Those opposed to development have found that registering land as a village green (provided it has been used for recreation) can be an effective ploy. Much land proposed for development is on the edge of built-up areas and often that land will not have been used for any activity in recent times; those, however, are precisely the pieces of land which tend to have been used by locals for informal recreation and which could therefore justify registration as greens. This is, of course, a topic that we have dwelt on frequently. The effect of Commons Act 2006 will be to make it easier to register land as a village green:

• under the existing law, a landowner can prevent registration (even if there has been 20 years’ qualifying use) by preventing use as of right (eg by fencing). If this is done before an application is made, then it will prevent registration. Likewise, erecting signs granting permission for the use would probably have the same effect as fencing (although prohibitory signs, alone, might not). Under the new Act, however, there is a period of grace for applications for registration after use of right has ceased. Thus, there will now be a two-year period from the date on which use ceased. Accordingly, if land is used for recreation for 20 years before the use ceases, then at any time for two years after that date an application for registration will be possible under Commons Act 2006. From the landowner’s point of view it means that it will not be safe to develop land until two years after cesser of use;
• there is also a transitional provision which extends the period of grace to five years, provided the use of the land ceased before Commons Act 2006 comes into force;
• there is an exception for land where planning permission has been granted for development, and construction work started before 23 June 2006. The exception only applies to land that is now permanently unusable for recreation (eg on a typical housing development, it would prevent registration of any of the land built on, but not of any open spaces);
• when 20 years’ recreational use as of right has arisen, a landowner can currently prevent registration by granting permission for the use to continue. But, under the new Act the only sure way of preventing use as of right after 20 years will be physically to prevent access to the land (eg by fencing).

In summary, a landowner whose land has been used for recreation but for less than 20 years would be well advised either to fence it entirely or to erect permissive signs (and, in either case, to maintain the fence or signs). If 20 years’ qualifying use has accrued, then the best advice would be to wait until the new Act comes into force, to take advantage of the two-year (rather than five-year) period of grace, and then to fence the land entirely to prevent access (maintaining the fencing), and then hope no application is made in the following two years. See article in [2006] SJ 1348.  © Practical Lawyer