REGISTRATION OF NEW TOWN OR VILLAGE GREENS                         Appendix A

 

BACKGROUND

 

History of Village Greens

 

1.                  Village greens have their origins in the manorial system introduced by the Norman Conquest in 1066.  Most village greens may at one time have formed part of open uncultivated and unoccupied land belonging to a manor or estate. The lord of the manor tolerated use of the land for sports and pastimes by local inhabitants and over many years, the local people could claim rights to use the land for recreation.

 

2.                  The traditional green was a communal area where people could gather to play games, dance and exercise and often served as a secure place where livestock could be gathered and safely grazed during times of unrest.  Greens were also the location for services such the village well or where justice was dispensed in the village stocks. 

 

3.                  During the Second World War, many commons were ploughed up for agriculture and after the War growing ownership of cars and demand for housing brought pressure to bear on village greens. The increasing recreational needs of the public were recognised and a Royal Commission was established to look at any changes that could be introduced to balance the needs of the owners of the land and the enjoyment of the public.  Some of the recommendations of the Commission were implemented by the Commons Registration Act 1965.

 

THE COMMONS REGISTRATION ACT 1965

 

4.                  Although village greens have been recognised in law for centuries, until the Commons Registration Act 1965 there was no statutory definition of the classes of land involved and no strict common law meaning.  The 1965 Act for the first time provided a scheme for registration of town and village greens as a distinct category of land separate from commons.

 

5.                  Under the 1965 Act, the Council was appointed as the Registration Authority for the purposes of compiling and maintaining the registers of Common Land and Village Greens.  The compiling of the registers depended upon interested parties making an application to register any eligible land.  Anyone could make an application regardless of whether they had an interest in the land. The application was advertised and if no objections were received the registration automatically became final.  Any applications the subject of unresolved objections or questions of ownership or rights were referred to the Commons Commissioner for decision.

 

6.                  The 1965 Act and regulations provided that village greens had to be registered within five years.  The statutory deadline was 2 January 1970 and any existing town or village greens not registered by that date ceased to be a village green for registration purposes.  However, Section 13 of the 1965 Act allowed for the amendment of the village green registers where any land became a village green after the above mandatory registration period ended.

 

NEW VILLAGE GREENS

 

Definition

 

7.                  In Section 22 the 1965 Act, one of the definitions of a village green is land “on which the inhabitants of any locality have indulged in lawful sports and pastimes as of right for not less than twenty years”.  As more than twenty years has elapsed since the registers closed in 1970, sufficient time has now accrued to enable applications to be made for the registration of land as a new green on the basis of twenty years use for recreation by the local inhabitants.  The twenty years would have to run from some point after the registers closed so that the earliest date on which the land could acquire village green status would be January 1990.

 

Procedure for registration

 

8.                  The procedure for registration is laid down in the Commons Registration (New Land) Regulations 1969.  As with the original exercise, anyone can make an application to register any eligible land. However, unlike the original exercise it is left to the Council, as registration authority, to determine the application.

 

9.                  The application is made on a prescribed form and must be accompanied by a statutory declaration.  The Council, once it is satisfied the application is in order, is under a duty to advertise it in the local newspaper and notify the landowner (if known) and any person known to have an interest in the land (ie tenant, lessee or occupier).

 

10.             A period of six weeks is allowed for any objections to be lodged.  If any objections are received, the applicant is given the opportunity to comment on them.  At the end of the consultation process, the evidence submitted for and against the application has to be considered and a decision taken on whether the application meets the criterion for registration.

 

Land capable of registration

 

11.             The popular view of a typical green is a small area of open land in the middle of a village where the children run around and where the village cricket team holds its matches.  However, village greens do not need to be traditional picturesque areas.  A town or village green depends on the rights exercisable over the land rather than its location.  Thus, any land used by people from the locality for informal recreation can become a town or village green. 

 

12.             The land can be derelict scrubland in a city centre, a brown field site or a field formerly used for grazing.  When the 1965 Act was passed this land may not have qualified for registration but since 1970 the land may have become subject to the qualifying uses and therefore now satisfy the requirements for registration. 

 

Legal Requirements

 

13.             For the application to succeed the applicant has to show that the land has been used by (1) local inhabitants (2) for lawful sports and pastimes (3) as of right (4) for not less than 20 years. 

 

14.             This is a developing area of law. In addition to an amendment to the definition of a village green in the Countryside and Rights of Way Act 2000, there have been some recent court cases that have clarified the meaning of “local inhabitants”, “lawful sports and pastimes” and “as of right”.  These judgements have significantly changed the criterion by which registration authorities determine applications for new village greens.

 

Recent relevant legislation and precedents

 

Countryside and Rights of Way Act 2000

 

15.             Local inhabitants: Section 98 of the 2000 Act amended the definition of a village green. The existing definition, as amended, includes land on which “ a significant number of the inhabitants of any locality, or of any neighbourhood within a locality” have used the land for recreation. This amendment gives a more flexible definition so that now as long as a sufficient number of the people using the land come from in or around the residential area in which the land is situated, it is capable of registration. 

 

“Sunningwell” case

 

16.             Local inhabitants: Provided there is sufficient evidence to show the use is predominantly by local inhabitants, the fact that some members of the public also use the land will not defeat the claim.

 

17.             Lawful sports and pastimes: Activities do not need to be either organised or have a communal element.  Modern activities such as dog walking, kite flying, solitary or family activities are sufficient to justify registration.

 

18.             As of right: The applicant only needs to provide evidence that the land has been used without force without secrecy and without permission.  It swept away the previous understanding of the law that for users to demonstrate they had indulged in lawful sports and pastimes “as of right” they also had to prove that they and only they (ie not the public at large) had the right to do so. Also, the fact that the owner knows of the use and does nothing to prevent it does not amount to permission.  The toleration of use by the owner cannot prevent use as of right for the purposes of prescription.

 

“Sunderland” case

 

19.             As of right”: Use cannot be claimed as of right if it is apparent from the circumstances that the use has not simply been tolerated but encouraged.  Permission involves some positive act by the owner and if the use of the land is encouraged by the owner (ie by the provision of facilities) then a licence can be implied.

 

“Staffordshire’ Case

 

20.             Local inhabitants: “Significant does not have to be a considerable number it only has to be shown that the use is sufficient to indicate that it is in general used by the local community.

 

Evidence required for registration

 

21.             The burden of proof lies with the person seeking the registration.  He or she has to properly prove that the land meets all four parts of the criterion for registration as a village green.  If any one part cannot be met then the application will fail.

 

Local inhabitants

 

22.             The meaning of the words “local inhabitants” is not defined in the 1965 Act or the 1969 Regulations.  Following the Sunningwell case, it is now a question of fact in each case as to the extent of the relevant locality (ie a housing estate could be acceptable).  The applicant is required to show the recreational use of the land is predominantly, but not exclusively, by people who live in that locality.  However, although occasional use by persons other than local inhabitants will not prevent the recognition of a right for local inhabitants, a right cannot be claimed for the public at large for the purposes of a village green.

 

Lawful sports and pastimes

 

23.             The types of activity that would constitute “lawful sports and pastimes” include formal sports and organised events such as football, cricket, fetes and bonfires.  In addition, informal modern activities such as walking the dog, strolling, birdwatching, kite flying or just sitting and idling have now been accepted as being as relevant as the more traditional ones. However, it must be an activity that could properly be called a sport or pastime  (ie walking along a path to get from a to b would not in itself amount to a sport or pastime).  If the applicant can provide evidence of an established pattern of recreational use and the use is not trivial or sporadic, it does not matter the types of lawful sports and pastimes indulged in.

 

As of right

 

24.             For user to be as of right the applicant must show that the recreational use of the land by local people has been (a) without force, (b) without secrecy, and (c) without permission.

 

(a)               Without force: there must be unrestricted access for the entire twenty-year period.  If access is obtained by climbing over or breaking down fences and tolerated only in so far as the landowner could not prevent such access then the use is not as of right.

 

(b)               Without secrecy:  the use must not be exercised in secret but carried out openly.  If the use takes place only at night under cover of darkness then the use is not as of right.

 

(c)               Without permission:  The use must be without the permission of the owner. Permission does not have to be in writing or spoken, it can be implied.  If the owner provides facilities such as seating to encourage use of the land then this would imply that the owner is giving permission for that use.  However, if the owner merely does nothing to prevent the use of the land for recreational activities, even if he knows about the activities, his toleration would not be sufficient to imply he had given permission for such use. 

 

Not less than twenty years

 

25.             The use for lawful sports and pastimes must have occurred for at least twenty years.  Any evidence that the land has not been used or been available for such use for the required twenty-year period will destroy the claim.   

 

Effect of registration

 

26.             The purpose of the 1965 Act, amongst other things, was to give legal protection to the greens and safeguard them from development. Once registered, it was intended that the green would remain available for continued enjoyment by the inhabitants for recreational use.   Registration does not in itself confer any recreational rights that did not exist prior to registration.  The practical effect of registration is only to confirm the existence of such rights.  Consequently, a registered village green is held in the same way as any other land and, although nothing should be done which would interfere with the lawful recreational activities of the local inhabitants, the owner is not required to maintain it in a suitable state for such activities.  There is nothing to prevent the owner from selling a green but a transfer of ownership does not affect the right to use it for recreation.

 

27.             A registered green also enjoys the protection of two 19th Century Acts that prevent interference with or encroachment on village greens.  The combined provisions of Section 12 of the Inclosure Act 1857 and Section 29 of the Commons Act 1876 make it an offence to undertake any activities that injure a green or interrupt its use as a place for exercise.  However there is some ambiguity over whether Section 12 and 29 apply to new greens established after 1970 through 20 years use by local inhabitants. This matter has not been tested in the courts so to date there is no case law that has determined whether or not these new village greens will have the same level of protection as the ancient greens. The government department having general responsibility for the environment (DEFRA) is proposing to end this ambiguity so as to ensure the consistent protection of Sections 12 and 29 for all greens but as this will require primary legislation it will be some time in the future.  In the meantime, any land registered as a village green is effectively un-developable.

 

THE COUNCILS ROLE UNDER THE 1965 ACT

 

28.             The primary duty of the Council, as registration authority, is to maintain the registers and related maps of common land and village greens.  When a property is sold, the buyer’s solicitor can apply for a search to be made of the relevant register and the Council provides a certificate which confirms if the land is registered as common land or village green and what rights, if any are registered.

 

29.             The Council is also responsible for any amendments to the registers. Consequently, since the window of opportunity has opened for applications to register new village greens under Section 13 of the 1965 Act, it is the Councils duty to receive, advertise and determine such applications.

 

30.             Once an application is received, unless it is defective, the Council must pursue the full decision process even on those applications which, on examination of the evidence, do not establish a reasonable prima facia case for registration.

 

31.             No procedure has been has been laid down in the 1965 Act or its subsequent regulations as to how the applications should be determined.  This is left entirely to the registration authority.  As many applications are made with a view to preventing development and the Council is both registration authority and planning authority it is the view of the Open Spaces Society that best practice would be to refer all applications to a non-statutory public inquiry before an independent inspector (see also note on Human Rights Act 1998 below).  However, an inspector can only make a recommendation, it is the responsibility of the Council to decide whether the application is accepted or rejected.

 

32.             The application must be determined strictly on legal issues and evidence.  If, on the evidence submitted, the criterion for registration is proved then the application must be accepted.  If the application fails to meet the criterion then the application must be rejected.

 

33.             If the application is accepted, the village green register is amended and the land entered in the register as a new village green.  Any person aggrieved by the inclusion of any land by amendment to the register under section 13 of the 1965 Act has a right of appeal to the Chancery Division of the High Court.

 

34.             If the application is rejected, the applicant is informed of the reason for the rejection. There is no formal right of appeal against a refusal to amend the register but the applicant can seek a Judicial Review if he or she believes the decision to be wrong in law or procedurally improper.

 

HUMAN RIGHTS ACT 1988

 

35.             A matter to be considered is whether the procedure for determination of the applications is compatible with the Articles of the European Convention for the purposes of the Human Rights Act 1998.

 

36.             The Human Rights Act potentially impacts on a village green application in two ways:

 

(a)               Article 6: Fair hearings in determining civil rights

Council owned land: It could be questioned whether the applicants rights can be properly determined by the Council where it owns the land the subject of the application.  The Council would be determining issues on its own land where it could have an interest in disposing of that land.  Consequently given its dual role as registration authority and owner, the Council may appear not to be independent or impartial as required by Article 6.

 

(b)               Article 1 of Protocol 1: Protection of Property

Privately owned land: The registration of privately owned land as village green is destructive of the value of the land to the owner (see effects of registration paragraph 29 and 30 above). This could be seen as a breach of the landowner’s rights under Article 1 of Protocol 1 since it would deprive him of the value of his land.

 

37.             The Council is discharging a statutory function and provided proper procedure is followed and each application is determined on legal issues and evidence there is no violation of the Articles of the Convention for the following reasons:

 

(a)               Any decision taken by the Council is subject to the subsequent control of judicial review as regards the lawfulness and fairness of the decision making process and this constitutes sufficient compliance with the convention; and

 

(b)               Primary legislation, namely the Commons Registration Act 1965, requires the Council to determine village green applications.

 

38.             Nevertheless the Council does have discretion in the procedure for determining applications and where there is obvious conflicting or disputed evidence it would be good practice for Members to seek the advice and recommendations of an independent inspector.