PAPER A
Purpose
: for Information
Committee : REGULATORY
APPEALS COMMITTEE
Date : 29
MAY 2003
Title : APPLICATIONS
FOR REGISTRATION OF NEW TOWN OR VILLAGE GREENS
REPORT OF THE CHIEF EXECUTIVE OFFICER AND STRATEGIC DIRECTOR OF
CORPORATE SERVICES
1.
The
Isle of Wight Council is the Registration Authority for the purposes of the
Commons Registration Act 1965. As
Registration Authority, the Council is responsible for compiling and
maintaining the Registers of Common Land and Town or Villages Greens and for
any amendments to the Registers.
2.
In its role as Registration Authority, the Council has received four
applications for the registration of new town or village greens which are the
subject of separate reports as follows :
Paper B1 The former putting
green and adjoining land at Gurnard
Paper B2 The Esplanade and
land to the South at Gurnard
Paper B3 The Beach at Gurnard
Paper C Havenstreet
Recreation Ground Havenstreet
3.
The purpose of this report is to provide background information about
village greens. It is also to provide a
summary of the legal requirements for the registration of new village greens
under the 1965 Act for Members’ information and ease of reference when determining
the above applications.
4.
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.
5.
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 as the village well or where justice was dispensed in the village
stocks.
6.
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.
7.
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.
8.
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.
9.
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 initial registration period ended.
NEW VILLAGE
GREENS
10.
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 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.
11.
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.
12.
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).
13.
A period of six weeks is allowed for 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 satisfies the statutory requirements
for registration.
14.
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.
15.
Such 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 may therefore now satisfy the requirements for registration.
16.
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.
17.
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.
21.
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.
24.
The burden of proof lies with the person seeking the registration. He or she has to properly prove that the
land satisfies all four parts of the criterion for registration as a village
green namely that the land has been used by (1) a significant number of the
inhabitants of any locality or neighbourhood; (2) for lawful sports and
pastimes; (3) as of right; (4) for not less than twenty years. If any one part cannot be satisfied then the
application will fail.
25.
The meaning of the words “local inhabitants” is not defined in the 1965
Act or the 1969 Regulations. Following
the Sunningwell case and the amendment in Section 98 of the CROW Act 2000, 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 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.
26.
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). The applicant will need to provide evidence
of an established pattern of recreational use and the use should not be trivial
or sporadic.
27.
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.
28.
The use for lawful sports and pastimes must have occurred for at least
twenty years. Any evidence that the use
has been interrupted or the land has not been available for such use during the
required twenty year period will destroy the claim.
29.
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 any right to use it for recreation.
30.
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 this will require primary legislation and will be some time in
the future. In the meantime, any land
registered as a village green is effectively un-developable.
31.
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.
32.
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.
33.
Once an application is received, unless it is defective, it appears the
Council must pursue the full decision process even on those applications which,
on examination of the evidence, do not appear to establish a reasonable prima
facia case for registration.
34.
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
such applications should be referred to a non-statutory public inquiry before
an independent inspector (see also Human Rights Act 1998 paragraphs 38 to 44
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.
35.
The application must be determined strictly on legal issues and
evidence. The Council’s sole function
as registration authority is to consider the evidence for and against the
application. If having done so, the
application satisfies the relevant statutory requirements then the Council may
accept the application, but if the statutory requirements are not satisfied,
then the Council has no option but to reject the application.
36.
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. The High Court may quash or amend the
registration if it deems just.
37.
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.
38. 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.
39. 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.
40. The Council is discharging a statutory function and provided the proper procedure is followed and each application is determined on legal issues and evidence there would appear to be 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 would constitute sufficient compliance with the convention; and
(b) Primary legislation, namely the Commons Registration Act 1965, requires the Council to determine village green applications.
41. There is no express provision in the 1965 Act or 1969 Regulations for a public inquiry to be held automatically. The Council, as Registration Authority, has general discretion to hold a non-statutory public inquiry to hear the evidence, but the ultimate decision to accept or reject the application remains with the Council.
42. Nevertheless, where there is obvious conflicting or disputed evidence it would be good practice to seek the advice and recommendations of an independent inspector experienced in this branch of law or cause a non-statutory public inquiry to be held.
43. It is recommended that a public inquiry is appropriate in the following circumstances:
(a) Where the application relates to privately owned land and there is a serious dispute between the applicant and landowner about the evidence of use which could influence the determination of the application, particularly where the registration would have a serious effect on the landowner.
(b) Where the application relates to Council owned land or the Council has a pecuniary interest in the land and there is a serious factual dispute as to evidence.
44. However, where it is not a dispute as to fact but only a question of law, the decision, would not have any implications under the Human Rights Act.
45.
That the contents
of the report be noted.
46. Legislation
Commons Registration (New Land)
Regulations 1969
Human Rights Act 1998
Countryside and Rights of Way
Act 2000
47. Case Law
R v Oxfordshire County Council
Ex Parte Sunningwell Parish Council (1999) 3A11ER385 (HL)
R v Sunderland City Council Ex
Parte Beresford (2001) 32EG86 (CS)
R v Staffordshire County
Council Ex Parte Alfred McAlpine Homes (2002) EWCH76 (Admin)
Contact Point :Vivien Mann, F 3209
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Chief Executive Officer and
Strategic Director of Corporate
Services