Oxfordshire County Council and Others, Ex Parte Sunningwell Parish Council, R v.

Factual and Procedural Background

A 10-acre piece of former glebe land located near the parish church in The Village had long been used by local inhabitants for informal recreation such as dog-walking, family games, kite-flying and seasonal tobogganing. In 1978 ownership passed from the rector to Company A. In 1994, Company A obtained planning permission to build two houses on the northern edge of the land. To stop the development, the Appellant applied to the Respondent, the registration authority under the Commons Registration Act 1965, to record the land as a village green pursuant to section 13 of that Act.

The Respondent convened a non-statutory inquiry before Attorney Chapman (Barrister) who recommended refusal. Relying on Court of Appeal authority (Regina v. Suffolk County Council, ex parte Steed), the Respondent concluded that the villagers’ use was not “as of right” because the users had not shown a belief that the right belonged exclusively to inhabitants of the locality.

Judicial-review proceedings were dismissed in the High Court and Court of Appeal, but leave to appeal was granted so that the House of Lords could reconsider the meaning of “as of right.”

Legal Issues Presented

1. What is the correct legal meaning of the phrase “as of right” in section 22(1)(c) of the Commons Registration Act 1965?
2. Does 20 years’ informal recreational use by local inhabitants, absent evidence of their subjective belief in a proprietary right, qualify land for registration as a village green under section 13 of the Act?
3. Are activities such as dog-walking and family play sufficient to constitute “lawful sports and pastimes” within the statutory definition?
4. Does occasional use by non-residents or the historical tolerance of the landowner defeat an application under section 22(1)(c)?

Arguments of the Parties

Appellant's Arguments

• The phrase “as of right” imports the traditional common-law test nec vi, nec clam, nec precario (without force, secrecy or permission) and not any requirement that users subjectively believe they hold an exclusive legal right.
• The Court of Appeal decision in Steed misinterprets “as of right” and should be overruled.
• Informal recreation—including dog-walking and children’s games—falls within “lawful sports and pastimes.”
• Predominant use by villagers satisfies section 22(1)(c) even if some members of the wider public also use the land.
• Long-standing tolerance by successive rectors and Company A does not negate use “as of right.”

Respondent's Arguments

• Following Steed, proof is required that users believed they enjoyed a right attached to them specifically as inhabitants of the locality; such belief was not demonstrated.
• The activities proved were mere “pastimes” and no evidence of organised “sport” was produced; the statute requires both.
• Use by persons from outside the village shows the land was enjoyed by the general public, defeating any claim based on a locality.
• The rector’s and Company A’s neighbourly tolerance shows the use was by permission and therefore not “as of right.”

Table of Precedents Cited

Court's Reasoning and Analysis

Delivering the leading opinion, Judge Hoffmann traced the historical lineage of prescription in English law. The phrase “as of right” has consistently meant use that is nec vi, nec clam, nec precario. It has never required proof of each user’s subjective belief in the existence of a legal right, nor any exclusivity of that belief to villagers alone. The Court of Appeal decision in Steed—followed by the Respondent—added an impermissible subjective element derived from a casual remark in Hue v. Whiteley. That approach was incompatible with both common-law prescription and the legislative scheme of the Commons Registration Act 1965, which was designed to secure open spaces through objective tests mirroring the earlier Prescription Act 1832 and Rights of Way Act 1932.

The House further held that:

• “Sports and pastimes” is a composite phrase; informal recreation such as dog-walking and children’s play plainly qualifies.
• Predominant, though not exclusive, use by inhabitants of the locality satisfies section 22(1)(c). Occasional presence of outsiders does not vitiate the claim.
• Tolerance or neighbourly forbearance by the landowner does not equate to permission “precario” and therefore does not defeat user “as of right.”

Holding and Implications

Appeal ALLOWED. The Respondent is directed to register the land as a village green.

Immediate Effect: The proposed residential development cannot proceed because encroachment on a registered village green would constitute a public nuisance under section 29 of the Commons Act 1876.

Broader Implications: The House of Lords authoritatively clarifies that “as of right” under the Commons Registration Act 1965 imports the objective nec vi, nec clam, nec precario test and does not include any requirement of users’ subjective belief. The decision disapproves Steed and simplifies future village-green applications by removing the need for evidence about the individual mental states of recreational users.