Town and Village Greens, Green and Pleasant Land?
Town and Village Greens; Green and Pleasant Land?
The existence of a town or village green (TVG) may restrict or prevent development. It is a criminal offence to disturb or interfere with the use or enjoyment of a TVG. In this light, an application to register a TVG can be a useful weapon for anyone wishing to stop a development.
TVGs can be subject to rights of common. They are areas of open space which have been used by the inhabitants of a town, village or parish, for the purposes of lawful sports and pastimes. There is no legal distinction between town greens and village greens; it depends only on where they are situated.
The Commons Registration Act 1965 introduced a requirement for a permanent, conclusive record of the extent of common land and town or village greens and rights of common exercisable over such land. Local authorities were responsible for adding land to the commons registers. Since the Act came into force, all land in England and Wales which is common land, or a town or village green and all rights of common over such land, must be registered under the 1965 Act or the Commons Act 2006. If it is not, the rights of common are not exercisable.
The 2006 Act is intended to consolidate, simplify and improve the previous legislation. It is being introduced in stages; most provisions are being brought into force by order made by the Secretary of State in England, or by the Welsh Ministers in Wales. Registration under the 2006 Act is now universally in force, except in relation to the New Forest, Epping Forest and the Forest of Dean. The 1965 Act continues to apply in relation to other provisions where the 2006 Act is not yet in force.
The requirements for registration:
An application to register land as a TVG under the 2006 Act must satisfy the following requirements:
- the land must have been used for lawful sports and pastimes
- the use must have been by a significant number of people from either a locality, or any neighbourhood within a locality
- the use must have been carried out for at least 20 years up to the date of the application
- the use must have been ‘as of right’ throughout that time.
The applicant must demonstrate that these requirements are satisfied. The standard of proof is the civil one — ‘on the balance of probability’, i.e. that it is more likely than not.
Lawful sports and pastimes:
The Courts have held that ‘sports and pastimes’ are not two classes of activities but a single, composite class, so that either a sport or a pastime falls within it. Examples of activities found to be within this class are: dog walking, playing with children, flying kites, picking blackberries, fishing and tobogganing.
However, not all use that falls within the meaning of ‘lawful sports and pastimes’ is sufficient. Decided cases confirm that the use must have been of such a character, degree and frequency as to indicate an assertion of a continuous right. So, use which is ‘so trivial and sporadic as not to carry the outward appearance of use as of right’ will be ignored.
Use not properly considered to be a lawful sport or pastime or not ‘as of right’ (see below) will not be taken into account when considering whether the statutory requirements are met.
One of the main uses that has to be discounted is use of the land to walk across. The use of footpaths must be distinguished from use for sports or pastimes. This use will generally only establish public rights of way.
However, use of tracks for pedestrian “recreational” purposes may qualify.
Dog walking presents difficulties, because it is both a normal and lawful use of a footpath and one of the kinds of ‘informal recreation’ which is commonly found on village greens. A dog let off it’s lead may roam freely even though it’s owner stays on the footpath. The circumstances of each matter will be crucial.
How much of the land has to be used?
Not every part of the relevant land has to have been used for lawful sports or pastimes. However, the evidence submitted must indicate use as of right for lawful sports and pastimes of the land as a whole.
The Courts will adopt a “common sense” approach. However, this may preclude the possibility of a TVG being established on land where other uses (e.g. golf, agriculture) are also taking place.
In one decided case, the fact that only 25% of the land area was accessible did not prevent a finding that there was recreational use of the land as a whole.
Significant number of inhabitants:
A “significant number” need not be considerable or substantial. What matters is that, on the evidence, the number of people using the land must be sufficient to indicate that their use is a general use by the local community for recreational use, rather than occasional use by individuals as trespassers.
A “significant number of inhabitants of a locality” does not mean that there has to be a “spread” of use from across a wider area. Usage may be assessed on the basis of use made by residents from a smaller area close to the site.
Neighbourhood and locality:
A landowner might object to an application for registration by disputing the existence of any adequately defined locality or neighbourhood from which the users of the land are drawn.
The Courts have decided that inhabitants applying for registration can come from more than one neighbourhood, but that ‘locality’ must be construed rigidly and in the singular only. Use by inhabitants from two different areas which are not localities (or even if they are, if there is an even spread of users over both areas), may not be accepted as use by the inhabitants of a single locality.
‘As of right’:
Use ‘as of right’ means use that is not by force or stealth, nor with the consent of the landowner. What is critical is how the use appears to the land owner. This does not require the subjective belief of the users in the existence of the right to use the land for ‘sports or pastimes’.
Use granted by statute is ‘by right’, but not ‘as of right’.
So for example, land acquired under the Housing Act 1936 which was not formally appropriated from housing to open space purposes enabled local authorities to provide recreation grounds in connection with housing. As the land had been maintained for recreation, use for that purpose was ‘by right’ not ‘as of right’ and the land could not be registered as a TVG.
Similarly, use of land held under a provision such as section 12(1) of the Housing Act 1985 (HA 1985), further to which members of the public have a statutory right to use that land for recreational purposes, will use the land ‘by right’ rather than ‘as of right’.
When considering whether there has been 20 years’ use “as of right”, any periods of statutory closure are disregarded. This includes temporary restrictions imposed by a local authority or the government which prevent access to the land.
Landowners can erect signs stating that access is permissive, and that the permission to use the land can be revoked at any time. These signs must remain visible and legible to anyone using the land.
In one complicated case the Court decided that the landowner had done enough to show that the use of the land was objected to and consequently use was not as of right. This was because the landowner had put up signs warning people to keep to the paths that crossed the land. These were unlawfully removed by a minority of users, and there was evidence was that a majority of users had not seen the signs. After removal the landowner had re-erected signs for a while, but had then stopped because they were continually removed.
The Court’s general approach to such signs is:
- what did the notice convey to the user?
- evidence of the actual response to the notice by actual users is relevant to the question of actual knowledge and may also be relevant to the supposed knowledge of the reasonable user
- the nature and content of the notice, and its effect, must be examined in context: it should be read in a common sense and not legalistic way.
- if it is suggested that the owner should have done something more than erect the actual notice, whether in terms of a different notice or some other act, the Court should consider whether anything more would be proportionate to the user in question
Recreational rights can coexist with other rights
The lawful recreational use need not be the sole or dominant use. If use is open and is exercised as a person with a right to do so would have used it, then the right is established. It is irrelevant whether they believed that they had the right. Deference to others’ use of the land does not necessarily mean that recreational users have no coexisting rights over the land.