Applications to register land as a village green are increasingly being used by opponents to delay or even prevent developments coming forward as anyone can apply for registration of any piece of land as a village green. The Supreme Court has recently handed down its decision in R (Lewis) v Redcar and Cleveland Borough Council (1), the latest in a line of decisions making it more and more difficult for landowners and developers to defeat applications for registration of land as a village green.
Why does registration as a village green matter?
Land which is registered as a village green must be kept open and available for recreational use by the public. Minor works of construction are permitted (for example the provision of public toilets or a bandstand), but will usually require consent from the Secretary of State (administered through the Planning Inspectorate).
The decision in the Redcar case suggests that village greens can continue to be used by the landowner, but only where this can co-exist with the recreational use by the public.
In the Redcar case, the owner (through the Golf Club) has been using the land for its own purpose (in this case as the first and eighteenth holes of the golf course and as a practice ground). The Supreme Court explained that if the land was still in use as part of a golf course, then the Golf Club’s activities could have continued, because both golfers and local inhabitants would, and would have to, continue to act civilly to one another and respect each other’s rights.
Can I develop on a village green?
No, and the fact that planning permission may have been granted for development is irrelevant. The only way in which village green land can be fully redeveloped is if alternative land is offered up as village green in exchange for that being built upon. It is up to the Secretary of State to determine whether the exchange land is suitable; it will need to be located close to the original village green site and be of equal utility to the public.
It is not even possible to remove the village green designation through compulsory purchase. However, suitable exchange land could be acquired through compulsory purchase if necessary.
Where village green land is less than 200 sq.m, an application can be made to have it removed from the register without exchange land having to be offered.
Is compensation available for registration as a village green?
No. The fact of registration is not compensatable, nor is the effective removal of the ability to implement an extant planning permission.
What are the criteria for registration?
Under section 15 of the Commons Act 2006, land may be registered as a village green where a significant number of residents of a neighbourhood have used the land for lawful sports and pastimes for at least twenty years “as of right”.
This use does not have to be continuing at the date of the application for registration; applicants have two years from the date on which the use ceases in which to make an application for village green status.
What does “as of right” mean?
Of the criteria referred to above, “as of right” has attracted most judicial consideration. The public make use of land “as of right” if they are not using it secretly, through force, or with the landowner’s permission. Put another way, the public use the land in a way which would indicate to a landowner that they believe they have a right to use the land.
Most of the controversy in interpreting “as of right” relates to attempts to demonstrate that land is used with the permission of the landowner. Permission can be implied rather than express, but the courts have set a high evidential threshold for demonstrating such an implication.
What has Redcar changed?
The defendant in Redcar argued that where users of the land defer to the use of that land by the landowner, that deference indicates to the landowner that users are not asserting a right to use the land. The use would not be “as of right” and the application must fail. This was accepted by the High Court and the Court of Appeal. However, the Supreme Court rejected the argument.
Deference alone is therefore not enough to demonstrate that use was not “as of right”. Something further (such as evidence of permission from the landowner) must be proven.
What steps can I take to minimise my risk on existing sites?
Ultimately, the success or failure of an application to register depends on the strength of the evidence. The more that can be done to demonstrate that the above criteria have not been satisfied, the better. Clearly, taking steps to curtail any public use of the site is essential - this triggers the two year period in which an application can be made and thus provides a definite longstop date for the risk.
Site-wide fencing preventing access is often the best option. Erecting signs (either prohibiting access, or expressly permitting access) is usually not sufficient in itself to
bring the use to an end.
Can I obtain insurance against a potential registration?
In principle, it is possible to insure against the risk, but insurers are extremely cautious. Usual requirements include erection of a fence for at least 3 months, full investigation of the site history, and written advice from Counsel on the degree of risk involved.
What steps can I take to minimise the risk on site acquisitions?
If it appears that the public have any access to the site, a full history of the use of the site should be obtained from the seller. This needs to include details of public use: type, regularity, control measures etc.
In cases of extreme sensitivity and where the timescale allows, once a risk has been identified, then consideration should be given to making an acquisition conditional upon immediate fencing of the site and expiry of the two year period, or alternatively conditional on obtaining suitable insurance.