KEY POINTS

• If land is used for lawful sports and pastimes by members of the public for 20 years, they can register it as a "town or village green".
• The recreational use has to be "as of right", but tacit permission from the landowner is not enough to stop the registration.
• Registration as a green will block development of the site. Purchasers and developers beware!

An area of open space has recently been granted planning permission for development. You want to block the development, but the planning authorities have dismissed your objections. What can you do?

Easy - you apply to register the site as a "town or village green". If you succeed, the development can never happen. All you have to prove is that the land comes within the definition of "town or village green" in section 22 of the Commons Registration Act 1965:

"Land on which for not less than twenty years a significant number of the inhabitants of any locality… have indulged in lawful sports and pastimes as of right."

In R (on the application of Beresford) v City of Sunderland [2003] UKHL 60, members of the public had used an area of land known as the "Sports Arena" for sports and recreation since at least 1977. During that time, the landowners (initially the Development Corporation and latterly the City Council) had grassed over the plot, constructed wooden seats around the perimeter and laid a cricket pitch. No fencing had ever been built.

In 1998, the Council granted planning permission for a college to be built on the site. Local objectors acted to block the development by applying to register the land as a "town or village green".

The Council refused to register the land as a green, arguing that the recreational use had not been "as of right" - as required by the 1965 Act - but pursuant to an implied permission given by the landowners. The Council's refusal was initially upheld both in the High Court and in the Court of Appeal.

However, late last year the House of Lords ruled that the application to register the land as a green must succeed. The fact that the owners of the site had tacitly allowed and even encouraged use for public recreation did not stop the use being "as of right".

The result, of course, was that the proposed development could not go ahead.

HOW DOES A PURCHASER FIND OUT ABOUT THIS?

With difficulty. If the land has already been registered as a town or village green, this will of course be revealed when a purchaser carries out a "commons search" before exchange of contracts.

But if the local inhabitants have used the land for recreational purposes for at least 20 years but have not yet registered it as a green, it will not show up on any search. If they successfully register it as a green after you've bought it, you'll be stuck.

Message for developers: when buying open land for development, don't rely on searches. Extensive local enquiries about the past history of the site are essential to avoid disappointment!

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