The law surrounding 'Common Land' and 'Town and Village Greens' is complex. At the time of writing there are two pieces of relevant legislation which are central to governing the regime for the registration and management of common land and greens. These are the Commons Act 2006 (partly in force) and the Commons Registration Act 1965 (which will be repealed in full once the Commons Act 2006 is brought fully into force). Other relevant legislation includes the Countryside Rights of Way Act 2000, Growth and Infrastructure Act 2013 (England) and the Planning (Wales) Act 2015.
This Article provides a brief description of both categories of land and the significance of land being registered as either a 'Town or Village Green' or 'Common Land'.
Town and Village Greens
What are town or village greens?
Legally, town greens and village greens are the same. The difference in name merely relates to the location in which the green is situated. A town or village green is an area of open space which by immemorial custom has been used by the inhabitants of the town, village or parish, for the purposes of playing lawful games and recreation.
The core requirement common for applications to register new town and village greens under section 15 of the Commons Act 2006 is that:
"a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years."
The significance of land being a town or village green
Registration of land as a green is likely to prevent development. Therefore, it is a serious issue for developers if land is at risk of registration as a green. A search can be carried out to identify whether land is currently registered as a town or village green. However, the absence of registration at the time of purchase does not prevent registration in the future. Successful registration preventing development is likely to significantly devalue land.
The possibility of land being a town or village green is important, because once a green is registered:
- It is a criminal offence to undertake any act which interrupts the use or enjoyment of a green as a place for exercise and recreation or to cause any damage to the green.
- It is an offence to drive over a registered town or village green without lawful authority and in certain other circumstances.
- It is deemed to be a public nuisance and therefore, an offence, to enclose or encroach on a green, or interfere with, disturb or build on a green, unless this is done "with a view to the better enjoyment of such town or village green."
- Greens may also be subject to any registered rights of common.
Prevention of development
The introduction of section 15 of the Commons Act 2006, made it easier to register land as a green and so be protected from development or encroachment. Therefore, there was an increase in applications to register land as a green, by those opposed to development on open space.
The government became concerned that the greens registration system was being used to prevent or delay development and to undermine the planning process. As a result, it introduced significant changes to the law on registering new greens through the Growth and Infrastructure Act 2013. These changes make it more difficult to register land in England as a green.
What is common land?
There is no single definition of common land. However, in general terms, "common land" means land owned by one person over which another person is entitled to exercise rights of common. There are five main classes of rights of common: Pasture (right to graze animals), Piscary (right to fish), Turbary (right to dig turves or peat), Estovers (right to take wood for the sustenance of the commoner's house or agriculture) and 'In soil' (right to take sand, gravel, stone and minerals).
A search can be carried out to identify whether land is currently registered as common land.
The significance of land being common land
Whether land is common land is important, because once a common is registered:
- The land will be subject to any registered rights of common which means that third party rights can be exercised over the land.
- There is a right of public access on foot to "access land" under Countryside and Rights of Way Act 2000, which includes all registered common land under section 1 of that Act.
- Members of the public have rights of access for air and recreation over metropolitan commons and certain other commons.
- It is an offence to drive over common land without lawful authority.
- There may be restrictions on the owner's ability to develop and use the land.