Land which has been used by a significant number of local people for lawful sports and pastimes, as of right, for at least twenty years, may be registered as a town or village green, which prevents it from being developed. In a recent case, a purchaser successfully applied to have a registration cancelled nine years after it had been made, by showing that the use of the land had not been “as of right”.
The application for registration had been made in 1997 and the purchaser succeeded in showing that until about 1984 the owner had been trying to keep the public off the site by repairing broken fences and gaps in hedges and by erecting signs warning trespassers to keep out. The court held that meant the use had been contentious and therefore not “as of right”.
The test is whether the circumstances are such as to indicate to the persons using the land, or a reasonable person knowing the relevant circumstances, that the owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action. For this purpose a use is contentious if the owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user.
The fact the use was not as of right is not enough to have the registration cancelled. The court must also be satisfied that it is “just” to rectify the register. In this case the court decided that it was just, because the registration substantially reduced the value of the land. The court reached that conclusion even though the current owner had bought the land knowing it was registered and that factor had been reflected in the purchase price.
Source: Betterment Properties (Weymouth) Ltd v Dorset County Council  EWHC 3045 (Ch).