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The HL decision in the Oxford case provides some clarification as to when a
village green can be registered under s22(1) Commons Registration Act 1965.
The starting point, of course, is that any ‘town or village green’ is registerable if
it can be shown that the ‘inhabitants of any locality indulged in lawful sports and
pastimes as of right for not less than 20 years’.
As readers will know, that
provision has become increasingly important in recent years, as objectors to
development have found it a wonderful way of preventing (or at least delaying)
the implementation of a planning permission.
It is, however, a very complex area of law. As we noted previously, the HL decision is complex and not for the faint-hearted. The
key points that emerge are:
- there is no restriction in principle to the type of land that can be
registered (it is the manner and use of the land that matters);
- the period of use that has to be shown is 20 years up to the date of the
application (not the date of registration);
- the registration of land as a ‘village green’ is not a breach of human rights;
- use ‘as of right’ can be prevented by the landowner doing something (eg
erecting fencing or obvious signage) before the application for registration
is made.
For the future, it is important to note that there is a new Commons Bill before
Parliament, and that the Bill is developer-unfriendly. Under the Bill,
landowners would not be able to simply erect signage so as to prevent use
‘as of right’. They would have to take additional steps (eg fencing it off). Even
then, if an application for registration is made within two years of the ‘as of
right’ use ending (ie within two years of the land being fenced), then
registration can still take place. To make things worse (from the developer’s
point of view), the Bill will be retrospective; thus, if an application for
registration is made under the new Act within five years of the use ceasing,
then the land can still be registered as a village green.
What to do next? Clearly, the potential advent of the Commons Bill cannot
be ignored. It is clear that landowners must ‘interrupt’ the use of the land by
doing something incompatible with the local residents’ ‘rights’. This could
be done by fencing, or perhaps allowing a reasonable amount of agricultural
activity. Less confrontational would be to stick up carefully worded signs, or
take other action that implies a permission (as opposed to mere tolerance).
In practice, the trick will be for developers to act in such a way that they
assert their rights in such way that they do not precipitate an objection from
local residents.
Whether the Commons Bill will ever make the statute remains to be seen.
What is clear, however, is that some amending legislation is needed to
clarify an increasingly complex area of law.
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