Since we posted on the effects of The Commons Act 2006 back in June 2009 there have been three cases. Many land owners will now find it harder to resist an application for registration of land as a town or village green and will have to live with the restrictions that registration creates.

The recent cases have been decided in favour of the residents who claim the right to use the land as a green and, as a result, developers of open land must face up to the issue at an early stage.

By way of a brief recap, under the provisions of The Commons Act 2006, local inhabitants may apply to register land as a town or village green if there is land on which for not less than 20 years:

  • A significant number of inhabitants of any locality or of any neighbourhood within a locality
  • Have indulged in lawful sports and pastimes
  • As of right (not by force, stealth, or with the consent of the owner), and
  • continue to do so.

Developers and landowners will not have been pleased by the final outcome of Lewis, R v Redcar and Cleveland Borough Council where the Supreme Court overturned the lower courts' interpretation of the "as of right" test. This case involved other users (often walkers) deferring to the playing golfers when both were on the land. The decision was that the non-golfing users had been sensible and courteous when using the common and were asserting their rights. The local residents were entitled to submit an application to register the land as a green.

The erection of signs and notices stating there were no public rights of way over the land in question was not sufficient to defeat a claim where the land had been used for sports and pastimes in R v Oxfordshire County Council. The signs would only have been of use to defeat a claim for a right of way.

In the case of Leeds Group Plc v Leeds City Council it was held that the residents who can apply for registration could include those from a number of different neighbourhoods as well as residents from a single locality. This significantly widens the potential pool of applicants wishing to register land used as a green. The Court also held that, provided a significant number of the inhabitants of the locality or neighbourhood are among the users, it does not matter that many or even most come from elsewhere.

Measures you can take to prevent the registration of a town or village green

In addition to the tips set out in our previous blog, developers might consider doing the following:

  • As soon as you are aware that the land is being used for recreational purposes, erect clear signs which convey your objection to that particular activity
  • Erect a fence to enclose it from the local inhabitants
  • If such signs and fences are vandalised, make note of the date, and re-erect the signs and fences Consider taking legal action
  • Generally, you must be seen to be doing everything you can to prevent such use of your land, be persistent, and use proportionate measures to contest and interrupt the user.