Over recent years there has been concern caused to owners of land that might be classified as a town or village green, with uncertainty as to what rights others may have over it and what impact that might have on future development of the land.

To summarise, we have issues relating to rights to roam under the Countryside and Rights of Way Act 2000, granting rights of access on foot to all open land which falls within one of the five classes of land set out in the Act, including registered commons. Although to date the provisions in this Act seem to have caused few problems between landowners and access-users, it is important to undertake due diligence when purchasing land for development to determine whether rights to roam exist over it.

There have been problems relating to vehicular rights of way over common land and village greens arising from cases where vehicular rights of way by long user were held to be illegal if exercised without the landowner’s permission. This led to many landowners coming alive to the money making possibilities of charging for the granting of permission for rights of way. Statutory provisions were implemented to protect householders and there was subsequently a decision by the House of Lords in Bakewell Management Ltd v Brandwood (2004) which allowed rights to be acquired by prescription if the landowner could authorise the use. However the new Commons Act 2006 has revoked the relevant statutory provisions and further doubts have been cast on the ability for householders to gain prescriptive rights of access over village greens.

There has also been a rise in applications to register land as a town or village green (TVG), with a deluge of case law and to add salt to the wounds, we now have the Commons Act 2006, some important parts of which came into force in April of this year. This Act changes the definition of a TVG and sets out qualifying circumstances in which land can be newly registered as a TVG arguably making it easier to register land as a TVG. The rules are very complex but in general terms the Act allows any person to apply for registration of a TVG if a significant number of inhabitants of any locality (or even of a neighbourhood within a locality) have indulged as of right (that is, without force, secrecy or permission) in lawful sports and pastimes on the land for a period of at least 20 years. Once registered as a TVG, it is a criminal offence to interrupt the use and enjoyment of the land, thus preventing it from being developed and used for commercial purposes.

Imagine a typical scenario where land is on the urban fringes that has long term hope value for development. The landowner (often an institution), has no immediate use for the land and neglects it. The land begins to be used by locals for, say, walking their dogs or children playing football. The land may then be earmarked for development by the landowner and planning permission granted. There is local opposition to the proposed development and so an application is made to register the land as a TVG. If successful, the land cannot then be developed.

The biggest potential problem for landowners, or prospective landowners is that there is a transitional period during which applications to register a TVG can be made. The rules are complicated but in short, an application can be made for a period up to 2 years following the ending of the use of the land by the local inhabitants, if that use ceased before 6 April 2007. However, if the use ceased after that date, then the period for making an application for land as a TVG is extended to 5 years.

If landowners and developers decide to proceed with development notwithstanding the risk of registration, DEFRA has suggested that if the land is subsequently registered as a TVG, the buildings may be ordered to be removed to enable to exercise of the recreational rights over the land. Therefore, any landowner risks a stop being put on future development within those timeframes and a potential purchaser of development land needs to ask some very detailed questions of its seller to determine whether the land may have been used for lawful sports and/or pastimes.