Are town and village greens cherished community spaces? Or malicious and vexatious pre-emptors of vital development? This is the first of two articles on town and village greens: this piece considers case law; the next will consider proposals for reform. At common law, a green is equivalent to a special local law. The green derives from a custom which is ancient, certain, reasonable and continuous. Specifically, the custom has to be used for the residents of a particular locality, not for the world at large.
The common law rights were overlaid by a statutory framework in the Commons Registration Act 1965. The act allowed those using the green to register their usage with the county council. The 1965 act was modernised by the Commons Act 2006, which is being brought into force over a number of years. While the 2006 act is being implemented, transitional provisions allow authorities to register greens which meet the criteria set out in section 15 of the 2006 act. Once registered as a green, the land cannot be developed as a result of the Inclosure Act 1857 and the Commons Act 1876. Breach of these acts is an offence.
Section 15 allows anyone to apply to register land as a town or village green where ‘a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years’. Section 15 (and the equivalent section 22 of the 1965 act) have provided a seam of cases for lawyers to mine. Section 15 has also been used to stop developments. Government figures show that applications for greens have risen from a historical rate of around 60 a year to nearly 200 a year.
The land does not need to be a traditional square of grass. It can be a tidal part of a beach fully covered by the sea for 42% of the day (R (Newhaven Port & Properties Ltd) v East Sussex County Council  EWHC (Admin)), but if the land is so overgrown that it is inaccessible, the case will fail (R (Cheltenham Builders Ltd) v South Gloucestershire Council EWHC 2803 (Admin)).
A ‘significant number’ of inhabitants is not necessarily a substantial or considerable number. This is not the sort of judicial insight that clients find helpful. The relevant point is that the land is used by the inhabitants in general, rather than by a few individuals (R (on the application of McAlpine Homes) v Staffordshire County Council , EWHC). Use by some outsiders is not fatal (R v Oxfordshire County Council ex parte Sunningwell Parish Council  UKHL 28).
The inhabitants must be of a specific and recognisable locality: a legally recognised administrative district is such a locality (Paddico (267) Ltd v Kirklees Metropolitan Council and others  EWHC 1606 (Ch)); two parishes are not ‘a’ locality. A ‘neighbourhood within a locality’ is thought by Lord Hoffmann to have been drafted with deliberate imprecision. This suggests that whether an area is a ‘neighbourhood’ will be a question of fact and degree in each case. There is useful guidance in Leeds Group plc v Leeds City Council  EWHC 810 (Ch). ‘Sports and pastimes’ are to be considered as a single composite class. There is no need to establish that at least one sport and pastime take place (Oxfordshire). Dog-walking is sufficient use.
‘As of right’ means without force, secrecy or permission. From Oxfordshire, we learn that the subjective state of mind of the users, whether or not they have permission, is not relevant. However, if permission has been granted by statute, that will defeat the application (R (Barkas) v North Yorkshire County Council and Scarborough Council  EWHC 3653).
In other cases permission can be harder to demonstrate. In the case of R (on the application of Beresford) v City of Sunderland  UKHL 60, the House of Lords felt that permission required some positive act by the landowner. The positive act serves to distinguish the permission from acquiescence, or mere passive toleration. An occasional beer festival and funfair on part of the land, for which an entry charge was levied, demonstrated the landowner’s exclusive use of part of the land. It was held that the use of the whole of the land at other times was with the landowner’s consent: R (Mann) v Somerset County Council  EWHC B14.
It can be hard for landowners to deny permission without inflaming local sentiment. The test propounded in Betterment Properties (Weymouth) Ltd v Dorset County Council and another  EWHC 3045 (Ch) suggested that a reasonable person should know that the ‘owner of the land actually objects and will back his objections either by physical obstruction or legal action… when the owner of the land is doing everything, consistent with his means and proportionately to the user, to contest and endeavour to interrupt the user’. However, clients may be reluctant to repair fences, and re-erect notice boards advising that use is by permission, if they know that one or two militant users of the land will simply remove the fence or the notice.
A further challenge for developers comes in the case of a use which has ended in the recent past. Section 15 allows applications to be made if the use either:The government’s assumption appears to be that it will be the long-standing landowner who develops, and so the use will be something of which the landowner is aware. This is not necessarily the case in practice, particularly where land is bought from an insolvent owner for development. In some cases, such as at Saham Toney in Norfolk, houses were built, bought and lived in before the application was made.
- is continuing at the time of the application (section 15 (2)); or
- ceased after 6 April 2007 but less than two years before the applications was made (section 15(3)); or
- ceased before 6 April 2007 and the application was made within five years of the cessation of use (section 15(4)).
The Growth and Infrastructure bill contains provisions to prevent applications for a green in certain circumstances. These will be considered in the next article.
Suzanne Gill, Pinsent Masons