Village Green vs Developers: The Battle Continues!

12 April, 2016

Picture of a village greenA village green is a place for the local community to come together and enjoy sporting pastimes and recreational activities; they conjure whimsical, happy thoughts that I am sure we can all reflect on with fond memories.  Since the introduction of the Commons Act 2006 (CA), applications for new town and village greens can be made under section 15 where “a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.

 

This provision has however become a major stone in the shoe for developers where a successful application can prevent a development.  The reason for this is that once land is registered as a green the following consequences apply:

 

  • It becomes a criminal offence to cause any damage to the green or to undertake any act which interrupts the use or enjoyment of a green as a place for exercise and recreation.
  • It is deemed to be a public nuisance to encroach on or enclose a green, or disturb, or interfere with, or build on a green, unless this is done with a view to the better enjoyment of such town or village green.
  • It is an offence to drive over a registered town or village green without lawful authority.

 

The difficulties faced by developers was highlighted recently in the case of R (on the application of Somerford Parish Council) v Cheshire East Borough Council [2016] EWHC 619 (Admin).  In this case an objector to a potential housing scheme made an application to register a village green in relation to a verge.  This verge would need to be used in order to gain access to the intended development.  The objector claimed that the land had been used by residents for recreational purposes for more than 20 years.  The council rejected the application on the basis that the land was part of the highway and use of the land had been ‘by right’, not ‘as of right’.  The court rejected this argument by the council finding that the land was not a highway.  They however referred the decision as to whether the land was a green to a public enquiry as they felt the issues were too wide-ranging for them to resolve.

 

This case brings to the fore the risks that face developers by objectors to a development, and the potential impact it can have on the value of their land and the development itself.  The government has tried to recognise this increasing concern with the introduction of the Growth and Infrastructure Act 2013 (GIA).  It introduced changes that made it harder to register land in England as a green

 

On the one hand, the use of space for recreational activity that has been used for a significant period of time by a large part of the community seems important to protect.  However, on the other, is the argument that section 15 is being used as a tool not to preserve a right, but prevent the use of land by others.  One lesson that developers can take away from this is to beware of any land near a potential development that appears in any way unclaimed, or used by the local community for recreational purposes!