opinion: a community and a county fail to find common ground

A common dispute is raging in the county of Suffolk. Last May the inhabitants of the town of Sudbury lost the right to recreation they had enjoyed since land was bestowed upon them by Richard de Clare in 1260. At issue is the fate of People's Park, land bought for the inhabitants of Sudbury with money from the sale of common land to the railroad in the 19th century.

In 1987, a century after People's Park had been placed in trust to preserve public rights of recreation, the Charity Commissioners changed the terms of the Sudbury Common Lands Charity, allowing the land to be sold to the Department of Health for pounds 850,000 as the site for a new hospital. In 1991, when the community learnt of the loss of its recreation land, David and Colin Steed filed an application to register People's Park as a town green under the Commons Registration Act 1965. Despite the pending application, work began on the hospital and the department spent pounds 500,000 more on building works.

When the county council refused the application the Steed brothers sought, and were granted, judicial review. They have, to date, invested about pounds 100,000 of their private funds to keep People's Park an open space for the use of the inhabitants of Sudbury. The case has divided the community because all agree Sudbury needs new hospital facilities. At one point, the Steeds offered to exchange their own land for People's Park so the community could have both its hospital and its open space. The offer was rejected.

In Regina vs Suffolk County Council, ex-parte Steed (5 May 1995), Mr Justice Carnwath upheld on judicial review the county council's refusal to register People's Park as a town green. According to the judgment, the time to register the land was before the statutory deadline of 30 July 1970. Having failed to register this ancient green before the deadline, all community rights have been lost. The decision has sent shock waves through those working to preserve village greens, even causing the Open Spaces Society to withdraw its guide Getting Greens Registered: A Guide to Law and Procedure for town and village greens. At issue is whether all community rights at common law pertaining to England's ancient greens were either registered or lost in July 1970.

The common law has always recognised the importance of local practice in determining land use. Under custom doctrine, community practices that are ancient (from time immemorial or 1189), continuous, certain and reasonable attain the status of lex loci, local common law, which can be altered only by Parliamentary Act. In the area of recreation, such community rights have included the right to play cricket and the right to dance around a maypole on the village green.

The Commons Registration Act of 1965 was meant to ensure certainty in local common law. Parliament recognised the need to protect the unwitting Londoner seeking a country retreat who would not be familiar with the community practices that give rise to community rights. A cut-off date for registration was necessary so that constant amendments did not replicate the uncertainty that existed at common law. After July 1970, a solicitor could ensure that a piece of land was unencumbered by such local rights by checking the Village Green Register. However, the Act did provide for the creation of new village greens upon proof of 20 years' use.

Under the 1965 Act, there were no restrictions on who could apply to register land as a village green through the county council, but neither was a duty created to ensure all appropriate lands were registered. In Sudbury, an application was made to register People's Park, but was withdrawn when the trustees objected. Mr Justice Carnwath says this failure to register has terminated the ancient rights of Sudbury's inhabitants for all time. In his view, land can only become registerable upon 20 years' use if there was no claim to registration at the time the act tolled.

If permitted to stand by the Court of Appeal, the judgment will prove fatal for all communities that failed to register their traditional recreation ground. This could occur either through ignorance of the significance of the Commons Registration Act or, as in the case of People's Park, the obstruction to registration by trustees or the local council.

In Sudbury the inhabitants' claims are strengthened by the existence of a registered trust scheme that specifically mentions the preservation of recreation rights. An argument could be made that the trustees failed in their duty to register People's Park under the Commons Registration Act and that the Charity Commissioners should not have ignored the 19th- century trust scheme in allowing the sale of the land to the Department of Health. On the other hand, if the land was not registerable in 1970, then the 20 years' recreational use attested to by local witnesses between 1970 and 1991 (when work began on the hospital) created a new village green. Such a new green is capable of registration under the 1965 Act.

It remains to be seen whether the trust element of the People's Park case means that the appeal case will not be as definitive for the status of other unregistered ancient greens as those fighting to preserve England's open spaces would hope. Ironically, although the Steeds are free under the Act to pursue the registration of People's Park and the judicial review action, as residents of the hamlet just adjacent to Sudbury they are not defined as beneficiaries of the Sudbury Common Lands Trust.

Recently, the health authority offered to settle all legal costs of the action if the Steeds would drop their appeal, but David Steed refused, saying: "Justice is not for sale." It remains to be seen if that is true for the ancient playgrounds of this "green and pleasant land".

Andrea Loux

The writer is lecturer in law at Lancaster University.