Town and Village Greens

AuthorWilliam Webster
Pages489-522

Chapter 26


Town and Village Greens

INTRODUCTION

26.1 The criteria for the registration of new town or village greens (TVGs) are to be found in section 15 of the Commons Act 2006 (CA 2006), which came into force in England on 6/4/2007 and in Wales on 6/9/2007. This provision has been the subject of reform in the Growth and Infrastructure Act 2013 which has made it much less easy to register land.

26.2 The village green process is quite unlike the planning process where an applicant for planning permission has no entitlement to permission and, in its decision whether to grant it, a local planning authority has to exercise an administrative discretion in accordance with the development plan and local and national policies. In the case of new greens, the registration authority is bound to register if the qualifying criteria for registration contained in section 15 of the CA 2006 are met, irrespective of whether it thinks it would be a good or bad thing to do so.

26.3 A landowner receives no compensation for the burden of owning land which is registered as a TVG which has no potential for development. Land subject to registration is usually worthless and even difficult to give away. For instance, it is difficult to insure such land and local authorities will be reluctant to accept transfers of such land from landowners looking to rid themselves of onerous maintenance responsibilities and constant superintendence.

26.4 The topic of village greens has an extensive jurisprudence. However, the focus of this chapter will be on the consequences of registration, the current regulatory framework and recent case law.

CONSEQUENCES OF REGISTRATION

26.5 Upon registration the land becomes subject to: (a) section 12 of the Inclosure Act 1857; and (b) section 29 of the Commons Act 1876. Under both

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enactments, the rights of local inhabitants are protected and development is prohibited by the imposition of criminal sanctions. These enactments (which for these purposes are known as the Victorian Statutes) apply to any land registered as a TVG.1

26.6 Under section 12 of the Inclosure Act 1857, it is an offence wilfully to lead, drive or draw any cattle or animal on the land without lawful authority,2lay any manure, soil, ashes, rubbish or other matter or thing thereon, or to do any other act whatsoever (whether wilfully or not) to cause damage to a green or to impede ‘the use or enjoyment thereof as a place for exercise and recreation’. The purpose of this provision seems to have been to prevent nuisances such as bringing on animals and dumping rubbish.

26.7 Under section 29 of the Commons Act 1876, it is deemed to be a public nuisance (and an offence under the Inclosure Act 1857) to encroach or build upon or to enclose a green. This extends to causing any ‘disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green’. This provision seems primarily aimed at encroachments by fencing off or building on the land.

26.8 Although these sections appear, on their face, to give rise to very strict prohibitions (such as the prohibition against development), the conduct of which complaint is made is only likely to be considered to be an offence under section 12 of the Inclosure Act 1857, or deemed to be a public nuisance under section 29 of the Commons Act 1876, if the land has suffered harm which has materially interfered with the use of the land for informal recreation.

26.9 For both the Inclosure Act 1857 and the Commons Act 1876, the persons entitled to instigate criminal proceedings in a magistrates’ court are the owners of the land, any inhabitant of the parish, the parish council or, where there is no parish council, the relevant district council.3

1See TW Logistics Ltd v Essex County Council [2018] EWCA Civ 2172, where it was held that the Victorian statutes should not be construed so as to make illegal that which, under the statutory registration scheme, was legal if another reasonable construction was possible. It was held that the judge had correctly found that where a landowner was conducting his activities because of his lawful right to do so, those activities did not amount to a public nuisance under the statutes (Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674 applied and Massey v Boulden [2002] EWCA Civ 1634, [2003] 1 WLR 1792 considered (see [63]–[80] of the judgment)).

2Grazing cattle or livestock in the exercise of a registered right of common would not be unlawful, nor is it likely that a local inhabitant would be guilty of an offence under s 12 if he takes an animal onto the land in the exercise of his right to enjoy lawful sports and pastimes. This might include horse-riding if this activity had been a feature of qualifying use.

3LGA 1972, s 189(3).

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26.10 Section 34 of the Road Traffic Act 1988 makes it an offence to drive over, or park on, land not forming part of a road without lawful authority. It has been held that this section applies to greens.4Those driving on land with permission or by virtue of a right to do so will not be committing an offence under section 34, nor will it be an offence under section 34(1) to drive on a green within 15 yards of a public road solely for the purpose of parking.5Driving on a green may, however, also be an offence under the Victorian Statutes if it is frequent or gives rise to damage or if it involves regular parking on the land, thereby interrupting its use or enjoyment by others.6

REGULATORY FRAMEWORK UNDER CA 2006,

SECTION 15

26.11 Initially, registration was provided for under the Commons Registration Act 1965 (CRA 1965). This enactment has been superseded by the CA 2006, Part 1 of which deals with the registration of common land and greens. Applications for registration are made under section 15. With the passage of time, it is no longer necessary to deal with applications made before the coming into force of the CA 2006 (and with it the repeal of section 13(b) of the CRA 1965).

26.12 An application for registration is made to a commons registration authority.7Registration is subject to the following regulations: (a) the Commons (Registration of Town and Village Greens) (Interim Arrangements) (England) Regulations 2007 (2007 Regulations);8(b) the Commons (Registration of Town

4Massey v Boulden [2002] EWCA Civ 1634, [2003] 1 WLR 1792.

5Road Traffic Act 1988, s 34(3).

6See also TW Logistics Ltd v Essex County Council [2018] EWCA Civ 2172, which concerned the use by a landowner of working quays in the Port of Mistley in Essex over which an area of land had been registered as a TVG. The landowner had argued that the effect of registration would be to criminalise its continuing use of the TVG for the same commercial purposes as had taken place throughout the 20-year period, and for that reason the recreational use did not have the necessary quality to support the registration. The landowner’s challenge was dismissed as the judge had found that the recreational uses of the quayside in the qualifying period were not displaced or excluded by, or incompatible with, the carrying on of commercial activity, and that there was sensible and sustained co-existence between the two groups of users. It was essentially a question of evaluating whether, as a matter of fact, the pre-existing use and recreational use were compatible. The judge had found that they were, and his careful evaluation should not be interfered with (R (Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11, [2010] 2 AC 70 followed (see [24]–[36] of the judgment)).

7By CA 2006, s 4, a commons registration authority will be: (a) a county council in England; (b) a district council in England for an area without a county council; (c) a London borough council; and (d) a county or county borough council in Wales. The relevant registration authority will be the authority in whose area the land is situated.

8SI 2007/457.

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or Village Greens) (Interim Arrangements) (Wales) Regulations 2007;9and (c) the Commons Registration (England) Regulations 2014 (2014 Regulations)10

(which replaced the Commons Registration (England) Regulations 2008 (2008 Regulations))11which apply only to the nine pioneer implementation areas as an extended pilot.12The 2007 Regulations apply to all other areas of England and Wales and will be superseded by the 2014 Regulations once the whole of Part 1 is in force in England and Wales (which is not yet in sight). Both sets of regulations deal mainly with the procedures for making applications and their determination, otherwise the law in this field is no different no matter where the land happens to be located.

WHO IS ENTITLED TO APPLY FOR REGISTRATION?

26.13 Any person or body (whether corporate13or unincorporated) may apply to register land as a TVG.14Applications are commonly made by representatives of ad hoc unincorporated associations of local inhabitants, which have been formed with the object of resisting development on the land. The landowner may also apply to register his land as a TVG,15in which case, the consent of any relevant leaseholder of, and the proprietor of any relevant charge over, the land will be required.16Where a landowner applies to register his own land, there is no requirement that the land should meet the ordinary tests for a TVG.

APPLICATION FORM

26.14 Outside the pioneer areas, the application to register is made on Form 44.17

The form is relatively straightforward. In summary, the applicant is required to provide his name and address and those of his legal representatives (if any). He is also required to identify whether his application is based on qualifying use which is continuing at the date...

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