Since 1 October 2008, the next instalment of the Commons Act 2006 (the Act) is being piloted in seven local authorities around England and Wales, and is coming soon to a locality near you. The pilot brings into force Part 1 of the Act which addresses commons registration provisions and raises, again, the debate about the Act's supposedly "anti-developer" approach.

"Common Land" and "Town and Village Greens"

Common land is a piece of land owned by one or more persons, over which other persons can exercise a number of rights in common with a group or class of persons including fishing, livestock grazing and various rights to enjoy products of property he does not own. Over time the open space not specifically used by the owner became recognised as land for common use by others without having a right of ownership.

Town greens and village greens (a difference in nomenclature only, referring to the location of the green) are areas of land where the inhabitants of a town or village partake in various recreational activities. The area of land is regarded by a community as belonging to the community as a whole, for the benefit of that community.

The Commons Registration Act 1965 set out to recognise rights over common land and town and village greens as legal rights. The registers put in place permitted the registration of the areas of land affected. The areas of land registered (and not objected to as either common land or a town or village green) were thereafter protected for those with rights over the land. If land was not registered under the new system, the land would cease to be regarded as having that status.

The Act

In recent years the Department for Environment, Food and Rural Affairs sought to introduce tighter controls in relation to the status of and rights over common land and town and village greens. It also sought to address the ongoing management of such lands and rights. The 2006 Act is regarded as the vehicle for this. The Act aims to consolidate, simplify and improve the previous legislation and is being introduced in stages.

Part 1 of the Act

This part of the Act in force in terms of the pilot scheme deals with the rules for registration. Any new areas to be designated as common land or village greens are to be recorded on the registers that exist due to the Commons Registration Act 1965. The local authorities responsible for the registration are known as "commons registration authorities" and in addition to the provisions of Part 1 of the Act they are guided by the Commons Registration (England) Regulations 2008. In accordance with both sets of rules, from 1 October 2008 they are responsible for not only new registrations but also amendments to entries already on the registers and applications for deregistration.

The criteria for registration

The register of common land and rights over common land will be less contentious than town and village greens. Any new rights over common land may only be created by statute or expressly granted over land that is not a town or village green. In addition, the rights granted must attach to the land affected. That land must be registered as common land and the rights only come into effect when registered themselves.

The registration of town or village greens are likely to provide more uncertainty in respect of the status of land. An application may be made by the owner of land to register land as a town or village green but more of a concern is the right for groups of individuals to do so in respect of land they do not own.

An application may be made to register land as a town green or village green where "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". This right applies in various circumstances, namely:

  • where they "continue to [indulge as of right] at the time of the application";
  • for a period of two years from the date of cessation of use for such purposes where they stopped indulging "as of right" prior to the application date (but after 6 April 2007);
  • for a period of five years from the date they stopped the activity where they ceased their activities on the land prior to 6 April 2007. This right however will not apply if planning permission has been granted and works commenced before 23 June 2006 and the effect renders the land "permanently unusable" for the previous activities of the inhabitants.

Conclusion

The registration of a town or village green effectively prevents any development on the registered area of land. There is a broad class of people who are entitled to apply for registration. In addition the vague but inclusive definition of "lawful sports and pastimes" and the ability to seek registration up to five years after such use has ceased, could foreseeably cause commercial difficulty when acquiring land in order to undertake a development project.

The terminology used is subject to interpretation in the particular circumstances. The courts have held that a "significant number" doesn’t have to mean a lot of people, but the lower limit seems to be simply more than a few individuals. Similarly, a locality is an area with "sufficient cohesive identity". The key theme amongst the terms seems to be the use of the natural meaning of the words. It will be interesting to see how the authorities and the courts apply the rules to the period for retrospective registration.

It will be more important than ever to ensure a thorough exercise is carried out at the time of investigation of title to land. It is anticipated that a developer purchaser may require a warranty from a seller confirming the land is free from threat of registration as a town or village green. It may even be prudent to seek an indemnity against such registration of the land.

If in the course of investigation, it is discovered that there is an application for registration of the land, there is still a possible solution. The Act, like the old regime, allows for de-registration of town or village greens. If the land is more than 200 square metres however, the application for de-registration must be accompanied by an offer of alternative land to be registered as a green or village green in place of the original land.

The pilot scheme in the seven local authorities in England is to be reviewed during 2009. Subject to the outcome of the pilot scheme, the intention is for the provisions of Part 1 to be implemented across England and Wales by October 2010. It is anticipated that the whole of the Act will be in effect from 2014. We will continue to monitor and report on the implementation of the component parts of the Act.

The Act is created with well-intentioned aims and with the benefit of our society in mind. The worry is that the Act could work to stifle development on the whim of a disgruntled group of neighbours rather than being used by a community seeking to protect its legitimate use of a civic area.

Click to view the Commons Act 2006 as enacted.