The existence of common land dates back centuries when one person or numerous people collectively owned a piece of land which would have certain traditional rights, such as to allow their livestock to graze on it, to collect wood or to cut turf for fuel. Today there are over 7,000 registered commons in England alone, but development is strictly controlled with restrictions on the kind of works that can be carried out on it.

So who decides when a green space is a common?

Anyone can apply to register land as a town or village green by virtue of section 15(1) of the Commons Act 2006.  Landowners can apply to register their own land as a green under section 15(8) of the same Act, provided the right to apply has not been excluded. In both cases, applications are made to the local authority.

One reason for applying to register land as a town or village green may be to prevent it from being developed. In fact, applications for registration are now a favoured tactic of objectors to property development. An application to register common land will at the very least delay the development of a site while a public inquiry is conducted to hear conflicting statements from the landowners and applicant. There is no liability to pay costs if an application is later unsuccessful or proves to be unfounded.

The Growth and Infrastructure Act of 2013 was brought in to prevent vexatious applications to register a green where a planning application has already been made in respect of that plot of land. 

In order for an application to be successful and for the land to become a legally recognised town or village green, you must be able to show the following:

• That the land concerned has been used by a significant number of locals coming from the locality or any neighbourhood within the locality
• The land must be used for recreation (lawful sports and pastimes)
• The land must be used ‘as of right’ without permission from the landowner for at least 20 years
• The land does not have to be grassy and can be scrub or wetlands.

The statute has been fleshed out by way of case law. In R v Oxfordshire CC, ex p Sunningwell PC the House of Lords interpreted the ‘as of right’ to mean ‘not by force, nor stealth, nor the licence of the owner’.

In the case of successful applications, any rights awarded will only apply to local ‘commoners’. Anyone in breach of the rights awarded by restricting access to common land may be subject to an order to remove objects such as fencing or reverse work, such as, erection of buildings which has been carried out unlawfully.

R (Lancashire CC) v Secretary of State for the Environment, Food and Rural Affairs; R (NHS Property Services) v Surrey CC

A judgment handed down on 11 December 2019, in which five Supreme Court judges considered whether the registration of two spaces owned by the local authority could become village greens has concluded that where an Act of Parliament confers a specific or limited use on the land, then the registration of the land under the Commons Act 2006 would cause a conflict between the two statutory regimes.  As a result, the parcels of land in question could not be registered as a village or town green.

The land concerned included:

1. In the Lancashire case land adjacent to a school
2. In the Surrey case NHS land adjacent to a hospital

Each of these parcels of land were subject to separate statutes, including,

1. The Education Acts 1996 and 2002 as well as related statutory instruments and;
2. The Health and Social Care Act 2012.

The land was not subject to a current planning application therefore the restriction provided in the Growth and Infrastructure Act of 2013 did not apply, but in both cases the NHS and education authority respectively argued that the land should be retained for the use permitted within the Acts at a later stage, and, if those pieces of land became common land or greens, then this would be in breach of the Statutes governing the plots. For example, the land may be needed for constructing a school, for playing fields, or hospital buildings.

Three out of the five judges (Lord Carnwath, Lord Sales and Lady Black), forming a majority, ruled that neither parcel of land could be registered as a town/village green with Lord Wilson dissenting and Lady Arden partially dissenting.

Lord Wilson dissented on the basis that he interpreted the ‘statutory incompatibility principle’  as a principle only arising where an Act of Parliament identified specifically the land and a specialised use of it. He applied earlier case law in his dissenting judgment, specifically the matter of R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council in which land could not be granted common or green status because a private local Act of Parliament contained defined purposes for which the land was to be used as a port.

Lady Arden also dissenting was of the view that in considering whether to grant status to the land, the current and reasonably foreseeable use of the land should be considered, applying a test derived from the Westmorland case,

“My conclusion is that the question of incompatibility between two sets of statutory provisions …involves an assessment of the facts as well as a proposition of law. The fact that a public authority holds land for statutory purposes which are incompatible with the use of the land as a town or village green (“TVG”), is not of itself sufficient to make the land incapable of being registered…as a TVG. It must be shown that the land is in fact also being used pursuant to those powers, or that it is reasonably foreseeable that it will be used pursuant to those powers, in a manner inconsistent with the public’s rights on registration as a TVG.”

In spite of the opposing views the decision made by the majority of judges in the highest court in the land is binding.

The circumstances in which greens are protected appear to be becoming more limited by both statute and case law avoiding the need for schools, hospitals or similar to decide immediately how they wish to use land at their disposal. This is good news for landowners and developers alike. The decision is however bad news for organisations such as The Open Spaces Society and The Ramblers who work to promote and protect areas such as greens and commons for use by the public at large.

If you are considering making an application to register a town or village green, or need to protect land you own (or wish to develop) from any such application, you should seek legal advice from an expert lawyer as soon as possible. We have a number of commercial and agricultural property lawyers at BHP who will be able to assist. Please contact us for further information and to arrange an appointment.