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. Use of the land for sports and
pastimes by local inhabitants was tolerated by the lord of the manor 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 a 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.
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
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.
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.
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.
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.
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.
19.
. Following the House of
Lords decision the provision of seating and other facilities is not in itself
sufficient to imply a grant of permission. It must be remembered that this case
involved local authority land where such provision would be expected.
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.
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.
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.
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, but only if the use is subsequently interrupted thus giving
a clear indication of permission. 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.
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.
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.
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 buyers
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.
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 landowners 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.