashire, the appellant before the Supreme Court. Therefore, in Lancashire, Part 1 is in force, and the 1965 Act has been repealed.

As the court observed, Part 1 has little to say about the conclusiveness of registration. The registers held under Part 1 are inherited from those prepared under the 1965 Act. We might alight on s.18 of the 2006 Act, headed ‘Conclusiveness’, in expectation of finding similar provision to s.10 of the 1965 Act. But it is not there. S.18 makes provision about the conclusive nature of registered rights of common, but has nothing to say about the conclusive nature of registered land. Why not?

The answer is that it no longer matters — or at least, that it ought not matter. The importance of the registers held under Part 1 is the land registered in them, whatever the provenance of the registration, and whatever the character of the land. S.2(2) provides that: ‘The purpose of a register of town or village greens is—(a) to register land as a town or village green’ (not the alternative, to register land which is a town or village green). And S.3(6) requires that: ‘Except as provided under [Part 1] or any other enactment—(a) no land registered as…a town or village green is to be removed from the register in which it is so registered’. Thus, once captured in the register, land is to remain in the register, save for express provision for deregistration. It does not matter whether what is registered is, in its common law or statutory origin, truly a town or village green, or whether some mistake was made in the past (perhaps at the time of provisional registration under the 1965 Act) — it is enough that it is registered. New land may be registered as a town or village green under s.15 if certain requirements are met (and there are other provisions to secure registration of new land under ss.14, 17 or 19 and para.3 of Sch.2); land may be deregistered if certain requirements are met under ss.14, 17 or 19 and paras.8 or 9 of Sch.2. Part 1 acts as a gateway for land to be admitted to or removed from the registers: it is not enough, in deciding whether to register or deregister land, to show only that the land is, or is not, common land or a town or village green according to any common law concept.

What, therefore, would be the purpose of deeming to be a green any land registered as a town or village green (as was the case under s.10 of the 1965 Act)? It would not endow the registration with any greater potency. Nor would it hinder an application to deregister the land, because Part 1 does not enable deregistration on grounds only that land is or is not a town or village green (note that proof that land was never a green may be relevant, but is not sufficient, to an application under para.9 of Sch.2).

Unlike the 1965 Act, which changed very little of the contextual common and statute law relating to commons and greens, the 2006 Act has a great deal to say about registered land. Part 1 is concerned with the management of the registers of common land and town or village green, and enables applications to amend the registers. Part 2 enables a commons council to be established for registered common land or a town or village green subject to rights of common. Part 3 requires the Secretary of State’s consent to works on registered common land (it does not generally apply to town or village greens because these are subject to controls under the Victorian statutes). Part 4 enables local authorities to act to protect unclaimed registered common land and greens, and the Secretary of State to defend registered common land or a town or village green subject to rights of common against unauthorised agricultural activities.

In all these cases, it matters not at all whether the registered land is truly common land, or truly town or village green — the provisions apply regardless. That is the ethos of the 2006 Act. In considering an action brought against unlawful works on registered common land under Part 3, the court ought to have no regard to whether the land was rightly registered as common land (albeit the court has discretion in deciding whether to grant an order, and might conceivably take such matters into account). It is therefore unnecessary to provide that the land is common land by virtue of being registered as such: what matters is that it is registered as such.

That said, there remains some legislation which continues to refer, in effect, to common law concepts of common land and town or village greens. For example, s.19 of the Acquisition of Land Act 1981 applies special controls to the compulsory purchase of a ‘common’, which is defined (in subs.(4)) to include ‘any land subject to be enclosed under the Inclosure Acts 1845 to 1882 [i.e. common land in the broadest sense of the term], and any town or village green’. Where a registered green might be subject to the requirements of (say) s.19 of the 1981 Act, it cannot be said with absolute confidence that the green is a town or village green for the purposes of the 1981 Act. For example, it may be said that what was registered as a green was no more than highway waste, and incorrectly registered (perhaps without objection). Under Part 1, the absence of any conclusiveness provision might reinforce such doubts. It may not be possible to rely on s.10 of the 1965 Act because, in the pioneer areas, it has been repealed — although in the absence of any contrary intention, it may be that the conclusiveness conferred by s.10 is preserved by s.16(1)(b) of the Interpretation Act 1978.

Is the absence of any replication of s.10 of the 1965 Act in Part 1 therefore an omission or oversight? No. The explanation lies in the power to amend other enactments found in s.54 of the 2006 Act. S.54 enables other legislation to be amended, by order, to provide that references in them to common land and town or village greens are to be taken to refer to registered common land and registered greens, and such other land as may be described. The intention was that s.19 of the Acquisition of Land Act 1981, and similar enactments referring only to pre-registration concepts of common land and greens, would be amended by orders made under s.54 so that they applied squarely to registered land (and to any other classes of land as might be necessary — for example, common land and greens in the New Forest, to which Part 1 does not apply). But that has not yet been done, partly because Part 1 has been implemented only in nine local authority areas — meaning that an amendment to s.19 of the 1981 Act, and other such enactments, would be complicated by the requirement to make different provision for different geographical areas depending on whether they are in or outside the pioneer areas. And partly because the initiative to implement the 2006 Act has lost its way.

As it happens, an amendment need not be abstruse: an example is the power to remove resident trespassers on common land under s.61 of the Criminal Justice and Public Order Act 1994, which was amended by para.5 of Sch.5 to the 2006 Act (i.e. without the need for a s.54 order), and which has been brought into force in England (but not Wales). S.61(9), as amended, now provides that: ‘”common land” means—(a) land registered as common land in a register of common land kept under Part 1 of the Commons Act 2006; and (b) land to which Part 1 of that Act does not apply and which is subject to rights of common as defined in that Act’. Its application to non-pioneer areas is addressed in the commencement order for the amendment (SI 2011/2460, art.3), which states that in such areas: ‘the references to a register kept under Part 1 are to be read as referring to the appropriate register maintained under section 3(1) of the Commons Registration Act 1965.’ That’s all that’s needed. With a potentially endless delay in full implementation of Part 1, it’s time to make similar amendments to other enactments, so that, where they refer to common land or town or village greens, they refer to registered common land and town or village greens and such other land as may be appropriate — with transitional provision for non-pioneer areas. That is not ideal, because the non-pioneer areas have not had the opportunity to bring the registers up to date under Part 1. But they have now had six years during which applications could be made to deregister certainly wrongly registered land, by virtue of the interim implementation of s.19(2)(a), and paras.5 to 9 of Sch.2. If that were done, one of the objectives of the 2006 Act — to achieve greater consistency in the management and regulation of common land and greens — would be satisfied, and the task of practitioners in this field would be somewhat simpler.

This leaves unaddressed the ‘unexplained curiosity’ implied by Lords Carnwath and Sales in their joint opinion in Lancashire: whether where a green is registered under Part 1 — and particularly one registered under s.15 of the 2006 Act, which has never attracted the conclusiveness provision in s.10 of the 1965 Act — a right of access is conferred for lawful sports and pastimes, and the green becomes protected under the Victorian statutes? Their Lordships, referring to Lord Hoffmann’s judgment in the Trap Grounds, said that: ‘It was on the “rational construction of section 10” that he relied for his view that land registered as a town or village green “can be used generally for sports and pastimes”, and was also subject to section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876’. Quite so. But Lord Hoffmann reached his conclusion not solely on the basis of s.10, but ‘assuming that Parliament legislated for some practical purpose and was not sending Commons Commissioners round the country on a useless exercise’ so that ‘registration would have been useless’. And he recognised that ‘the primary purpose of the 1965 Act, as applied to town and village greens, was…to create a register of town and village greens which would include all land over which statutory or customary rights of recreation existed or probably existed‘ (emphasis added). He continued: ‘it was in my view a necessary implication that land conclusively presumed to be a village green should be subject to the rights which the statute treated as creating a village green, namely the right to indulge in sports and pastimes.’ Lord Hoffmann found the judgment in the Court of Appeal in R v Suffolk County Council ex parte Steed to be in support: in that case, Pill LJ barely found it necessary to refer to s.10 in concluding that rights were conferred.

Even if s.10 of the 1965 Act was core to the judicial committee’s finding in the Trap Grounds, it is impossible to conclude that, in repealing and replacing the 1965 Act in almost identical terms in respect of the registration of new town or village greens without the provision in s.10, Parliament intended to abrogate the conferral of rights over new greens registered under s.15 of the 2006 Act, or that such greens should fail to be protected in the same way — there is no warrant for such a conclusion to be inferred from the 2006 Act. And if the courts did adopt that conclusion, it would be possible to amend the Victorian statutes by order under s.54 of the 2006 Act so that they expressly apply to all registered town or village greens (it would not be so straightforward to confer a right of access to such greens: that would demand primary legislation).

Let’s briefly approach it another way. What if Part 1 did contain a conclusiveness provision similar to s.10 of the 1965 Act — what would it mean in that context, that land registered as a town or village green conclusively is deemed to be a town or village green? So what? Such provision made sense in the earlier context of the 1965 Act, which (as it seemed at the time) did nothing other than to secure the registration of greens, and demanded some heft to show that, as Lord Hoffmann contemplated, registration was not useless. But in the later context of the 2006 Act, what ought to matter is that the land is registered as such — not that the land is, in some abstract or common law sense, a town or village green. Having been registered, the consequences flow from that registration.

As it happens, that outcome is as yet imperfect, awaiting full implementation of Part 1, and consequential amendments under s.54. And, it must be said, it is perhaps fortunate that, in the present imperfect context, their lordships were content to accept, ‘not without some hesitation’, the submissions of the parties that the absence of a conclusiveness provision in the 2006 Act did not make ‘any material difference to the rights following registration’. But it is impossible to see how it could. For what would be the purpose in registering a town or village green under the 2006 Act if what was registered attracted no rights of use, and no protection?