R v Oxfordshire CC, ex parte Sunningwell PC

R v Oxfordshire CC, ex parte Sunningwell PC [2000] 1 AC 335; [1999] 3 All ER 385; [1999] 3 WLR 160; [1999] LGR 651; 79 P & CR 199; [1999] 2 EGLR 94; [1999] 29 LS Gaz R 29; [1999] NLJR 1038; [1999] 31 EG 85; [1999] EGCS 91

USERS OF LAND AS OF RIGHT, PRESCRIPTION, EXCLUSIVE ENJOYMENT OF LAND, VILLAGE GREEN, NEC VI, NEC CLAM, NEC PRECARIO

Facts

A glebe in Sunningwell, Oxfordshire, was an open space, used by the local people for outdoor activities. In 1978, it was transferred to the Oxford Dioscesan Board of Finance. In 1994, the Board obtained a planning permission to built two houses on the northern boundary of the glebe. The local people opposed this. As a result, Sunningwell Parish Council (SPC) applied to Oxfordshire County Council (OCC) to register the glebe as village green under s. 13 Commons Registration Act 1965, so that the proposed development is prevented under s. 29 Commons Act 1876.

The SPC relied on the definition of a village green under s. 22(1)(b) Commons Registration Act 1965 – land which the inhabitants of any locality have used for sports and pastimes for not less than 20 years. The OCC rejected the SPC’s application. The OCC relied on the decision in R v SuffolkCounty Council, ex p Steed (1996) 75 P & CR 102, in which it was held that user of land ‘as of right’ meant that the right had to be exercised in the belief that it was enjoyed only by the inhabitants of the local village. All of the local Sunningwell people said that they thought they had the right to use the glebe, but it was not confined to them exclusively.

Issue

Did the use of the glebe ‘as of right’ have to have been carried out in the belief that the inhabitants of Sunningwell had the right to enjoy it to the exclusion of all other people?

Held

The decision was in favour of SPC.

(1) R v Suffolk County Council, ex p Steed (1996) 75 P & CR 102 was overruled. The users of land cannot be discounted merely because many of them were subjectively indifferent to the existence of the right over a period of time. The common law doctrine of nec vi, nec clam, nec precario was applied.

(2) Therefore, OCC could not refuse the SPC application on grounds that the villagers did not believe that the right to use the glebe was confined to them only.