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Even the Coldest of Winters Cannot Freeze the Desire for Town and Village Greens

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Anyone can apply to register land as a town and village green under the Commons Act 2006, 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.

If land is registered as a town and village green, it usually means that the land cannot be developed and that it is a criminal offence to cause any damage to the green, or to undertake any act which interrupts its use or enjoyment as a place for exercise and recreation.  This has a major impact on the commercial value of the land, causing significant difficulties for landlords and developers.

Various cases in 2016 have shown that the scope of the legislation can be quite wide reaching as:

  • Tracks over land may trigger a right of registration as a town and village green, instead of the acquisition of a right of way, and walking or jogging on a defined track may constitute participation in a lawful sport or pastime.
  • Land may be registrable even if it is only used by people in the immediate vicinity.   There is no need for users to be spread throughout a locality.
  • A locality or neighbourhood need not be legally defined (or be in existence) for 20 years, as long as the use by inhabitants has lasted for the requisite period of 20 years.
  • Even if land has a statutorily defined purpose it may not be protected from registration if it is still possible for the statutory function to be exercised in tandem with use of the land as a town and village green.

Moving forward to the summer of 2018 and a Court of Appeal ruling caused further anxiety for landowners by limiting the number of cases where owners of land held for a statutory purpose may be able to rely on the statutory incompatibility test to prevent registration of their land as a town or village green.  The test consists of three central elements, satisfaction of which weighs in favour of incompatibility:

  • There must be specific statutory purposes or provisions relating to the land.
  • Parliament must have conferred on the landowner the powers to use the land for those specific statutory purposes, which are incompatible with the land's use as a town or village green.
  • Registration as a town or village green must clearly impede, restrict or prevent the exercise of the statutory powers or duties relating to the land.

It was argued in the cases in question that, as the land involved was subject to statutory rights or duties (educational and medical in nature, respectively), registration of the land as a town or village green was incompatible with the land’s statutory purpose.    The court, however, decided that these elements were not satisfied and the test of incompatibility was not met, meaning that the land in question could be registered.

Just in time for Christmas the land owners were granted permission to appeal by the Supreme Court.  We are therefore waiting to see what this year will hold.

Other updates last year included the conclusion that the registration of land as a town or village green would not criminalise the landowner's continued use of that land for commercial activities, nor render it a public nuisance because the landowner has the legal right to continue using its land as before (provided that the use is not incompatible with recreational use).   

Following case law in 2017 which indicated that the positioning and content of signs to prevent land being used “as of right” was important (signage needing to detail clearly the prohibited activities and the area of the prohibition), a 2018 case brought some comfort for landowners when it was held that the use of the land had not been “as of right” because of the erection of signs which had been seen by a significant number of local inhabitants, even on a 22-acre site when only three signs were erected.   It is therefore important to consider the positioning and content of signage, as it can be a useful tool to protect land from registration.

As always, developers and purchasers should continue to be aware of the potential risks and take extra care when considering potential sites. If you have any concerns about the registration of land as a town and village green, please contact the team at BakerLaw.

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

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