Close your eyes and picture a traditional English village green. Tranquil. Families feeding the ducks on the village pond. Children gambolling on the greensward. What about HGVs whizzing by or golf balls zipping overhead?
The fact is that many legally established village greens don’t match the traditional image at all. They are not always green! They are areas of land, large and small, in the town, at the town’s edge and in the country, that local people have used for lawful recreation – such as playing informal sport, walking the dog, pick-nicking and just enjoying the scenery – ‘as of right’ for more than 20 years.
What the law means by ‘as of right’ is that they haven’t asked for nor been given permission to do it, nor have they been told that they mustn’t do it. They know that the land isn’t theirs. They may or may not know whose it is but, frankly, they don’t care. They probably assume that this is how the land has always been enjoyed, or at least for more than 20 years, and why shouldn’t it continue. Importantly, they behave in a way that would cause any sensible landowner to conclude that they clearly thought that they had the right to be there.
Over the years, however, village greens have acquired a fearsome reputation among developers and landowners. .
The law was tidied up by Parliament in the Commons Act 2006, responding to problems that the courts had identified with the previous legislation. A successful application to register land as a village green will effectively scupper any hopes of future development on it.
Numerous applications have been made by local communities with that objective in mind. Some have undoubtedly been spurious, with no evidential support. Others have been wholly genuine. Some of those have been turned down - to the dismay of the applicant - and others have succeeded - to the equal, if not greater, dismay of the landowner.
Either way, the courts have beckoned and a lot of court time has been taken up over recent years in looking at what exactly is meant by ‘as of right’ and what exactly has to be proven in order to get a bit of land registered as village green. Usually, there is quite a lot at stake.
Most recently, in March this year the new Supreme Court came to a unanimous decision to overturn the Court of Appeal and support the registration of some hotly disputed land near Redcar.
Local people had been using the land, owned by the council and used by a golf club, for well in excess of 20 years. The council wanted the land developed and the developers were ready to go. The golf club closed in anticipation of the land being developed.. However, the locals applied to register it as village green. The council set up a public inquiry during which the locals accepted in evidence that they usually gave way when they saw golfers taking a swing in their direction, letting them play through before they continued on with their walk. That, said the council meant that they could not therefore have been exercising any sort of right.
The application was refused. The locals were a determined bunch. They took the matter to the courts. The council’s view was upheld through the next two levels of the judicial process before it got to the Supreme Court.
Nonsense, said their Lordships. The fact that local people acted with courtesy (some may even say with common sense) to the golfers didn’t hide the fact that they were there regularly, quite a lot of them, walking across the fairways and (occasionally) not cleaning up after their dogs. Any landowner seeing that should have recognised that they were asserting a right and should have taken steps to stop it had he wished to do so. They ordered that the land be registered as village green.
That was the fourth time in 10 years that the highest court has overturned decisions of the Court of Appeal that would have resulted in it being much harder to get land registered as village green.
It has to be accepted that not every village green application is well-founded and that not all of those that are will necessarily succeed. So much depends upon the quality of the evidence that can be put together. Landowners and developers also have rights, including not to be beset by ultimately hopeless attempts to block or delay development.
However, Parliament and the court at the highest level have once again made it clear that legitimate applications to register land as village green will be supported.
The author, Stephen Bowden, is a planning lawyer and partner in Dutton Gregory Solicitors. He can be contacted on 01962 844333 or via s.bowden@duttongregory.co.uk
