The Sanctity of the Village Green:
Preserving Lord Denning's Pastoral Vision*

Steve Greenfield and Guy Osbomt

"Village cricket is the oldest team-sport to have survived and adapted, still just
about recognisable despite rolled wickets, overarm bowling, whites, pads, and
a host of complex rules, It is this sense of a continuous tradition, of ancient
links, and English pastoral that tugs at the heart of so many devotees today, "1

The image of village cricket, the quintessential English game, conjures up images
of peace, harmony and tranquillity. The community spirit built up over perhaps more
than one hundred years is enshrined and embodied in the sporting activities that take
place upon the Village Green, However, behind the idyllic facade may lie more serious
neighbourly disputes between those who see the game of cricket as the focal point
of village life and a tradition to be preserved at all costs, and those, perhaps newcomers
to what may be a closed enclave, who begrudge its very existence, Such a dichotomy
most recently appeared at Slough County Court when some of the residents of Jordans
(a small village near Beaconsfield) sought an order enforcing Jordans Cricket Club
to erect protective netting to shield their homes or to relinquish the right to play, 2
Such cases have previously been considered by both the House of Lords3 and the
Court of Appeal4 and have centred upon an attempt to balance the rights of an
individual to enjoy the privacy and seclusion of his or her home and the public interest
in protecting the environment and by preserving our playing fields in the face of

* The title owes a debt to Klinck "This other Eden': Lord Denning's Pastoral vision", (1994) O.l.L.S.,
Volume 14 No. I.
t Steve Greenfield and Guy Osborn, Senior Lecturers, Centre for the Study of Law, Society and Popular
Culture, University of Westminster School of Law.
I. R. Holt, Sport and the British (Oxford 1990). Max Sutton, noted in Klinck at 27, defines pastoral
vision as referring to ... a picture, literally an "Idyll", that represents at least the possibility of a good
rural life. While the vision may express individual illumination, more typically it focuses upon some state
of communal experience, showing people as lovers, friends, families, and neighbours, who tend animals
and the land and yet find time to celebrate what matters most to them ... ".
2. Lacey & Lacey v. Parker & Bingle, County Court transcript, 12th May, 1994.
3. Bolton v. Stone [1951] I All E.R. 1078.
4. Millerv. Jackson [1977] All E.R. 338.

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mounting development, and by enabling our youth to enjoy all the benefits of outdoor
games such as cricket and football."5

Whilst the case of Lacey is of little value as a precedent it attracted much media
attention and showed that the prescient approach of Lord Denning M.R., whilst
dissenting in Miller, to be both influential and at one with the public's desire to preserve
a little piece of a fast disappearing England. 6

This article approaches the trilogy of cricket cases from two distinct angles. First,
we examine the nature of the dispute and more precisely the conflict between the
established order of the village and the "newcomer". Secondly, we' analyse the
application of settled legal principles to the facts and attempt to offer some conclusions
as to the success of the courts in resolving a dichotomy imbued with a long cultural
and social lineage.

The nature of the disputes
In all three cases the problems arose after land adjacent to the cricket grounds was
developed for housing. In Bolton, cricket had been played on the ground of Cheetham
Cricket Club since 1864 while the housing development on land, which had been
previously owned by the cricket club, finished in 1910. An action was brought by
a Miss Stone in both negligence and nuisance against the committee of the Cricket
Club when she was struck by a cricket ball whilst standing on the highway adjacent
to the ground. It was estimated at trial that over a period of some thirty years, since
the development had been completed, a ball had been struck onto the highway on
some six occasions. The plaintiff was hit by a straight drive which was estimated
to have travelled some 100 yards to the point where Miss Stone was struck. The
ball had pased over a 7 feet high fence which amounted to a 17 feet high barrier
when the slope of the ground was taken into account. 7

In Miller cricket had been played at Lintz, in County Durham, since 1905. In 1972
the plaintiffs bought a house in a recently built housing estate adjoining the ground
where" ... four years ago was a field where cattle grazed."9 Lord Denning M.R.
felt that it was the development itself that had caused the problem:

5. Ibid p.345 per Lord Denning M.R.
6. Judge Hague found the huge media attention bewildering noting that" ... although this is a local
dispute, it has nevertheless attracted a remarkable amount of attention from the national media. Quite
why, it is difficult to know. Perhaps the subject matter touches the lives and stirs the emotions of many
people. Perhaps it is just an entertaining diversion from the reports of tragedy, crisis and gloom which
usually fill the newspapers. Perhaps it gives journalists and headline writers the opportunity to sharpen
up (and mix) their cricketing and legal metaphors and puns." County Court transcript, 'Supra. n.2' , pp. 1-2.
as will be seen throughout this piece, the judiciary are themselves not beyond such mixed metaphors
and forced puns.
7. The name of the batsman is not recorded but this was an exceptionally powerful stroke. It was described
in evidence by two senior members of the club as "altogether exceptional to anything previously seen
on the ground".
8. Miller Supra. n.4 p.340 per Lord Denning M.R. He goes on to add that "the animals did not mind
the cricket. But now this adjoining field has been turned into a housing estate."

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"I must say that I am surprised that the developers of the housing estate were
allowed to build the houses so close to the cricket ground. No doubt they wanted
to make the most of their site and put up as many houses as they could for their
own profit. The planning authorities ought not to have allowed it. The houses
ought to have been sited so as not to interfere with the cricket.' '9

The relationship between the club and the plaintiffs was an uneasy one; initially
several balls landed in the plaintiffs' garden and damaged tiles and brickwork which
led to representations being made to the club. This resulted in the erection of a chain
link fence that brought the total height of the plaintiffs' fence to over 14 feet. The
club also asked batsmen to try and hit balls for four rather than six so as to avoid
the possibility of further damage to the plaintiffs' property. Notwithstanding these
precautions in the 1975 season 5 balls landed in the plaintiffs' garden, one of which
narrowly avoided breaking a window of the room in which their son was sitting.
Accordingly the family felt unable to remain in the house whilst the cricket was taking
place and consequently they sought a remedy against the cricket club based upon
negligence and nuisance.

In Lacey the basis of the plaintiffs' claim was that the intrusion of cricket balls
onto their property was dangerous and as such was an unlawful interference with
their property. As long ago as 1921 the management committee of Jordans Village
Limited 10 had anticipated the land being used for recreational purposes: "[ t] he
layout provides for a village green of three acres which will be laid out for sports
and pastimes of various kinds." II

The cricket club had begun playing matches on this ground from the early 1920s
and at the time of the case there were 49 playing members of mixed ability, most
of whom who had longstanding connections with the club and the community. In
February 1988 the plaintiffs completed the purchase of their cottage, which faced
the Green and which was at its most acute 55.5 yards from the nearest pitch. Judge
Hague noted that it is the very nature of the game to attempt to hit the ball towards
or over the boundary and that given the proximity of the pitch to the adjoining cottages
some interference with property was inevitable. The actual propensity to interference
varied between the different houses in different positions around the cricket square
and the description of the issues showed a shrewd understanding of cricketing detail
by the Judge:

"There is not much problem from a drive back over the bowler's head, or in
the direction of long off or long on, or from (a) fine leg glance or a delicate
late cut, or perhaps more elegantly (if the Cricket club will forgive me for saying

9. Ibid. at p.341.
10. The village had long associations with the Quaker movement. In 1920 some members of the movement
bought 102 acres of land in the village and transferred part of that land (the Green) to Jordans Village
Limited, a society created for the express purpose of creating a village community.
11. Lacey, Supra. n.2, at p.2.

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so) a snick through the slips or a miss by the wicketkeeper ... the evidence
was that it was leg side hits . . . (to deep mid wicket or deep cover point) . . .
which tended to be the hardest and the most likely to be lofted, whether by a
genuine hook or pull, or by the traditional one-foot-down-the-wicket cross bat
slog into what is sometimes called' 'cow shot corner". A hard slog behind the
square can certainly be played, but in yillage cricket it is a good deal more rare.
Most shots going in that direction are the result of either nudges or glances,
or of hooks and pulls which have been mis-hit or mis-timed, and as a result
have less force ... Even in first class cricket sixes over cover point or extra
cover are relatively rare.12

It was not disputed that the position of the Lacey's cottage, which Judge Hague
deemed to be at backward square leg to the right handed batsman, was one of the
areas most likely to be in danger during a cricket match, although not in the "cow
shot corner" that the Judge felt most vulnerable. 13 There was evidence of actual
damage to the houses surrounding the Green but there was no evidence of personal
injury having been occasioned; since 1967 there had been only two incidents involving
broken windows, both of which had been quickly replaced at the expense of the club.
As regards the plaintiffs cottage the Judge found that at most the ball came into their
garden on 5 or 6 times in a season, that these had primarily been at ground level
and that there was no evidence of any damage being done to Linden Cottage in the
past. As such, whilst there was a degree of risk such a risk was a very small one.

In addition, the club had taken a series of measures designed to further minimise
that risk by instructing players not to play shots in that area, asking opposing captains
to not put on bowlers who were likely to be hit in that direction and adopting a local
rule that any ball hit into that portion of the ground on the full toss would count as
4 and not 6.14 The club'had also looked into the possibility of moving their ground
but this would have proved impracticable due to lack of suitable alternatives in the
village. IS

All the cases exhibit the common ground of having to balance the interests of the
well established and traditional against those of "newcomers" with perhaps less
conservative ideals. However a prime difference is that in Bolton the plaintiff suffered
physical injury whilst in both Miller and Lacey although there were allegations of

12. Ibid. at p.8
13. The Judge's analysis went on to show his wherewithal as regards the current state of cricket when
he went on to consider the potential vulnerability if a left handed batsman were at the crease which he
felt was increased: ••[Of course there are also left'handed batsmen who hit the ball hard. Mr Brian Lara
recently reminded us of that in Antigua, and continues to remind us at Edgbaston if any reminder were
needed]." Ibid, at p,12.
14. After the conclusion of the case the cricket club amended its rules so that any batsman hitting the
ball into the garden was dismissed!
15. One possible alternative, Chalky Fields, needed levelling and redeveloping and the club would not
have been able to play cricket for around three years whilst this work was done.

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property damage and possible fear of injury no actual physical injury had been suffered.
In both the latter cases aspersions were cast upon the soundness of the plaintiffs'
fears and the veracity of their complaints. An issue that is referred to throughout
both Miller and Lacey is the relationship between the complainants, the cricket club
and the other villagers; judicial sympathy for such complaints is strongly balanced
by support for the established community traditions. the concept of the complainant
as an "outsider" to the village and the social affairs of the community is further
outlined by Fraser:

"Into this neighbourhood, this world of shared values and interpretations enters
'the newcomer';, the ideal and evil Other, threatening the peace and harmony,
the very existence of the community. The newcomer is foreign, other, dangerous.
Cricket is tradition, he is new; the villagers belong to the established practices
of their cricket, he comes, inserts himself, violates their peace, threatens their
very existence." 16

The problem in all three cases was for the judges to apply the established legal
principles of nuisance and negligence to what is essentially a social and cultural dispute.
In Lacey other villagers submitted evidence in support of the cricket club and these
views were held by the Judge to be "Plain and sober and simple notions among the
English people". In Miller Lord Denning M.R. explicitly recognised this area of
the conflict and the position of the newcomer who seeks to upset the existing order
of traditional village life and was cautious about utilising legal provisions to upset
an existing status quo that had stood the test of time.

The application of negligence and nuisance
In Bolton the claim was based squarely in negligence and the High Court's dismissal
of the claim had been reversed by the Court of Appeal. 17 The House of Lords took
a unanimous view that the respondent could not succeed in negligence because of
the infrequency of cricket balls being hit onto the highway. Accordingly the possibility
of a pedestrian being injured would not be anticipated by the reasonable man and
thus no liability existed:

"it is not enough that the event should be such as can reasonably be foreseen.
The further result that injury is likely to follow must also be such as a reasonable
man would contemplate before he can be convicted of actionable negligence.

16. Fraser, The Man in the White is Always Right (Sydney, 1993), p.ZZ: See further McArdle, "Governing
Bodies: Sport, the body and R v. Brown ", Manchester Metropolitan University Working Paper in Law
and Popular Culture, Series I No. I. Referring to the Court of Appeal's approach in Miller, Fraser comments:
"Consider the romantic image of merrie England we are being presented with here. . . A sporting tradition
which has existed on that pitch since Edwardian times is now under threat from a 'newcomer' , an invader
whose selfishness could destroy the fabric of village life and lead to the arrival of new unpleasantries
- a factory or housing development which surely ought not to be allowed to blight this pastoral scene," at p.Z3.
17. The respondent had sued in nuisance also but this had been dismissed at first instance.

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Nor is the remote possibility of injury occurring enough. There must be sufficient
probability to lead a reasonable man to anticipate it. The existence of some risk is
an ordinary incident of life, even when all due care has been, as it must be, taken." 18

The upshot of the House of Lords' decision was that the standard of care to be
imposed was not an absolute one but was to be based on a series of factors. Whilst
these factors undoubtedly include reasonable foreseeability this of itself was not to
be the sole litmus test - issues such as the likelihood of harm occurring and the purpose
of the act were important factors that also had to enter the evaluative equation. 19 The
point is, of course, that the entire equation is a fine balancing act and as Lord Reid
observed this case was "not far from the borderline".

In Miller the plaintiffs brought an action against the club claiming damages for
negligence and nuisance and sought an injunction to restrain the club from playing
cricket on the ground. At first instance such an injunction was granted and the
defendants appealed. Both Geoffrey Lane L.J. and Cumming-Bruce L.J. found that
the club were liable in negligence as there was clearly a foreseeable risk that the
plaintiffs would be injured by stray cricket balls and that it would be unreasonable
to expect the plaintiffs to remain behind shutters or to leave their house whilst the
cricket was on. Lord Denning M.R. dissented on this point on the grounds that the
use of the ground by the club was eminently reasonable:

"To my mind it is a most reasonable use. Just consider the circumstances. For
over 70 years the game of cricket has been played on this ground to the great
benefit of the community as a whole, and to the injury of none. "20

This is effectively the same approach demonstrated in Bolton, in that Lord Denning
M.R. is once again weighIng up the social utility or purpose of the act in question
in deciding whether the Cricket Club have fallen below the required standard of care
- however the attempt of Lord Denning M.R. to preserve a little piece of British
cultural history failed on this line. The crux of the case as far as the plaintiffs were
concerned was essentially the issue of nuisance as the relief which they required was
unavailable in an action for negligence.21 Here the judicial response was to refuse
an injunction to prevent cricket being played, despite a finding that the club's activities
amounted to an actionable nuisance, on the basis that the status quo should be preserved
after balancing the interests of the individuals with the interest of the public at large:

18. Supra. n.3. per Lord Porter at 1081.
19. See further on this economic analysis of the law of tort, Posner (1972) 1 Journal of Legal Studies
29 and the approach of Hand J. in United States v. Carroll Towing Co. fnc. 159 F. 2d 19 (1947).
20. Miller. Supra. n.4 at 344.
21. As Lord Denning M.R. observed: "The books are full of cases where an injunction has been granted
to restrain the continuance of a nuisance. But here is no case, so far as I know, where it has been granted
so as to stop a man being negligent." ibid. at 343-g.

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THE SANCTITY OF THE VILLAGE GREEN

"There is a contest here between the interest of the public at large and the interest
of a private individual. The public interest lies in protecting the environment
by preserving our playing fields in the face of mounting development, and by
enabling our youth to enjoy all the benefits of outdoor games, such as cricket
and football. The private interest lies in securing the privacy of his home and
garden without intrusion or interference by anyone. .. I am of opinion that
the public interest should prevail over the private interest.' '22

The good folk of Lintz were therefore allowed to continue to play their cricket
on the Village Green, to continue the tradition started by their forefathers and to
enable the traditions of the village to pass down to their own children in due course.
The outsider or newcomer was once again given little sympathy when the judges
evaluated whether or not to grant the order requested.

Lord Denning M.R.'s general approach is ably demonstrated by Lacey, where the
plaintiffs argued that the intrusion of cricket balls onto their property amounted to
an unreasonable interference with the use of their land. They sought an order that
the cricket club erect nets, 25 feet high, in front of their cottage before each game
and an injunction to prevent cricket being played on the Village Green if the protective
nets were not erected. Although both nuisance and negligence were pleaded, it was
agreed that the plaintiffs could not succeed in negligence if they failed in nuisance.

Judge Hague was not prepared to support Lord Denning M.R.'s radical view of
Sturges v. Bridgeman23 expressed in Miller and followed the majority of the Court
of Appeal on this point.24 It was therefore no defence that the Laceys' had "come
to the nuisance"; he was nevertheless able to distinguish Miller on the basis that the
risk of injury in the case before him was minimal:

"That makes Miller v. Jackson plainly distinguishable for, as I read it, it was
the serious risk in that case that led the majority to hold that there as an actionable
nuisance and there is no such serious risk in this case. "25

As there was no actionable nuisance there was no question as to the granting of an
injunction, however, Judge Hague made a strong case, based on the principles laid
out in Miller, that this would have been refused even had a nuisance been demonstrated
to exist,26 This refusal was based on the discretion that the court exercises when
considering whether or not to grant an injunction. The points that Judge Hague thought
weighed against the granting of an injunction were; the inappropriateness of the nets,
the fact that there was no real hardship to the plaintiffs, the offer of the cricket club

22. Ibid. at 345.
23. (1879) 11 Ch. D. 852.
24. Lord Denning M.R. argued persuasively for a review of Sturges. "The building of a house does
not convert the playing of cricket into a nuisance when it was not so before". Miller, Supra. n.4 at 344.
25. Supra. n.2 at p.14.

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to erect window grills, that the plaintiffs had come to the nuisance and that the injunction
would be damage to not only the cricket club but the interests of the village as a
whole thus returning to the approach that Lord Denning M.R. effectively outlined
in Miller.

Conclusion
Lord Denning M.R.'s original analysis is interesting for a number of reasons; not

least because of the undercurrent of protecting a little piece of England and a cultural
force that deters the folk of the village from turning to more destructive pastimes.
The game of cricket is seen both as a microcosm of a utopian society and a clarion
call for a return to the values that such a society espouses. The threat to this is embodied
in the notion of' 'the foreigner", "the outsider", who has come to invade the sacred
social text that is village cricket:

"The new, the foreign, the materialistic, all these nefarious elements threaten
truth and community. They threaten the community like a virus for like a virus
they are foreign. Unlike even a virus, however, the newcomer is not natural
- he threatens cricket ... Its values, fair play, gentlemanly conduct, "the spirit
of the game", are not only natural, they are public values, constitutive of the
social text of what it means to be English. In the final analysis, what the newcomer
has done "just isn't cricket" ',27

Whilst the judgment in Lacey is not as explicit on these themes the intimation of
protecting the village interest is apparent. The evidence of others villagers is considered
and the balancing of the private and public interest again weighs heavily in support
of the collective against the individual. What Lacey does demonstrate is that the
dichotomy between the established order and the newcomer is both an ongoing and
a serious problem. To date the cases demonstrate that the judges will moderate the
protection of individual property rights and uphold the collective rights of the majority
to continue with established community activities and exercise their judgment with
the avowed intention of preserving their own vision of what constitutes life in the
community.

26. The main reasons given for the finding that no actionable nuisance existed were: "I. The playing
of cricket on the village green is a reasonable and long established use. 2. The risk of serious injury is
minimal and the interference with Mr and Mrs Lacey's enjoyment of their property is not undue. 3. Such
interference is the consequence of the character of the neighbourhood. ie the proximity of the village
green. 4. Whether the interference is unreasonable must be tested by the standards of average people
and not the susceptibilities of Mr and Mrs Lacey. A]though no means conclusive. the willing acceptance
by others of comparable interference confirms my view that the interference in this case is not unreasonable."
(Lacey Supra n.2.
27. Fraser. supra n. ]6. p.23.

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