Since we last posted on common land and town and village greens, there have been new cases. Given the impact common land can have on developments, applications to register land as a town or village green are often appealed so it can take a long time for clear legal principles to emerge. We have pulled together the latest in this post.
The Commons Act 2006 outlines the right to have a piece of land registered as a town or village green (‘TVG’), provided that “a significant number of the inhabitants of any locality, or 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”.
Beaches – can they be TVG’s?
- In 2015, the Supreme Court ruled that the beach in Newhaven Port v East Sussex should not be registered as a TVG, contrary to the Court of Appeal in 2013.
- The important question which the Supreme Court had to address, was whether the use of the land by the public was ‘as of right’ and therefore capable of registration as a TVG or ‘by right’ and therefore not capable of such registration. To register as a TVG, the right must have come through use by the local community (‘as of right’) and not by way of specific permission from the landowner (‘by right’).
- In Newhaven, the rights exercised by the local inhabitants were consistent with the byelaws which were incompatible with TVG use. Landowners took this as good news as it confirmed that use ‘by right’ would not qualify for registration as a TVG. Developers and landowners were hopeful that they could rely on a statutory purpose to prevent a successful TVG application.
Statutory purpose and use as common land
- Landowners’ hopes were rather crushed in the first case to deal with statutory incompatibility since the Newhaven case. In June 2016, the High Court in Lancashire County Council v Secretary of State for Environment Food and Rural Affairs held that statutory purpose alone is not sufficient to defeat a TVG application. In that case, undeveloped land adjoining a primary school could nonetheless be registered as a TVG, as the educational functions could still be carried out even though the public had a right to use the land (in contrast to Newhaven where use as a TVG was incompatible with the Port Authority’s statutory powers and duties of operating a working harbour). This is High Court and not part of the main judgment but shows how complex the argument may be when a common right is inconsistent with the statutory purpose of the land.
- More recently, in R (on the application of NHS Property Services Ltd) v Surrey County Council, a decision to register land belonging to the NHS as a TVG was overturned. The land was held for defined statutory health-related purposes and the erection of buildings or facilities to provide treatment would plainly conflict with recreational use. It was also held that Article 6 of the European Convention on Human Rights and the common law require the giving of reasons where a TVG application is granted.
What can landowners do?
- Not much has changed since we last posted but public authorities may wish to consider whether their land is held pursuant to a specific statutory purpose which may be incompatible with TVG use. In summary, landowners can consider doing the following to protect their position:
- It is now clear that TVGs are capable of existing hand in hand with statutory purposes. The statutory purpose must be incompatible with TVG use in order to defeat a TVG application. The recent caselaw appears to demonstrate a common sense approach by the courts to a sensitive and controversial issue. However, it seems that the law is far from settled in this area.
- 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.