R (on the application of Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and another) v Oxfordshire County Council

Town and village greens – Registration – User as of right – Defendant council resolving to register meadow as new town or village green under Commons Registration Act 1965 – Whether “no public right of way” notices precluding enjoyment of land “as of right” – Whether recreational usage required to be predominantly by inhabitants of neighbourhood – Application dismissed The first interested party applied to register a meadow as a new town or village green under the Commons Registration Act 1965, as amended by section 98 of the Countryside and Rights of Way Act 2000. The defendant council appointed a planning inspector, who held a public inquiry under section 111 of the Local Government Act 1972. Objections to registration were submitted by the secretary of state, which owned the meadow, the area health authority and two other interested parties on the ground that it would prevent a planned sale of the land for development. The inspector reported that the land met the requirements for registration under section 22(1A) of the 1965 Act, namely that it had been used for more than 20 years by local or neighbouring inhabitants for lawful sports and pastimes as of right and continued to be so used. The defendants resolved to register the meadow as a green.The claimants applied for judicial review of that decision. They contended that the inhabitants had not enjoyed 20 years’ usage “as of right” since the “No Public Right of Way” signs that the defendants had erected on the land between January and March 1989 rendered the use of the meadow contentious, so that an uninterrupted 20-year period of use could not be shown as at the date of the application.The issues for the court were,inter alia, whether: (i) the inspector had erred in law in finding that the signs on the land referred only to paths and did not render contentious public use of the land for recreational purposes; and (ii) section 22(1A) implied that to qualify for recreational usage the use of the land had to be predominantly by the inhabitants of the relevant neighbourhood.Held: The application was dismissed.(1) In the instant case, the facts overwhelmingly pointed to the conclusion that the notices did not render the recreational user contentious. They were clearly directed to the paths nearby and there was no reason why they should be taken objectively to refer to recreational use of the meadow as a whole. If the defendants had wanted to render contentious the user of the entire meadow, they could and should have done so by using an appropriately worded notice. The form of notice used was a classic response to an application to establish further public footpaths, bringing into play the evincing of a contrary intention for the purposes of section 31(1) and (3) of the Highways Act 1980: Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95 and R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11; [2010] EG 116 (CS) considered.(2) The fundamental question was what the notices conveyed to the user. The nature and content of the notices, and their effect, had to be examined in context. If the user knew, or ought to have known, that the owner was objecting to and contesting his use of the land, the notices were effective to render it contentious; absence of actual knowledge was no answer if the reasonable user standing in the position of the actual user, and with his knowledge, would have so known. Evidence of the response to the notices by the actual users was relevant to the question of actual knowledge and might also be relevant with regard to the putative knowledge of the reasonable user. Since the issue turned on what the user appreciated or should have appreciated from the notices, it followed that evidence as to what the owner subjectively intended to achieve by them was generally irrelevant. It might, however, be relevant to whether the meaning claimed by the owner was unrealistic or implausible in the sense that no owner could have contemplated that effect. In some cases, that might reinforce or explain the message conveyed by a notice, depending on the extent to which that intent was published to the relevant users.(3) The predominance test in section 22 of the 1965 Act had not been carried forward into section 22(1A), which was clear in its terms: provided that a significant number of the inhabitants of the locality or neighbourhood were among the users, it did not matter that many or even most came from elsewhere: Pepper (Inspector of Taxes) v Hart [1993] AC 593 applied; R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 considered.Charles George QC and Philip Petchey (instructed by Clarkeslegal LLP) appeared for the claimants; Charles Mynors (instructed by the legal department of Oxfordshire County Council) appeared for the defendants; Ross Crail (instructed by Public Law Solicitors, of Birmingham) appeared for the first interested party; the second and third interested parties appeared in person.Eileen O’Grady, barrister