Town and Village Greens – Tee to Green
The recent Supreme Court decision of R (Lewis) –v- Redcar and Cleveland Borough Council ("Lewis") has brought into focus again the difficulties which landowners and developers face in preventing registration of land as a town or village green ("TVG").
Background
The Commons Act 2006 provides that an application can be made by any party for registration of land as a TVG if a significant number of the inhabitants of the locality, or a neighbourhood in the locality, have indulged ("as of right") in lawful sports and pastimes on land for a period of at least 20 years. The use does not need to be ongoing when the application is made, there is a two year period after the use ceases during which an application can be made for registration.
If land is registered as a TVG, it must be kept open for recreational use by the public. The land cannot be developed (save for minor works of construction in limited circumstances) unless alternative land (which must be suitable) can be offered in exchange for the TVG. Note there is an exclusion where the TVG is less than 200 sq.m. The registration of land as a TVG cannot be defeated by compulsory purchase nor is compensation available to the landowner as a result of registration.
The Decision
The decision in Lewis has made it easier for applicants to establish that activities have been indulged in "as of right". The case concerned Coatham Common which was owned by the local council. The land was used as a golf course (as part of the first and eighteenth holes and as a practice ground) by Cleveland Golf Club. The land was also used by local residents for recreational activities such as dog walking and children's play. The council wished to develop the land but some local residents made an application for the land to be registered as a TVG.
At the public inquiry, the Inspector found that although the local residents could establish use for the requisite 20 year period, the fact that they had overwhelmingly deferred to the use of the land by golfers (for example, by waiting for golfers to play a shot before they walked across the course) meant that the use was not "as of right".
The Court of Appeal agreed with the Inspector's decision and the matter found itself before the Supreme Court. The unanimous decision reached was that the land should be registered as a TVG. It was held that deferring to another's user did not preclude use of land "as of right". Land will be used in this way if it is not used by force, stealth or with the licence of the owner. When determining whether land is so used, how the use would appear to the owner of the land must be established. Here, it was held that a reasonable owner would conclude that the residents were asserting a right over the land. The deference shown to the golfers did not change this.
Prior to this case, deference was thought to assist a landowner who shares land with members of the public – for example, the use of school playing fields by members of the public was in deference to the main use of the land and was not "as of right". The decision in Lewis effectively means that deference alone is not sufficient to prove that the relevant use is not "as of right".
Implications for Landowners and Developers
Applications for registrations of TVGs are and will continue to be used by objectors to developments as a means of preventing and/or delaying the progress of a scheme. The Supreme Court made it clear in its decision in Lewis that its view was that the Commons Act 2006 does require reform given that those who devised the system had never contemplated that areas of open space, such as in this case, could end up being registered as TVG. The previous Government did indicate that consultation on the future of the legislation was required but the position is now unclear following the recent change of administration.
Until there is a change in the law, landowners who are concerned about possible registration of land as a TVG need to consider taking steps to prevent this from happening. The first step will be to stop public use of the site. This will trigger the two year period within which an application will need to be made for registration as a TVG and, accordingly, will provide an end date for uncertainty as to the status of the land. The downside, however, is that this may lead to the land being registered as TVG which is exactly what a landowner is seeking to avoid. To prevent public use, fencing is obviously the best option (although this may not be practical). Signage prohibiting or expressly permitting access is useful but will not be sufficient on its own.
Insurance cover against the potential risk is an option but this may be very expensive and require a number of preconditions to be fulfilled. Insurers know a risk when they see one and price accordingly!
On any site acquisition, all that can be done in terms of due diligence where it appears that there may be a TVG issue is to obtain as much information as possible from the seller as to the historical use of the site. Usual searches and enquires will assist but do not provide certainty. Where a risk has been identified, consideration should be given to exchanging a conditional contract on the basis of a completion following termination of the public rights and the expiry of the two year application period (this may not be attractive in practice) or the completion of the purchase with an option requiring the seller to reacquire the land should it be registered as a TVG (another complicated and far from appealing option).
16/06/10
Chris Ogle | 
