The possibility of registering open land as a town and village green under Commons Act 2006 continues to cause many headaches for developers. Considerable publicity was given to the decision of the Supreme Court in Redcar [2010] where a registration was allowed in respect of land owned by the local authority which formed part of a golf course, but which was also used by local residents for informal recreation. It was held that their use had been ‘as a right’ even though they had deferred to the golfers if golf was in play. 


That decision indicates that any open space used by local inhabitants for 20 years for activities such as dog-walking, and playing with children, may be subject to a successful application. However, the display of notices may assert the landowner’s rights so as to prevent the application for registration succeeding. Two recent cases are relevant: 


a landowner erected numerous signs over a period of years warning that land was private, and warning off members of the public. It was held that he had been doing everything, proportionate to the user, to contest and interrupt it. It was therefore clear to the members of public who accessed the land that the landowner objected and continued to object to their use of the land (Betterment Properties [2010]);


a landowner erected ‘no public right of way’ signs which directed users to footpaths on the land. It was held that these could not be taken objectively to refer to recreational use of the land as a whole. If the landowner had wanted to interrupt the local use of the whole land it could, and should, have said so by using appropriately worded notices (Oxfordshire [2010]).


In practice, of course, applications to register town and village greens are now being used as a ‘weapon of guerrilla warfare against development of open land’ (Lord Walker in Redcar [2010]). Since there are no financial risks as to costs or damages if the application is unsuccessful, and applications are easy to make, they are being used increasingly as a guerrilla tactic. Source: Charles Russell.