We are less than half way through 2014 and three significant decisions regarding Town and Village Greens (TVGs) have been made, two of which should cause landowners and developers to look again at land that has been registered as TVG. 

Two decisions of the Supreme Court made on 5 February and 21 May taken together raise questions regarding evidence of use, type of use and timing of applications to rectify the register which effectively delete TVG registrations. 

The first decision concerned two applications to rectify the register, effectively to delete the TVG registrations[1].  Both applications were made after a significant period of time had elapsed since TVG registration; 4 and a half years in respect of the Betterment case and a staggering period of almost 13 years in the Paddico case.  Prejudice was considered a central issue to the decision as to whether rectification of the register should take place – in both cases the Supreme Court decided rectification of the register should take place.  The four key questions considered were whether rectification would cause prejudice to:-

  1. the local inhabitants;
  2. other individuals who had made decisions they would not have otherwise have made on the basis that the land was registered as TVG;
  3. public authorities and the public they serve.  The authorities may also have made decisions in reliance on the registrations which they would not have made without it.  The Court gave a specific example of the local planning authority having granted planning permission for development on other land because the land registered as TVG was not available; and lastly
  4. the fair hearing of the matter.  The longer the lapse of time since the original TVG registration the more difficult it may be to have a fair trial of the issues.  A claim to rectify the register is dealt with as a re-hearing of the evidence which may cause difficulty if any of the witnesses have moved away or died.

On the facts of the two cases the Court decided there was no significant prejudice to the TVG applicants and in fact the applicants had had use of the land as TVG when they should not have had that benefit.  In respect of the lapse of time and prejudice, it appears that the date of knowledge by the landowner is significant.  As long as the landowner doesn’t delay in seeking rectification, all other matters being equal, such applicants should have a reasonable chance of success; the Courts will not however be sympathetic where a landowner “has slept upon his right”.

The second decision[2] is one to stop practitioners in their tracks.  The Supreme Court considered the issue of use and whether the use was “as of right” or “by right” .  If the former, a TVG claim may succeed if all other criteria are fulfilled.  If the latter, the claim will fail as the use will be by the public at large.  In this case of Barkas, the Court decided the use was “by right” and the claim failed.  In addition, the Court also overturned the decision of the House of Lords in Beresford, a decision made in 2003[3].  That case has been relied upon in respect of whether or not a licence to use the land had been granted.  The evidence before the Court in 2003 was that the land was in public ownership, was set out with seating and was maintained by the Council.  The Supreme Court has now stated in terms that the approach of the Council and the Court at first instance was “unimpeachable in common sense and law” and the TVG claim should have failed on that basis.  As such, those TVG decisions based upon Beresford made since 2003 should be considered for review and, if appropriate, applications made to rectify the register thereby freeing land for potential development.