Land can be registered as a new town or village green (TVG) “if for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes [on it] as of right”. This was the case under section 22 Commons Registration Act 1965 and the test remains the same under section 15 Commons Act 2006 (CA 2006).
The effect of TVG registration is that the public will have rights to use the land, and therefore the owner will be restricted in his ability to develop it. Consequently, landowners faced with a TVG application often wish to oppose such registration. In 2010, four cases considered the issue of TVG registration, with significant outcomes for landowners.
Successfully overturning a TVG application
Successfully challenging an existing TVG registration is possible, as shown in Betterment Properties (Weymouth) Limited v Dorset County Council.
The case concerned land already registered as a TVG. The claimant landowner argued that the registration should be cancelled, since the previous landowner had verbally warned the public to keep off the land for some time. He maintained that, consequently, the land had been used adversely and not ”as of right” for the requisite twenty year period. The High Court agreed that the landowner had taken enough steps to render the public’s use adverse, even though he had not commenced legal proceedings against the trespassers. Accordingly the TVG registration was cancelled.
Betterment demonstrates that, if landowners make sufficient efforts to keep members of the public off their land, they may be able to prevent the land from being registered as a TVG, even if the public does not respect these attempts. What matters is whether the use is “contentious”.
The case was brought under the 1965 Act. Although not apparently available under CA 2006 this avenue of retrospective challenge remains available unless the land concerned is in one of the 2006 Act’s designated “pilot areas”.
The importance of active steps
However, following R (Lewis) v Redcar and Cleveland Borough Council landowners must ensure they actively warn the public that their land is private.
In this case, members of the public applied for land used as a golf course to be registered as a TVG. The public had always deferred to the golfers when using the land, so the registration authority, the High Court and the Court of Appeal all rejected the application, saying the land was not being used “as of right”. However, the Supreme Court allowed the registration. It held that, despite the apparent “deference”, members of the public were merely being courteous and civil, and that their use was still “as of right”.
This illustrates that, if the landowner does not object to the public using his land, it could be registered as a TVG, even where it is obvious that the landowner is using the land for his own purposes and that the public appear to accept that. Consequently, if the public is not to be excluded completely, the landowner must be sure to take active steps to inform the public that his land is private.
The Supreme Court also considered the effect of registration on the landowner’s rights. In a rather optimistic ruling, it was held that registration did not entirely oust the landowner’s rights but that they had to be exercised in tandem with the rights which the public had acquired. How this might work in any particular case remains to be seen.
The warning must apply to all of the land
Another warning for landowners emerged in R v Oxfordshire County Council (the “Warneford Meadow” case).
The landowner had put up signs to the effect that there was “no public right of way” on recognisable paths over his land. The land was registered and the landowner failed in a judicial review of the decision to register. The High Court held that, as the notices only referred to the paths, they did not to extend to the balance of the land. Consequently, the public’s use of it was “as of right” rather than being contentious, and the land was properly registered as a TVG. Accordingly, when landowners erect warning signs that land is private they should ensure that they apply to the land as a whole: a notice inadequately worded will not provide the necessary protection against the land being registered as a TVG.
Finally in the 2010 quartet of cases on TVGs, in Leeds Group v Leeds City Council the High Court discussed the meaning of “neighbourhood within a locality”.
The result was that both “locality” and “neighbourhood” were found to encompass not only single but also multiple neighbourhoods and localities. The ability of applicants to rely on “multiple neighbourhoods” was subsequently upheld by a majority of the Court of Appeal. This is disadvantageous for landowners, as this less restrictive interpretation means it may well be easier for the public to demonstrate the requisite use for a TVG.
Effect on landowners
These cases illustrate that landowners must be even more astute in their efforts to prevent registration. In particular, warning notices must apply to all the landowner’s private land. However, as the case of Betterment shows, if a landowner does take sufficient steps he should be able to oppose an application to register the land as a TVG successfully.