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In recent years, residents who have wanted to prevent development have found applications to register the land as a town or village green, a useful weapon in their armoury.
A number of cases followed the leading decision in Sunningwell, tipping the balance in favour of the applicants. On 24 February 2005, judgement was handed down from the Court of Appeal in the case of Oxfordshire County Council v Oxford City Council. The decision gives heart to all those landowners who dread the delay and uncertainty that come with applications to register land as a town or village green.
This case answered a number of questions that have arisen particularly since section 98 Countryside and Rights of Way Act 2000 amended the definition of what are known as "class c" greens under the Commons Registration Act 1965. It is class c greens that have become the bane of landowners and developers lives. Firstly, the Court considered what the substantive effect of registration as a class c green was. The Court held that registration does not of itself confer or imply rights on local inhabitants to indulge in sports and pastimes on the land. However, registration is conclusive that the land is a town or village green within the scope of applicable legislation such as section 12 Inclosure Act 1857 and section 29 Commons Act 1876. What this means in practice is that an individual cannot commence proceedings against a landowner/developer preventing him from exercising a right but other offences may have been committed. The 1857 Act for example prohibits "any act whatsoever" to the interruption of the use or enjoyment thereof as a place for exercise or recreation".
Secondly, the Court examined the effect of subsection 1A which came into force on 30 January 2001. It held that the words "continue to do so" in that subsection mean that the lawful sports and pastimes must continue to the date of registration, and any applications made after 30 January 2001 must be considered in the light of this subsection. Lord Justice Carnworth saw that this would give a landowner "a final opportunity to assert his rights". However, if landowners once on notice that an application has been made, do not assert those rights, the courts may legitimately infer that the land has been dedicated or abandoned to recreational use.
Thirdly, the Court considered whether it was possible to consider what was described as a "freestanding" application i.e. an application which identified a 20 year period that did not relate to the application date. (In this case the applicant considered that the land had become village green in 1990.) Lord Justice Carnworth was clear that as the use must continue until the date of registration, that it was not possible.
Fourthly, a number of issues relating to the powers of the Registration Authority in dealing with an application were resolved. The Court held that:
1. the Registration Authority could treat the application on the basis that a different date had been specified for the date of registration (as the applicant had specified a date in 1990 as set out above);
2. the Registration Authority could amend the application to include a smaller area; and
3. the Registration Authority could register only part of the land included in the application.
In concluding his judgement, Lord Justice Carnworth made a number of comments relating to the antiquity of the legislation and the need for amending legislation. All those who have been party to proceedings relating to village greens will understand the basis on which his comments have been made. Although leave to appeal to the House of Lords was denied in the Court of Appeal, an application for leave can still be made. In the meantime, landowners should continue to be aware of the necessity to assert their rights over their land in order to prevent a successful application for registration.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2005. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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