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ITEM PN8 -
ANNEX 1
PLANNING
& REGULATION COMMITTEE –
13 JANUARY 2003
COMMONS
REGISTRATION ACT 1965: APPLICATION TO REGISTER THE TRAP GROUNDS, NORTH
OXFORD, AS A TOWN GREEN
Application
to Register the trap grounds, North Oxford, as a Town Green
Extract
from the Report of Vivian Chapman, Inspector
–
Dated 23 December 2002
12. Findings
of Fact
On
carefully considering all the evidence submitted to the public inquiry,
I make the following findings of fact:
12.1. The
Trap Grounds have at all material times over the twenty years before the
application been open and unenclosed so that pedestrian entry by local
people has been unimpeded. The only evidence of any barrier is the chain,
head-high bar and bollards which successively existed for some period
during the 1980s at the entrance to Frog Lane. In my view, these were
plainly intended only to prevent vehicular access to Frog Lane and formed
no barrier to pedestrian access. They could not be reasonably construed
as intended to prevent pedestrian access.
12.2. There
has not been any sign on or near the Trap Grounds to discourage entry
by local people and the city council has never taken any other steps to
prevent or deter entry to the Trap Grounds or to remove local people from
the Trap Grounds.
12.3. Save
in a very few cases of organised visits by groups nobody has asked for
or been given permission to enter the Trap Grounds by the city council.
12.4. The
reed beds have not been used to any material extent for recreation. They
are generally inaccessible because they are largely under water all year
round. Access has been confined to a very few persons particularly interested
in their ecology.
12.5. The
scrubland has been used throughout the twenty year period to a material
extent for informal recreation by local people. Use has grown over the
twenty year period but I am satisfied that there was material use from
the beginning of the twenty year period. There is clear evidence to that
effect from witnesses whose evidence I have accepted after hearing their
evidence at the public inquiry. During the critical early period from
1982 to 1985, there was the evidence of five witnesses to prove recreational
use: i.e., Miss Robinson, Mrs Cannon, Mrs Holbrook, Professor Allport
and Mrs Thielker. That evidence is supported by a considerable body of
written statements from witnesses who did not give evidence at the public
inquiry. Sixteen witnesses who gave written statements but did not appear
at the public inquiry gave evidence of recreational use over the critical
period of 1982 to 1985. Many witnesses gave evidence of seeing other users.
The only contrary evidence came from objectors who did not attend the
public inquiry to give oral evidence. The documentary evidence relied
upon by Oxford City Council does not cause me to doubt the evidence of
the applicant’s witnesses. Although the scrubland bore the marks of its
former use as a dump for builders’ rubble, dumping had stopped in the
1970s at the latest and the land was left neglected to grow vegetation
on and around the rubble. Standing back and applying common sense, it
seems to highly probable that such a disused and unprotected open area
on the edge of a densely populated part of Oxford would be used by local
people for dog walking, children’s play and general informal recreation.
It seems to me to be a typical case of institutionally owned open land
on the urban fringe which is neglected by the landowner because it has
long term development plans and which attracts use by local people for
informal recreation.
12.6. The
character of the scrubland has changed over the twenty year period in
that it has become more overgrown with maturer vegetation. There have
always been beaten tracks across the scrubland, but it has always been
possible to leave the tracks and wander generally over the land, and many
users have done so. There is no difference in character or user between
the ten metre strip that the applicant wishes to exclude from her application
and the rest of the scrubland.
12.7. The
recreational users of the scrubland have predominantly come from a local
area which lies within the parish of St Margaret’s. Within that area,
users have predominantly come from the four streets which lie immediately
across the canal from the Trap Grounds, i.e. Hayfield Road, Frenchay Road,
Chalfont Road and Polstead Road. I find this unsurprising. Except for
people with specialist interests in ecology, the scrubland is principally
attractive to people who live within a short walking distance, who want
a short walk, with or without their dog, or somewhere close for their
children to play.
12.8. Frog
Lane has principally been used during the relevant twenty year period
as a means of access to and egress from the scrubland rather than as a
recreational destination in itself. It therefore has more of the character
of a right of way than that of a town green.
13. Applying
the Law to the Facts
I
now turn to apply the law to the facts that I have found. It is convenient
to consider the various elements of the statutory definition of town or
village green, although I do not lose sight of the fact that the definition
must be considered as a whole and that the various parts of the definition
take colour from each other.
Land…
The Trap Grounds are plainly "land", even those parts which are under
water. See Commons Registration Act 1965 s 22(1).
…on
which for not less than twenty years… I have found that the scrubland
has been used for informal recreation by local people for the twenty years
immediately preceding the application. It is true that, in her application,
Miss Robinson referred to the wrong twenty year period, but it was not
argued by Mr Petchey that this was fatal to her application. In my view,
it is permissible to consider the application with reference to the correct
twenty year period. It would be absurd to require Miss Robinson to make
a new application stating a different period. There is no suggestion that
anyone is prejudiced by correcting the mistake in her application.
…a
significant number of the inhabitants of any locality… In my judgment,
the evidence shows sufficient use by inhabitants of the locality of the
parish of St Margaret’s over the whole of the relevant twenty year period
to signify that the land in question was in general use by the local community
for informal recreation, rather than occasional use by individuals as
trespassers. In my view the number of users who were inhabitants of the
parish were "significant" in the ordinary and natural meaning of that
word in the English language. In reaching that conclusion, I bear in mind
not only the witnesses who gave oral evidence to the public inquiry, but
also the supporting evidence of written statements by witnesses who did
not give oral evidence and the evidence of many witnesses that they saw
other local people indulging in informal recreation on the scrubland at
the same time as themselves. I am also assisted in reaching that conclusion
by the map prepared by the applicant showing the addresses of witnesses
in relation to the boundaries of the parish.
…or
of any neighbourhood within a locality… Further, it appears to me
that the inhabitants of the area principally consisting of Frenchay Road,
Hayfield Road, Polstead Road and Chalfont Road can properly be regarded
as inhabitants of a neighbourhood within the locality of the parish of
St Margaret’s. I explained my understanding of the meaning of "neighbourhood"
in my Report in the case of Shooter’s Hill, Lightwood, Stoke-on-Trent
(8th May 2002) as follows:
"This
raises the question, on which there is yet no guidance from the courts,
of what is meant by a "neighbourhood within a locality". It appears to
me that the parliamentary purpose underlying s 98 of CRoW 2000 was to
amend the original definition of town or village green in s 22(1) of the
Commons Registration Act 1965 by extending the definition of land worthy
of protection by registration so that land which had been used by local
inhabitants for recreation for many years did not escape registration
because it fell outside the narrow construction placed by the courts on
the original definition. The first object of the amendment was to recognise
that land worthy of protection might be used for informal recreation by
the inhabitants of an area smaller than some defined division of the country
known to the law. See, for example, the discussion by Carnwath J of the
Report of Mr Ryan QC to Sussex County Council in R v Suffolk County
Council ex p Steed (1995) 70 P&CR 487 at p 501-502. The second
object was to recognise that land worthy of protection might be used both
by local people and others and to replace the "predominant user" test
in Sunningwell by the less stringent "significant number" test.
In my judgment, it is necessary to construe s 98 with these purposes in
mind.
"Neighbourhood"
is a word of very flexible meaning, as reference to any dictionary will
confirm. However, it is an ordinary English word which is frequently used
in statutes and legal documents. For example, the word is used in relation
to restrictive covenants in s 84 of the Law of Property Act 1925 and has
been the subject of construction in numerous reported decisions of the
Lands Tribunal. Recreational allotments for the inhabitants of a neighbourhood
were envisaged in ss. 27 and 30 of the Inclosure Act 1845. Under s 7 of
the Commons Act 1876, Inclosure Commissioners were directed to take into
consideration the benefit of the neighbourhood, which was defined in the
preamble as "the health, comfort, and convenience of the inhabitants
of any cities, towns, villages, or populous places in or near any parish
in which the land to be enclosed, or any part thereof, may be situated".
In Stride v Martin (1897) 77 LT 600 a Queen’s Bench Divisional
court considered an agreement for the sale of a retail milk business containing
a covenant by the vendor not to employ anyone or to retail milk on his
own account in the neighbourhood of Southampton or Norham. The court upheld
the covenant saying that; "The word "neighbourhood" equals in this
case a distance to stop competition." It seems to me that the word
"neighbourhood" has to be construed in the light of the context in which
and the purpose for which it is used.
In
s 98, I consider that the word "neighbourhood" is used by reference to
the area in which recreational users of the Application Land reside. It
does not seem to me that it is fatal to the application that the area
has no neighbourhood name. I think that "neighbourhood" is used as meaning
the neighbourhood or vicinity of the Application Land for the purposes
of recreational use of that land. … it seems to me that a court could
decide of any given person whether he or she lived in the neighbourhood
of Shooters Hill for the purpose of recreational use of that land just
as much as a court could decide whether any particular address was in
the neighbourhood of Southampton or Norham for the purposes of the restraint
in Stride v Martin. Legal certainty as to a class of persons does
not necessarily require that the whole class can be identified: it is
often enough that it can be said whether any particular person is a member
of the class: McPhail v Doulton [1971] AC 424."
It
appears to me that this approach is consistent with the views expressed
in the Opinion of Mr George Laurence QC in the case of land at Kilnhurst,
Todmorden (27th July 2001) and in the Opinion of Miss Sheila
Cameron QC in the case of land at Stroud’s Green, Testwood (20th
April 2001) . I am also fortified in this view by the fact that as long
ago as 1976, the Trap Grounds Amenity Preservation Society described this
area as "in the fullest and best sense of the term a neighbourhood".
If I am right in that view, then it is a fortiori that recreational
user of the scrubland has been by a significant number of the inhabitants
of that neighbourhood.
…have
indulged in lawful sports and pastimes… In my judgment, the informal
recreation enjoyed by local people on the scrubland has amounted to lawful
sports and pastimes as that expression was construed by the House of Lords
in the Sunningwell case. However, the City Council takes three
important points in objection to this conclusion.
First,
the City Council argues that many users of the scrubland were there to
observe the flora and fauna and that nature study is not a lawful sport
or pastime. If nature study were a lawful sport or pastime, argues the
City Council, every nature reserve would be registerable as a town or
village green. Now I agree that if somebody enters the Trap Grounds to
observe wildlife for professional or academic purposes, one would not
regard that person as indulging in sports or pastimes. However, if a person
has an amateur interest in wildlife, e.g. as a bird spotter, I do not
see how he can sensibly be distinguished from somebody who enters the
Trap Grounds for any other recreational purpose. Indulging a hobby of
observing wildlife is plainly a pastime. As for the threat to nature reserves,
it seems to me that the owners of nature reserves, like the owners of
any other open land, must protect themselves from the acquisition of recreational
rights by putting in place the appropriate safeguards, e.g. by erecting
signs prohibiting trespass or by controlling access.
Second,
the City Council argues that the evidence of recreational user of the
Trap Grounds amounts to user of defined routes for the purpose of passage
and not to general recreational user of the whole site. With regard to
Frog Lane, I consider that this is a good point. Frog Lane, according
to the evidence, has predominantly been used as a route for access to
and egress from the scrubland rather than for its own intrinsic recreational
qualities. This is consistent with its history as a road to the nunnery
and latterly to the breakers’ yard. Its very name suggests that use has
been as a right of way rather than as a town or village green. However,
I do not consider that this analysis holds good for the scrubland itself.
It is true that, at present, there is a main track which circles the scrubland.
However, this track appears to be a relatively recent creation, replacing
a main track which formerly led across the scrubland towards Aristotle
Lane, but was cut off by the construction of the new school. Further,
there is strong evidence that many users do not stay on the main track
but wander onto subsidiary tracks and enter the various glades and clearings
which are to be found within the scrubland. I do not consider that the
user of the scrubland by local people can realistically be characterised
as the exercise of a right of way along a defined route.
Third,
the City Council argue that the scrubland is now so overgrown that the
majority of it is inaccessible and that this in itself precludes registration
as a green. As noted above, my estimate is that about 25% of the total
area is reasonably accessible, the rest consisting of trees and scrub.
In my view, the question whether land has become a town or village green
cannot be determined by a mathematical assessment of the amount of the
land which is open to recreation. The popular concept of the village green
is no doubt the open grassy space in the centre of a village on which
the village cricket team plays their matches. Even this will usually not
be completely open, but will have some trees and perhaps a pond so that
at least part of the surface area of the green is not usable for recreation.
However, this is not necessarily the only type of land which can be subject
to recreational use. Where the recreational use is informal and consists
of activities such as walking, with or without dogs, children’s play,
exploring and watching wildlife, I do not see why much more densely vegetated
land should not be capable of being subject to recreational rights, either
by custom or prescription. In my view, it is necessary to look at the
words of the statutory definition and to ask whether the scrubland, considered
as a whole, is land which falls within that definition. In my view, the
evidence proves that the recreational use of the scrubland is, and has
been over the relevant twenty year period, sufficiently general and widespread,
by way of use not only of the main track but also of minor tracks, glades
and clearings, to amount to recreational use of the scrubland viewed as
a whole.
…as
of right… In my judgment, the evidence shows that recreational user
of the scrubland has been as of right throughout the relevant twenty year
period. The land has always been open to unrestricted pedestrian access.
In my view, the chain, head high bar, and bollards which were placed at
the entrance to Frog Lane in the 1980s can only be regarded as restrictions
on vehicular access. In no sense has the pedestrian recreational use described
by the witnesses been by force or against the opposition of the landowner.
Recreational use has been open and not secret or concealed. It is to be
noted that no witness was called by the city council to suggest that the
city council was unaware that the land was being used by local people
for recreation. Further, I consider that the overwhelming amount of the
recreational use of the scrubland has not been by permission of the landowner.
There is evidence that some organised nature study groups sought and obtained
permission to enter the Trap Grounds, but I regard the amount of permissive
use as de minimis. It can also be said that these groups were not
necessarily from the relevant neighbourhood or locality.
…and…continue
to do so… In my judgment recreational use of the scrubland is continuing.
14. Part
Registration
As
I read the judgment of Sullivan J in R (on the application of Alfred
McAlpine Homes Ltd) v Staffordshire CC 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. It seems to me that it would be absurd to construe
the 1965 Act and the Regulations made under it as requiring Miss Robinson
to make a fresh application to register the scrubland.
15. Conclusion
and Recommendation
I
conclude as follows.
I
do not consider that a case has been made out on the evidence to register
either the reed beds or Frog Lane east of the stream as a town green.
In the case of the reed beds there is no evidence of material recreational
use by local people because it has always been under water and inaccessible
for ordinary recreation, as the applicant herself accepts. In the case
of Frog Lane, I consider that the evidence shows use of Frog Lane as a
means of access to the scrubland but not as a recreational area in its
own right. It may well be that Frog Lane is subject to a public right
of way under Highways Act 1980 s 31, but that is outside the scope of
my Report.
However,
I consider that the applicant’s evidence has proved that the scrubland
has become a town green. The scrubland includes the 10 metre strip alongside
the railway that Miss Robinson applied to exclude from her application.
There is no evidence on which any distinction could properly be made between
that strip and the rest of the scrubland. When I refer to the scrubland,
I include all the application land west of the stream, including the site
of Frog Lane where it formerly ran west of the stream but which is now
indistinguishable from the rest of the scrubland and which has lain open
to the rest of the scrubland for more than twenty years.
Having
looked at the original of Miss Robinson’s application, the boundaries
of the application land are rather roughly coloured on her application
plan A, but I think that the land intended to be the subject matter of
the application is reasonably clear. I therefore recommend that the registration
authority should register the application land west of the western bank
of the stream as a new town green but should reject the application in
relation to the application land east of the stream and in relation to
the stream itself. Where the stream is culverted under Frog Lane, the
line of the western bank should be projected across the Lane. It is necessary
to give written reasons for the partial rejection, and I recommend that
these should be stated to be "the reasons set out in the Inspector’s Report
dated 23rd December 2002".
Vivian
Chapman
23rd
December 2002
Lincoln’s
Inn
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