Town or village greens have been a contentious and much-litigated area of the law for the last decade. Several cases have been as far as the Court of Appeal and three have been decided by the House of Lords. Some of these decisions are considered in detail below, but the focus here is to explore the changes that will be introduced on 6 April 2007. This is when the Commons Act 2006 (Commencement No. 2, Transitional Provisions and Savings) (England) Order 2007, as supplemented by the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007, comes into force.

Village greens in context

The concept of a village green is one founded in feudal land law. Village greens were often part of the wasteland of the manor that by custom villagers had used as of right for sports and pastimes. In the 18th century, during the periods of inclosure, many greens were also allotted by Act of Parliament. This changed in 1965 with the introduction of the Commons Registration Act, which required two classes of green (so-called ‘class a’ and ‘class b’ greens) to be registered, and provided for the potential registration of ‘class c’ greens after 20 years’ use. The initial round of applications up to 1 January 1970 were dealt with, in the case of disputed applications, by the Commons Commissioners without much in the way of controversy.

It was not until 1996 that ‘class c’ greens were first considered by the Court of Appeal – in R v Suffolk County Council, ex parte Steed. In Steed the court held that ‘as of right’ meant that users had to hold a subjective belief that they had a right to use land. This was a departure from the previous meaning of ‘as of right’, which was well understood in relation to the acquisition of easements by lost modern grant and prescription.

The House of Lords overturned Steed in R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999], holding that the objective test of ‘as of right’ used in easement claims was correct.

Sunningwell to some extent opened the floodgates, in that many village green claims held back, or rejected following Steed, could succeed using the Sunningwell definition of ‘as of right’. The consequence, however, was that the courts had to deal with a complex statutory definition, which had not been subjected to judicial scrutiny for the first 35 years of its life.

The result was a flood of cases – for example: R (Alfred McAlpine Homes Ltd) v Staffordshire County Council [2002]; R (Beresford) v Sunderland City Council [2004]; R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004]; R (Laing Homes Ltd) v Buckinghamshire County Council [2004]; R (Whitmey) v Commons Commissioners [2004] amongst others). This culminated in the third decision of the House of Lords on village greens (Beresford was the second) in Oxfordshire County Council v Oxford City Council [2006] (Trap Grounds). It was Trap Grounds as much as anything that prompted an amendment to the Commons Bill, to introduce a new definition of village green so as to deal with a situation where use by locals was challenged by the landowner, but an application was not made immediately to register the land as village green.

The Commons Act 2006

Section 15 of the Commons Act 2006 introduces a new definition of town and village greens (see the box below) and was brought into force (in England) on 6 April 2007. The underlying test remains unchanged from s22(1A) of the Commons Registration Act 1965 (as amended by the Countryside and Rights of Way Act 2000 (CROW)). Land must be used by a significant number of the inhabitants of a locality, or a neighbourhood within a locality, as of right, for not less than 20 years. The key changes introduced by the Commons Act are:

(1) Section 15 introduces two new time limits within which an application for registration must be made. Both time limits start running from the date when use ‘as of right’ ends, for example when a landowner fences the land or erects prohibitory notices:

(a) the primary period will be two years from the date that use has been ceased, as long as that date is after 6 April 2007 (s15(3)); but

(b) if the date on which use ceased was before 6 April 2007, the limitation period for applications is five years (s15(4)).

(2) The only exception to the five-year limitation period (which does not apply to the two-year period) is where:

(a) planning permission was granted before 23 June 2006; and

(b) development works commenced before that date in accordance with the permission; and

(c) the works render the land permanently unusable by the public (s15(5)).

(3) The definition of use ‘as of right’ from the 1965 Act continues – it means ‘without force, without secrecy and without permission’. From 6 April 2007, if the landowner grants permission after 20 years of qualifying use, that permission will not defeat an application for registration (s15(7)(b)). There is no time limit, or limitation period in respect of applications made where permission is given after 20 years of qualifying user.

(4) A second application can be made under s15, even if an earlier application has been made (and possibly even rejected) under the 1965 Act.

(5) The landowner can now apply for registration (s15(8)).

Why the changes are important

The Act does not fundamentally change the definition or requirements for registration of a village green, but it does change some of the procedural aspects of the system. The key changes are s15(3)-(5), which introduce limitation periods for applications (described by Defra as ‘periods of grace’ in the explanatory memorandum to the Regulations). Section 15(4) is the most striking of these, as the five-year limitation period has retrospective effect. The limitation periods are not, in truth, a new concept – there was provision in s22(1A) of the 1965 Act for regulations to prescribe the period during which applications could be made, notwithstanding that use had ceased. However, no such regulations were ever introduced. It is therefore puzzling that part of Defra’s stated motivation for implementing s15 in a hurry and without consultation was that:

Applications for registration under the 1965 Act (in the light of the Trap Grounds judgment) cannot succeed unless made immediately following a challenge to use.

This begs the question why it was necessary to rush s15 into force, rather than making regulations under s22(1A), and indeed why Defra did not, between 2000 and 2006, bring forward regulations to avoid the (rather obvious) problem with the words ‘and… continue to do so’ set out in in s22(1A).

What will the effect be?

The introduction of s15 will swing the pendulum in favour of applicants and away from landowners and developers. This is apparently deliberate, as Defra appears to have decided that it is more acceptable to put landowners and developers to significant risk and cost than it is to risk losing sites that might be capable of registration.

Green spaces within built-up areas are important and should be protected, and that is a central plank of the planning system. However, it is also clear that applications to register land as village green are used as the last throw of the dice by objectors to development. Very often, what is described as important green or community space is, in fact, derelict wasteland that is an eyesore and could be put to better use. It is striking that almost all of the authorities relate to development land, normally where planning permission had already been obtained.

Developers and landowners now face a period of uncertainty, where an application might or might not be made. Where planning permission has been granted, or where it is likely to be granted, developers will be extremely concerned to learn that the development may be at risk, even where land might have been secured and fenced, up to five years before 6 April 2007. It is clear from Defra’s advice (see below) that unless an application falls within s15(5), even if the land has been developed the application might succeed. In that eventuality, it is the view of Defra that any works carried out would have to be removed and the land restored.

Defra’s view appears to be that developers will know if land is liable to be subject to an application. That, in the writer’s view, is a particularly naïve supposition. In its ‘Advice on the Implementation and Commencement of Section 15 of the Commons Act 2006’, Defra says:

It is for the landowner to decide whether to go ahead and develop his land. In the vast majority of cases, the landowner will know whether the past use of the land is capable of supporting a claim for registration as a green, and may act accordingly. In those cases where doubt may arise, section 15 ensures that the landowner may confidently proceed without risk of an application two years after any use of the land has effectively been challenged… If a successful application is made… the landowner would run the risk that any building work undertaken may then have to be removed from the land.

This, however, presupposes that a landowner or a developer purchasing a site can be certain what the status of users of the land might be (if it is even obvious from a visual inspection). There are, in the writer’s experience, frequently arguments at non-statutory public inquiries as to whether use by members of the public walking across a site is evidence of status as a town or village green, or whether, for example, it is a defined route that is in fact evidence of the creation of a footpath (the significance being that a footpath is easier to stop up or divert, particularly if planning permission is granted). Defra’s view is again instructive:

If a developer has owned the land for some years, he should be aware of the nature of its use during that period, particularly if there is any consistent pattern of recreational use. If the developer has just bought the land, he should have sought assurances about any use of this kind that had taken place in the past.

This view is all very well, but the reality for landowners, developers, vendors, purchasers, planning advisers and lawyers is far more complicated. Purchasers will end up proceeding on risk, vendors will have potential misrepresentation claims hanging over them and the professionals will all be concerned about potential negligence claims. Defra expresses the view that s15 will have benefits for developers, as it will enable the status of land to be clarified through the application process. The writer is certain that developers will not be overjoyed at this prospect or the likely costs involved!

Impact on the planning system

There is a perception currently that landowners, large corporations, developers and in particular housebuilders are ‘landbanking’ and that attempts to ‘grab’ land are distorting the property market and the planning system. This would appear to be the prevailing view in Defra.

This view however runs counter to the government’s view as expressed in relation to the planning system and in particular the Barker Review. The Barker Review identified that the planning system needs to provide approximately 120,000 units a year in England for the next 15 years in order to attempt to rebalance supply and demand (in truth, just to keep pace with demand). PPS3 (which is now in force) imposes an obligation on local authorities to ensure that they have a 15-year supply of development land to meet their own targets for new homes. Local authorities, in order to meet this obligation, need to be able to demonstrate that for the first five years (and as they move forward, for the next five years and so on) they have sufficient ‘deliverable’ sites to meet their obligations. The implementation of s15(3) and (4) in particular throws into doubt whether local authorities can meet those obligations as it will, since 6 April 2007, be far from clear whether many of those sites are actually ‘deliverable’ within the timescale. It also raises the prospect of sites being pushed back by local authority planners if it is perceived that they might be susceptible to an application for registration if there are other sites that may not have the same problems, and may therefore be deliverable within the timescale.

This may also have a significant effect on housebuilders and other developers. The share price of many of these companies is dependent, to a large part, on the market being satisfied that they have a sufficient stock of land, and therefore a sufficient stock of as-yet unbuilt units, so as to justify the value of the company and the share price. It is unclear how much of that ‘stock’ will, after 6 April 2007, be affected by the changes and it is unclear whether or when the market may wake up to that fact, and what effect that may have on the values of these companies. If the effect were to be negative, it is unclear to what extent those effects might ripple through the property market as a whole.

Problems for the future

The changes implemented in s15 will have an effect on applications, how they are considered, and how they are advanced by applicants and defended by landowners. The changes as set out above will not fundamentally alter the position under the ‘old’ law (other than in respect of the new limitation periods). This however appears to be contrary to the view of Defra, which says:

The existing criteria for the registration of greens are notoriously uncertain and are constantly being reviewed by the courts. Early introduction of s15 will minimise uncertainty for everyone as to the criteria for registration of greens, and reduce the likelihood of registrations being judicially reviewed by the courts.

The writer’s view is that, again, this view expressed by Defra is somewhat naïve and overly optimistic. The reason that this area has been so heavily litigated since the mid to late 1990s is that there are very large sums of money involved. The reasons for litigation will not go away – developers risk substantial losses if they do not defend applications, and applicants often want to prevent development at any cost.

Further, the main elements of the definition of land registerable as town or village green are not altered by s15. The main substantive change is in relation to the limitation periods (which could have been introduced through regulations brought in under CROW), to provide that the landowner can register its own land, and to provide that any period when land was ‘closed’ (for example for foot and mouth) will not amount to an interruption or break in the 20-year prescription period. It would appear that all of the previous decisions, except for the House of Lords’ analysis of s22(1A)(a) of the 1965 Act in the Trap Grounds case, remain ‘good’ law.

More significantly, as any expert in the field of town and village greens will know, there remain unanswered and unlitigated questions on the definition of greens under the 1965 Act, which will still exist after the implementation of s15 and will inevitably have to be answered by the courts. For example:

(1) How strong do a developer’s suspicions, or the extent of their knowledge, have to be before a development will have to be removed and the land restored if the five-year limitation period under s15(4) of the Act (or the two-year limitation period under s15(3)) is relied upon in an application?

(2) To what extent will the equitable doctrines of estoppel, laches or acquiescence apply to s15(3) and (4)? In particular, where applicants have delayed and allowed development to proceed, will the court favour the landowner or the applicants? Will the courts adopt a similar approach to that taken in relation to injunctions for breach of covenant, or rights to light, or will they take a more robust and ‘proapplicant’ approach?

(3) What do applicants have to do to put the landowner on notice and what happens if they do not, but the landowner suspects (or should have suspected) that an application will be made?

(4) What rights are created as a result of registration – this point is in part answered by the House of Lords in the Trap Grounds case, but it is not helpful that their Lordships were split on this and other answers to the questions put to them, and it is even less helpful that they were split in different ways on different issues. It is not at all clear what the outcome would be where a case turned on its facts on arguments over what rights existed after registration.

(5) It is not clear either how the courts would treat a claim by local inhabitants to control the use of the wider public, or the use of the landowner after the land had been registered, if that interfered with the rights of local inhabitants.

(6) The most likely source of litigation, however, will be on what amounts to an interruption of use ‘as of right’. Fencing is obvious and unequivocal, but other steps taken by landowners might have the same effect. This issue has only been considered in detail by the Court of Appeal and High Court in relation to signs erected at the Trap Grounds. The House of Lords determined that the erection of the signs did not defeat the application and appeared to agree with the Court of Appeal that had they been erected prior to the application, they would have been effective to render the use not ‘as of right’. The courts have also considered this issue around the edges, for example in relation to arguments over toleration and implied permission in the Beresford case. It seems likely that these arguments will crystallise as a result of s15 where it may be crucial to determine when the two- or five-year limitation period begins to run.

(7) Finally s15(4) has retrospective effect and has been certified by Defra as Human Rights Act-compliant. It is almost inevitable that a developer will raise a challenge on this issue.

Conclusion

Village greens already pose a significant headache for developers. The implementation of s15 will only make that situation worse. Developers and landowners should, as a matter of some urgency, audit their land and should take expert advice as soon as possible. It will be a brave developer who erects fencing or takes other unilateral action after 6 April 2007 without first taking advice on a case-by-case basis (and many may come to regret having erected fencing, or prevented use prior to that date, due to s15(4)).

The costs of defending an application can be high, as it is rarely possible to negotiate or find a commercial resolution to village green applications. There may however be more subtle steps that landowners or developers can take to strengthen their position, that do not involve fencing and that protect their position without inviting an application.  © Property Law Journal