The village green – it’s not always greener

The Supreme Court's decision in Redcar v Cleveland has brought the thorny issue of village green applications to the fore. Pamela Chesterman outlines some of the strategies that local authorities can adopt for dealing with such claims.

With increasing hoards converging on city centre developments in search of a close proximity to trendy wine bars and the high street shops, one would hardly expect the Commons Act 2006 to be relevant in 2010.

An Act predominantly regulating the use of communal land, its provisions conjure up the quaint notions of open spaces and village greens that seem at odds with our increasingly city-centric society. Yet the use of the Commons Act, and particularly its provisions regarding village green applications, has steadily been coming to the fore for some time now. The landmark case of Redcar v Cleveland this year has only served to consolidate village green applications as the unlikely hot topic of planning law.

Local planning authorities have long been bound by duties to ensure that green spaces within their boundaries are maintained for public use, which extends to verges alongside roads and small strips of grassy land between properties. But recently, these local planning authorities have seen an increase of applications by groups of individuals (helped along by savvy organisations) to register areas of open spaces as village greens. There is no restriction on the size or location of any such area, so long as the person claiming village green status can satisfy the test under the Commons Act 2006.

The test under Section 15 of the Act requires that the use of the land has occurred over a 20-year period by local inhabitants and the use being asserted must have been ‘as of right’ which means not by stealth, nor force, nor by permission of the landowner.

The phrasing of ‘local inhabitants’ will require the application to include evidence of use by more than one person, but there is nothing in the Act that prescribes particular numbers. Arguably, if there are only five local inhabitants and they can satisfy the rest of the test, then a village green could be registered.

The 20 years need not be continuous but the period of use should be frequented over a period of 20 years. Applications for a yearly fete or bonfire have been successful, even where that use relates to only one day a year.

Applications do not usually fail or succeed on these first two elements, but it is the three-limbed test to show whether the use was ‘as of right’ that causes the real problems.

Previously, it has been sufficient to erect signs stating that the land was private property to disprove the inhabitants’ claim that they had a right to the land, but signs were usually only erected at formal entrance points so where the land was used for recreational purposes – not necessarily those proposed by the landowner – then the signs may never have been viewed by the users.

The Redcar case heard in March this year only added to the ambiguity of the remits for village green status. Both the High Court and Court of Appeal judges found that the land previously used as a golf course (although that use had ceased before the claim for village green status had been issued) ought not to be registered as village green as the users had always deferred to the golfers and therefore the use could not be asserted as of right.

However, the Supreme Court took a more commonsense approach and claimed that the users who were claiming village green status had used the land without force, in the open, without permission from the landowner. Their deference to golf users during their hours of use was mere courtesy which would be extended to anyone using any land at any time, and so the village green application was allowed.

Redcar had seemed to be the saving grace to many a spurious application for village green status, even from people who had merely walked their dog on a couple of occasions across an empty piece of land which was then subject to a planning application for a block of flats next to their home. However, when the Supreme Court has reneged on the ruling of both the High Court and the Court of Appeal, it seems clear that even where the landowner can demonstrate a predominant use – as in Redcar – this alone will not be sufficient to defeat a claim for village green status.

It seems that the best way for councils to protect themselves against possible village green claims could be to erect more signage and ensure it is appropriately maintained, keeping signs obvious for all users. Fencing erected around the boundary of land and wardens or security guards alerting anyone attempting to enter that it is private property and not open for public use may also assist in defeating a claim.

Councils are already required to consider revisions to their local plans or unitary development plans through the local development framework, and this might be an opportune time to consider whether any land could be voluntarily registered as a village green. Volunteering to register one area of village green may in some circumstances be enough to stop an application to register another area, as it offers an alternative to inhabitants.

Where voluntary registration is not an option, it is imperative that the council understands who uses the land. The guidance note to accompany PPG17 (which remains the accompanying document to the new policy PPS17: Sports and Recreation) suggests that this should be part of councils’ assessments that they must do anyway to regularly update other statistical entries on their records.

Consultation with residents may also be a useful tool in order to keep residents advised and happy that the level of good quality green/open space available to use within their area will be retained and where possible improved.

Contributions by developers through S106 agreements are often required in order to improve local public realm. It would be possible to use such monies towards a larger green initiative, perhaps specifically with the view to provide areas akin to village greens that can be used all year round by the general public. This would fit in neatly with the new government’s proposals for localism, whereby local authorities look first to their residents for proactive involvement in order to develop their areas in accordance with local demand and need.

If an application cannot be defeated and the council decides to register the claimed land as a village green, then it might be possible to restrict the use for it to that which has been proven to have existed for 20 years. Therefore if evidence provided as a part of a village green claim related only to dog walking, then it is only fair and reasonable to accept dog walking as a village green use but to restrict future use to dog walking only.

The Supreme Court commented on this potential but failed to properly address it through the judgment in Redcar. No doubt it will become more an issue in future claims where users seek to rely upon designations of village green use for a much wider range of users than that which they are able to prove to the registration authority. Councils must take time to prepare a range of defences that they can use against a tide of these applications.

Pamela Chesterman is a solicitor in the planning department at Halliwells LLP. She can be contacted via This email address is being protected from spambots. You need JavaScript enabled to view it..