Think of a village green and you may picture a piece of land in the middle of a village where children play, families picnic and perhaps where the village fête is held every year. But the Commons Act 2006 defines town and village greens much more widely, so that they can include private land, which many people would not usually regard as a town or village green. This can lead to landowners being prevented from developing their land and effectively being deprived of its use.
The effect of registration of land as a town or village green under the Act is that it would be a criminal offence to erect buildings on that land. As a result town or village green applications are being used increasingly by objectors opposed to development of pieces of land as a means by which to try and thwart the proposed development of that land.
However, if land does become registered as a town or village green, not only would any development of that land be prevented, but it would also be a criminal offence to enclose the land by erecting or possibly even repairing fences on or around it. This could make the grazing of stock and the carrying out of other farming activities impossible.
Under the Commons Act land can be registered as a town or village green if it can be proved that it has been used by a significant number of people in a locality or neighbourhood, as of right, for lawful sports and pastimes for at least 20 years. Use as of right means use without force or secrecy and without the permission of the landowner. Various court decisions have found that lawful sports and pastimes include dog walking, playing children’s games, kite flying, blackberry picking and tobogganing. Most landowners would consider people carrying out such activities on their land as trespassers. Land on the edge of a town or village – land which may well be earmarked for development – is often prone to this type of urban fringe trespass and is therefore particularly vulnerable to registration as a town or village green.
Help for landowners, however, may well be on the way. The Government’s Growth and Infrastructure Bill, which had its second reading in the House of Commons on 5 November, contains a number of provisions aimed at restricting applications for registration of town or village greens, especially by applicants whose sole purpose is to prevent development of land. The provisions, if passed into law, will prevent town or village green applications from being made in respect of any land that is already the subject of a planning application or which is already identified in a local authority’s development plan or draft development plan as land for potential development. They will also enable landowners to protect land from town or village green applications by depositing with the relevant local authority a map of the land and a prescribed form of statement. If done in time, the effect of this will be to bring to an end any period during which people may allege they have used the land as of right for lawful sports and pastimes before the necessary 20 years have elapsed.
In the meantime owners of land who wish to avoid an application for registration should make it clear that any trespassers using their land are not doing so as of right. This can be done by making sure the land is well fenced; erecting prominent “Private Property – Keep Out” type signs or signs granting permission to use the land for lawful sports and pastimes until further notice; challenging anyone found trespassing or keeping a record of what has been done to deter or expel trespassers and when.
A landowner faced with an application for registration will need to prove in a public enquiry that any alleged use of the land for lawful sports or pastimes was not as of right. This can be done by showing that steps such as those mentioned above were taken. Helpful proof of this can sometimes come from unexpected sources. A hapless witness at one such village green public enquiry had made a statement asserting that he was not aware of anyone ever trying to stop people from using the land for sports and pastimes. However, he had forgotten that some years earlier, after a recent snowfall, he had written to the local newspaper condemning the farmer who owned the land for spreading manure on the land in order to prevent children from tobogganing on it – forgotten that is until confronted, on the witness stand, with a copy of the press cutting.
About the author
Robert Twigg has more than 20 years’ commercial property experience with some of the largest law firms in South Wales, including Eversheds, Morgan Cole and Capital Law. During that time I have handled the sales of many Welsh industrial estates and have been involved in several large-scale development projects.
Robert deals with the acquisition and sale of all types of land and commercial property, the acquisition and sale of investment properties – individually and as portfolios, landlord and tenant and property portfolio management, property development and secured lending, as well as advising on farm business tenancies and other agricultural matters.
Born and brought up on a farm, Robert enjoys hill walking, skiing, body boarding and generally making the most of the great outdoors with his wife and son.
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