Village greens – avoiding the long grass

Paul Denholm examines the increasingly common practice of invoking ancient laws in a bid to protect town and village greens as a means of thwarting planned development.

The apparent rise in the number of cases where perfectly acceptable developments have fallen foul of Town and Village Green applications raises interesting questions for all property and planning lawyers. Arguably those acting on behalf of local authorities are faced with the most testing issues.

The exposure of local authorities to the effects of the laws protecting town and village greens varies. Some local authorities are Commons Registration Authorities with statutory responsibility to determine applications for the registration of town or village greens. By the same token, a local authority that is a landowner, development partner or promoter of a regeneration project can face the risk of planned development being thwarted by an application to register a town or village green. After registration of a town or village green, there is also the issue of managing overlapping uses, which has been considered in the latest case law.

The heart of the matter

Local activists opposed to developments in their communities are increasingly gaining the whip-hand with frivolous applications, claiming recreational use of land that is part of development sites. It is a highly effective tactic. The applications are cheap and easy to file without the applicant having to give any undertaking for damages, as would be the case, for example, if an injunction were being sought through the courts to enforce a restrictive covenant. The opponents of development make extensive use of social networks and websites to help them gain support for the registration of a Town and Village Green application.

A study by Defra of 48 Town and Village Green applications selected nationally found that 52% were ultimately successful. In all 48 cases, the application for Town and Village Green status would have jeopardised the ability to develop the site. In the 52% of successful cases, legitimate development plans would have been permanently stopped, including schemes driven by local authorities such as leisure facilities, employment generating developments, regeneration and affordable housing.

The impact of registering an application is always damaging. At best an application can delay a local authority’s regeneration scheme or other development. At worst, a successful registration will put an end to the scheme. It will usually cost a fortune in legal fees. What’s more the local authority and its partner developer could have incurred huge costs on an abandoned scheme and be left with land of little value. The local authority may also suffer colossal embarrassment for non-delivery of a regeneration scheme and its associated social and economic benefits.

Public attention

Successful applications have now resulted in town or village green registrations not only over picturesque open spaces but also beaches, wasteland and highway verges. Recent high profile examples of this action have generated media interest and public debate. Two examples are particularly noteworthy:

• As a result of a successful Town and Village Green application, Regional Development Agency Advantage West Midlands has abandoned the development of a site for a new health centre, flats and offices. The site has been given to the local authority for nothing.
• In Croydon, plans by the local authority to develop a site for an Enterprise Opportunity Centre fell through, along with an £80m Tesco development after the site was affected by a successful Town and Village Green application.

Many applications have been highly contentious. The highest court in the land has considered the law relating to the registration of new town or village greens on four occasions in the last 10 years, with decisions in R v Oxfordshire County Council v Sunningwell Parish Council [2000] 1 AC 335; R (on the application of Beresford) v Sunderland City Council [2004] 1 AC 889; Oxfordshire County Council v Oxford City Council [2006] 2 AC 674; R (on the application of Lewis) v Redcar and Cleveland Borough Council & anor [2010] UKSC 11 on 3 March 2010.

Prior to the Supreme Court’s recent decision in the Redcar case, a line of legal authority was being developed by the courts to restrict the registration of new town or village greens. According to this line of authority, if there was a material conflict between the recreational use of land by a significant number of the inhabitants of an area, and that recreational use ‘deferred’ to that of the landowner, that recreational use did not meet the statutory requirement in s15 of the Commons Act that such use be ‘as of right’ because it did not have the outward appearance to the landowner of the assertion of a legal right. In the Supreme Court’s decision in the Redcar case, it was held that ‘deference’ by recreational users does not prevent recreational use from accruing use ‘as of right’. As a result of this decision, landowners will need to take active measures to exclude trespassing recreational users.

Mitigating the risks: look before you leap

If the number of applications to register town or village greens continues to thwart developments in increasing numbers, it is conceivable that this will force a review and eventual reform of the law. Defra has already stated that it proposes consulting on whether there is a need for reform of the registration system, and the options for reform that exist.

In the meantime public and private sector landowners and developers who wish to protect the future development potential of a site for development will need to mitigate and manage their risks by ensuring that access to the site is by permission only.

Where it is not practical to do this, or where the land has been open to public access for a 20-year period, legal indemnity insurance can be available. The legal indemnity insurer will carefully analyse the history of the land and make a decision about insuring the risk based on a combination of factors, including the likelihood of an application being made and whether there is any argument that all of the criteria for registration of a town or village green have not been met, having regard to s15 of the Commons Act 2006. This usually involves considering whether the recreational use was nec vi nec clam nec precario (without force, secrecy or permission) and whether a significant number of the inhabitants have used the land for lawful recreational purposes.

Where a local authority has a dual role as a landowner/developer and as a Commons Registration Authority and wishes to take out a legal indemnity insurance policy to protect its interest as landowner/developer, the terms of the insurance policy should be written so as to confirm that the exercise by the local authority of its functions and duties as Commons Registration Authority would not invalidate the insurance cover.

A local authority wishing to purchase legal indemnity insurance also needs to consider the likely cost of the cover in relation to its standing orders as well as the Best Value regime. Where the likely cost exceeds the applicable EC Procurement threshold, an EU procurement process should be followed; failing which there is, for example, the risk of a court applying one of the remedies introduced under the Public Contracts (Amended) Regulations 2009, and declaring that the contract of insurance is shortened or ineffective.

Finally, neither the Commons Act 2006 nor the Commons Registration Act 1965 explains what the effect of a successful registration of land as a town or village green is. The Redcar case has established that after a successful registration, it is possible that the use of the land by the landowner prior to the registration could continue subject to the general post-registration right of local people to use the land for lawful recreation. In practice it could be impractical for a local authority or other landowner to manage the overlap, for example, between the continued use prior to registration of land as a school playing field with the access rights granted to local people by a successful registration.

Paul Denholm is First Title’s expert underwriter in this field. He is also a planning lawyer who has worked in local government in England and Wales, as well as internationally.