‘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.’

There has, of course, been much litigation on this topic, and s15 amounts to a rewording of the earlier definition in an effort to bring clarity. Overall, it is fair to say that the definition is widely construed. In particular:

• ‘A significant number’: does not have to be a large number. All that is needed is that land is not used simply by a few individuals, but rather by local inhabitants in general.
• ‘lawful sports and pastimes’: can include dog walking, ball games, fireworks, bike riding and picnics.
• 20-years’ use: there does not have to be ‘use’ every day. It can be occasional but regular (eg in one case a field used for a bonfire party once a year for 20 years was registered as a village green.
• condition of the land: arguments were raised in the past that an application could not extend to a site that was overgrown. But, it now seems that any piece of land can potentially be a village green (eg in the Oxford [2006] case, the registration involved nine acres of shrubland, one-third of which was submerged, and yet all nine acres were registered).

Registration does not just protect the specific ‘sports and pastimes’ relied on, but gives a general right. For instance, whilst an annual bonfire party may have enabled registration, that land can then be used by local inhabitants for all other sports and pastimes.

Under the pre-2006 regime, applications faced a serious problem because the use had to be continuing at the time the application was made. This meant that if a landowner fenced off land before a planning application was made, then the use might well have stopped at the date of the application. Now, however, the rules have been relaxed and in deciding the point at which the ‘use’ must be carried out, there are three possibilities:

1 Where the use continues at the time of the application; or

2 The use ceases before the application and after 6 April 2007, but the application is made within the period of two years beginning with the cessation; or

3 Where the use ceased before 6 April 2007, and the application is made within a period of five years beginning with the cessation.

Thus there is a five-year grace period expiring in April 2012. Note that this does not apply if planning permission was granted before 23 June 2006, with construction works beginning before that date, and that then making the land permanently unusable for the ‘sports and pastimes’.

Finally, do not be misled by the quaint phrase ‘village greens’ into thinking that the 2006 Act only applies in rural settings. It can apply in urban environments. The end result is that any developer thinking of acquiring land that has been open and unused for 20 years should always be made fully aware of the inherent risks of a village green registration application being made. For a useful introduction see article in [2008] 203 Property Law Journal 16. © Practical Lawyer