It’s not often you get the chance to thank a judge who has pronounced in your favour at least three times. I had that opportunity recently.
The Institute of Public Rights of Way and Access Management (IPROW) invited Lord (Lennie) Hoffmann to address its annual update, with George Laurence QC who has also done so much for public paths and access.
George came to England from South Africa 50 years ago last September (see here). Lennie also came from South Africa, 15 years earlier, and was a Rhodes Scholar at Oxford. After completing his two-year law degree, he stayed on for an extra one-year course for the Bachelor of Civil Law. In 1961 he was elected a teaching fellow of University College and, as he told us, in 1968 two notable Rhodes Scholars arrived there: one was Bill Clinton from Arkansas, and the other was George Laurence from South Africa. Lennie was George’s tutor for his Oxford law degrees.
Lennie told us about a rights-of-way dispute in Exeter summer assizes in 1972, in which he was involved. The inhabitants of Beesands in south Devon claimed they had the right to drive vehicles along the public footpath as far as the hamlet of Beesands Cellars, having done so for more than 20 years. Lennie represented the local council on behalf of the residents, and the judge found in his favour, that registration of a path on the map as a footpath did not mean there could not be other rights over the same way.
His next encounter with rights-of-way law was the Hood case in 1974, to which he was introduced by Louise Treves (later Louise Braham) who had been in his 1957 BCL class and was secretary of the British Horse Society. In the court of appeal, before Lord Denning, he saved a road used as a public path at Herne Bay in Kent from being downgraded to a footpath. Two years later he took silk after which, when Louise needed a junior for advice or litigation she went to George. Lennie liked to think that George’s career as ‘the greatest living expert in rights of way and open spaces’ was launched by his introduction to Louise when he was Lennie’s pupil.
Trio of cases
However, the trio of cases in which Lennie made such a difference to us came much later. We need to fast forward a quarter of a century, during which George and Lennie’s careers diverged with Lennie becoming a judge and George a QC. In 1999 Lennie presided in the House of Lords on the Sunningwell village green case, at which George appeared for Sunningwell Parish Council.
The parish applied to Oxfordshire County Council to register about ten acres next to the church as a village green on the grounds that local people had used the land for informal recreation, without permission or challenge, for more than 20 years. The council was forced to refuse the application because of a court of appeal decision about a village green application in Sudbury, Suffolk.
There it was held that local people had to prove that, in playing games on land, they understood that they were doing so as a privilege exercisable by the inhabitants and no one else. This ruling could only be reversed by the House of Lords. As Lennie said: ‘This was an absurd requirement: people don’t have those kind of thoughts. They play games on the land, at best because they think they are entitled to do and usually just because they have seen other people doing so. They don’t usually have thoughts about how widely the right to do so may extend. The effect of such a rule was to make it virtually impossible to register land as a village green.’
Lennie reversed this decision, opining that the users did not have to believe that they were exercising a legal right. You can read the opinions (ie the judgment) here.
Seven years later, Lennie ruled on the Trap Grounds case, where George appeared for Oxfordshire County Council defending its decision to register as a green this piece of rough, wooded land next to Port Meadow. His opponent was the landowner, Oxford City Council, which wanted to develop the site. This case, and Lennie’s judgment, was another stride forward for village greens.
Here he found, among other things, that any piece of land which had been used as of right for lawful sports and pastimes for 20 years was eligible to be registered as a green, regardless of the quantity of grass or the proximity to a town or village. There were many other elements to the case which were determined in favour of the applicants, and the judgment influenced the content of the Commons Act 2006 which was then passing through parliament.
In the third case George appeared for the Ramblers in the milestone Godmanchester case which, again, needed to go to the House of Lords to reverse the judgments of the lower courts. Here Lennie and four other law lords, reversing previous damaging law on rights of way and building on Lennie’s previous rulings, confirmed that a landowner’s intention not to dedicate a public path must be made clear to the public.
All three judgments opened the doors to claiming paths and village greens—although the government then meanly slammed the door on the latter, with the Growth and Infrastructure Act 2013. This prevents people from applying to register greens in England if the land is threatened with development, a bitter blow.
Lennie concluded ‘In April 2009, when I was hearing my last case before I retired, I got a message from George saying that when the argument ended and I had said the ritual words “Their Lordships will in due course advise their opinions to the House.”, he wanted to say some valedictory words. I said no; it was not customary in the House of Lords to mark the last appearance of a Law Lord in this way. In my experience, it had never been done. George said: “I am coming all the same”. So he sat at the back of the room until argument was finished and then went to the lectern and made some complimentary remarks, for which I thanked him. It was a highly characteristic gesture, both in its disregard for convention and its generosity’.
Ten years later I took the opportunity, at the end of Lennie’s talk to the IPROW gathering, publicly to thank him for all he had done for our movement with his fine analysis and judgments. It was splendid to be able to do so.