The registration of land as town or village green prevents any subsequent development on or use of that land, unless it is aimed at improving the land for recreational purposes. Criminal sanctions may apply to those who violate that restriction, including the landowner.

In R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000], the House of Lords reviewed the application of the statutory test for determining whether land should be registered as a town or village green. Under s22(1) of the Commons Registration Act 1965, land would be registered if an applicant could show the application site was:

… land on which the inhabitants of any locality [had] indulged in [lawful] sports and pastimes as of right for not less than twenty years.

In earlier decisions, the courts had concluded that the locals using the land had to show that they believed they had a legal right to do so. Knowing that they did not own the land, most users could not claim to have held that belief. Since permission from the owner negated any argument that the use was ‘as of right’, there were in consequence few successful village green claims.

Sunningwell

In Sunningwell, the House of Lords took the view that this approach was fundamentally flawed, and that any such belief was irrelevant to the statutory test. The Lords also rejected the suggestion that at least one formal sport must have been played on the land, noting that:

… dog walking and playing with children were, in modern life, the kind of informal recreation which may be the main function of a village green.

In a further blow to the more benevolent or impassive landowner, the Lords declared that, whilst use with consent was inconsistent with the notion of ‘as of right’, mere tolerance by an owner was not.

Following the relaxation of the statutory test, registration authorities noted a sharp increase in the number of applications to register land as town or village greens, many of which were openly aimed at preventing future development of the application site. Although Sunningwell made the test for establishing a town or village green easier to satisfy, the decision was limited in scope and left many questions unanswered. It left applicants, objectors and registration authorities alike to grapple with an area which had previously attracted limited judicial interest.

A limited attempt was made to address those uncertainties in s98 of the Countryside and Rights of Way Act 2002, which has clarified that use of the land for recreational purposes must continue up to the date of the application to register. The section allows for secondary legislation in due course, providing for a yet to be determined ‘period of grace’ for an applicant to lodge their claim after a landowner has taken steps to prevent recreational use from continuing on the land. Relaxing the statutory test further, s98 also provided that the test will be satisfied if the claimed use has been by those living within either ‘a locality’ (ie a recognisable administrative area) or the smaller and less forma ‘neighbourhood’.

The recent decision of Sullivan J in R v Buckinghamshire County Council, ex parte Laing Homes [2003], however, provides long-awaited guidance on key points.

Laing – the facts

In 1963, Laing Homes acquired Widmer Farm near High Wycombe, with the intention of pursuing consent for residential development of the land in the medium to long term. The land was on the fringes of an existing residential area, with a number of private houses backing onto it, and comprised three fields with a combined size of approximately 38 acres, together with a number of smaller fields. Consistent with the strategy of many developers with long-term land banks, Laing’s management of the land pending development permitted licensee farmers to use it for agricultural purposes.

Between 1973 and the early 1990s, the land was used by Mr Pennington, whose main farm was some 20 miles away. His evidence was that, although he initially used the land for both grazing cattle and taking an annual hay crop, he found it increasingly difficult to keep the boundaries of the land secure from trespassers, and from the early 1980s he limited his activities to hay-making, taking his final crop in the early 1990s.

Throughout its ownership of the land, Laing promoted the site for residential development through the local plan process, and at each stage there were objections from local residents. So far as Laing was concerned, its intentions for the land were, and always had been, clear.

In August 2000, an application was made on behalf of the Grange Action Group (representing a number of local residents’ associations and supported by local parish councils) to register the three fields comprising 38 acres of Laing’s land as town or village green. The application was made without warning to Laing, and alleged that for at least 20 years, and despite the presence of the licensee farmer until the early ‘90s, the land had been used for everything from kite flying and brownie games to land yachting!

Not surprisingly, Laing objected to the application and the local registration authority, Buckinghamshire County Council, appointed barrister Alun Alesbury as independent inspector to hear each party’s evidence.

The inspector’s Recommendations

The inspector directed the parties to exchange witness statements and documentation, and at a local inquiry in November 2001, which lasted six days, heard from ten witnesses and was referred to over 130 letters and questionnaires in support of the application. Laing called on the now-retired licensee farmer and produced evidence from the company and its planning consultants.

In March 2002, the inspector produced a comprehensive report, in which he analysed the evidence of each witness, examined the legal issues, and ultimately concluded that the applicant should succeed, finding that:

• there had been at least 20 years’ substantial recreational use of the land prior to the application, that use being by those living within the ecclesiastical parish of Hazlemere; and
• such use was as of right, in that it had been carried out ‘openly, without force, without permission express or implied, and not in defiance of any prohibition’.

Accepting the inspector’s conclusions, in April 2002, Buckinghamshire County Council resolved to register the land as town or village green.

Judicial review

Laing challenged that decision, claiming that the inspector had erred in his ‘domestic law’ conclusions and reiterating that, fundamentally, registration of the land as town or village green would contravene Article 1, Protocol 1 to the European Convention on Human Rights. In consequence, Laing’s claim was resisted, not only by the registration authority, but also by the Secretary of State for the Environment, Food and Rural Affairs as an interested party. The claim was heard by Sullivan J during March and April 2003.

The domestic law challenge

Counsel for Laing identified three main heads of domestic law challenge, namely that:

(1) the inspector had erred in concluding that the taking of a hay crop from the land by the licensee farmer for over half of the 20-year claimed period was not incompatible with the village green rights;

(2) the inspector had failed to analyse the claim on a field-by-field basis or discount the use by the locals of the footpaths on the perimeter of the three fields; and

(3) use could not be ‘as of right’, since the locals had objected to Laing’s proposals during the planning process, claiming that the land should ‘revert to full agricultural use’, thereby accepting that there was no lawful right to use the land for recreation.

The decision

Ground 1

The inspector had accepted Laing’s evidence that the licensee farmer had taken an annual hay crop from each of the three fields for well over half of the 20-year period of use claimed, and found that there had been low-level use by grazing animals during the first two or three years of that period. He likewise accepted a detailed explanation from Mr Pennington as to the steps which would be taken throughout the year to achieve that hay crop, and noted the evidence of both Mr Pennington and the applicant’s witnesses that the locals would ‘steer clear’ of the farmer’s activities and would not deliberately interfere with the cut hay whilst it was laid out on the fields to dry. Thus, whilst the hay-making was in progress, the locals could not (and indeed did not try to) use the land for recreation.

Reviewing the point, not only in the light of the evidential conclusions reached by the inspector (which were not challenged), but also the 19thcentury legislation and authorities relating to village greens, the judge rejected the registration authority’s submission that the test was whether the agricultural use interfered sufficiently with the locals’ use of the land for recreation.

Rather, the correct approach was to ask whether that recreational use was such that the reasonable landowner should have been put on notice that the locals considered that they were exercising a public right. Noting that if the starting point was ‘How would the matter have appeared to Laing?’ he concluded:

It would not be reasonable to expect Laing to resist the recreational use of their fields as long as it did not interfere with Mr Pennington’s use of those fields for an annual hay crop.

Accepting that the farmer had not been physically present on the fields for many days in any one year, the judge considered that this was not unusual, as agriculture had become more mechanised. He went on to comment that landowners might choose to use their land for purposes other than agriculture (giving examples of overflow car parking, reserved playing fields and occasional camp sites) and for a relatively small number of days or for a short period in any one year. Provided that the locals who are otherwise using the land for recreation have deferred to the owner’s use, the same principle should apply to defeat any village green claim. However, this will be subject to a ‘fact and degree’ proviso – in Sunningwell the grazing of a handful of horses on the application site did not give rise to a clash of uses and the claim succeeded. Noting that the inspector had acknowledged that the application ‘stands or falls… on this point’, the judge determined that the inspector and the registration authority should have concluded that the village green application failed on this point.

Ground 2

The judge accepted the submission on behalf of the registration authority that since many village green uses are by nature leisure-related, it would be surprising if the statutory test required that the lawful sports and pastimes must be carried out throughout daylight hours and at all times of the year. However, rejecting Laing’s submission that the inspector was obliged to carry out a fieldby- field analysis, the judge nevertheless considered that it was important to distinguish between use which would put the reasonable landowner on notice that users considered they were exercising a public right of way (for example by taking a route around the perimeter of a field) and use which might suggest the exercise of more extensive rights across the whole field.

Walking, with or without a dog, around the perimeter of the fields was the main recreational use relied on by the applicant. Discounting these, the applicant had not proved or shown sufficient frequency and nature of use of the whole of the three fields to succeed.

Ground 3

Counsel for Laing submitted that it was not only the actions of the users of the field that counted, but the message being conveyed to Laing as a whole. The objection lodged by the same group of locals during the planning process was unequivocal in the context of the village green claim, going beyond a simple objection, and suggesting an alternative use which was entirely consistent with Laing’s understanding of its rights, ie to use its land for agriculture. Again finding for Laing, the judge commented:

Why should it have appeared to Laing that the users of the fields believed that they were exercising a public right if, following their non-interference with Mr Pennington’s taking of a hay crop, they (or Associations representing significant numbers of them) contended that agricultural use should be resumed following Mr Pennington’s departure?

Conclusion

Sullivan J’s findings provide clarification for those involved in the process of determining whether land qualifies for registration as a town or village green, be it the applicant, objector or registration authority, particularly on the question of competing use of that land by or on behalf of the owner and by locals during the relevant period. The taking of a hay crop from land will normally be incompatible with the accrual of village green rights, whilst use of the same land for rough grazing may not be. The benchmark is how the position would appear to the reasonably vigilant landowner.

The judge’s comments also provide landowners who do not wish to see their land dedicated to village green use, but for whom it may be neither practical nor desirable to police their land on a daily basis, with valuable guidance on the future management of that land.

Human rights

At the inquiry, Laing argued that the registration of its land as village green would be a de facto deprivation of property with no prospect of compensation, contrary to Article 1 of Protocol 1 to the European Convention on Human Rights. The inspector rejected that argument.

With the involvement of counsel for DEFRA as an interested party in the judicial review proceedings, the human rights point was more fully argued, with, as Sullivan J, said, ‘wideranging submissions fortified by the citation of numerous authorities’.

However, accepting that the parties would be disappointed, the judge declined to make any finding on the human rights argument since, having found for Laing on the ‘domestic law’ issues, no question of interference with Laing’s human rights arose. That said, his closing commentary that if, in principle, the human rights legislation had applied, a distinction might be drawn between land which, during the relevant 20-year period, had been used (for agriculture), and land which had been put to no effective use, will arguably keep the human rights perspective alive for the moment, so far as village green claims are concerned.

Case references

R v Buckinghamshire County Council, ex parte Laing Homes [2003] EWHC 1578 (Admin)

R v Oxfordshire County Council & anr, ex parte Sunningwell Parish Council [2000] 1 AC 335

Sue Jones is a non-practising barrister in the commercial property department at Laytons.

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