Ashfords Solicitors - Village Greens: a developers nightmare

Land which is most likely to attract village green applications includes: (i) rough or waste land (ii) land acquired by local authorities years previously but never actually put to any use (iii) farm land on the boundary of settlements (iv) land acquired by developers along with development land where early stages of the development were carried out more than 20 years ago.

The County Council or Unitary Authority is required to register land as a village green if it receives an application and believes that (a) for a period of at least 20 years (b) a significant number of (c) local habitants have (d) indulged in local sports and past times (e) as of right.

(a) Use for 20 years

The use must have been uninterrupted for a 20 year period and the application must be made whilst the use by the public continues or within a period set out in Section 15 of the Commons Act 2006. The relevant period is 5 years if the use ceased before 6 April 2007 and 2 years if the use ceases after 6 April 2007.

(b) Significant number

There is no definition of "significant number". Probably tens rather than hundreds of people using it would be sufficient.

The theory is that a village green provides recreational opportunities for people who live in the immediate vicinity. Applicants would therefore need to show that they lived in the area in respect of which the land would be a local recreational opportunity.

(d) Lawful sports and pastimes

Case law has established that such activities as dog walking, fruit picking, bird watching, kite flying qualify as well as the obvious football, cricket etc.

(e) As of right

As of right means that people (i) behave as though they believe they have a right to be there but (ii) they do not have any such right. They would have to do it openly and not furtively or secretly. If people do not go onto the land when the owner is present then they could not claim to be doing it as of right.

There are a number of ways of establishing that a landowner does not accept that the use is "as of right" for example:-

Using the land for an agricultural purpose incompatible with the carrying out of pastimes.
Fencing the land and locking gates with the obvious intention of preventing access.
Displaying notices.
Asking individuals to leave the field when seen there.
Specifically permitting temporary or conditional public use.

Village greens and footpaths

One particular problem arises where the public have the right to be in the field to use a footpath but regularly stray from the line of the footpath, for example, if the walker kept to the footpath but threw balls across the field for dogs to chase. This could form the basis of a village green claim.

Investigations should consider

Available access points to the field. Do they give the public the opportunity to come and go?
Tracks on the ground. Aerial photographs will often reveal tracks on the ground from the public use. Google Earth makes it easy for members of the public to get this information.
History of farming activity.
Display of notices.
Steps taken by previous owners to discourage the public from entering the field.
Observations from residents overlooking the field (always assuming of course that they are not themselves objectors to the development).

Defensive measures

The only effective defensive measure is to make it physically impossible for members of the public to enter the land and/or to display notices to ensure that the public are aware that there is no right to use the field.

If the public are excluded from the field for a period of 2 years (after 6 April 2007) then they will not legally be entitled to make an application after that 2 years.

It therefore follows that it would be desirable to take defensive steps immediately a client became interested in the land so that the 2 year period starts running at the earliest possible date. Apart from bringing the qualifying period to an end as quickly as possible it would also have the advantage of smoking out any potential application. The date the time stops running could be critical as to whether 20 years public use had elapsed prior to the public being excluded.

The disadvantage is that preventing people from using the land might actually have the effect of provoking an application for registration. However starting the development may also have that effect in a far more financially damaging way.

It should always be appreciated that "as of right" is the opposite of "by right". Therefore where local authorities (or others) have deliberately and openly offered their land for public use (eg recreation grounds) that land generally cannot attain the status of a village green. The irony therefore is that it is much easier to redevelop the land deliberately provided to the public for recreational space than it is land which has "accidentally" become a village green through 20 years continuous trespass. An alternative defence measure may be to specifically permit the public to use the land (with conditions).

It is suggested that (i) purchaser clients should be advised of the problem and should survey the land with a view to identifying any public use as a matter of course, (ii) the sellers should be asked specific questions and (iii) the sellers should have a specific obligation to assist the buyer to resist any application to register a village green.

Typical preliminary enquiries where risk is identified

(In practice specific questions may be suggested by the results of a survey)

Has the seller ever seen or been told about members of the public using the land without his consent? If so, what activities were observed or reported.
What steps has the seller taken to prevent members of the public using the land? How often was this done?
Has the seller or anyone on his behalf ever approached members of the public on the land and asked them to leave. If so how often.
Has the seller ever specifically permitted members of the public to use the land. If so how was the permission given.
What is the history of activity on the land, in particular:-

a) when was silage or hay last cut on the land and how regularly was it taken?
b) when was the land last deep ploughed and how regularly was it ploughed?
c) when were crops last grown on the land and how regularly was it cultivated
d) when was livestock last kept on the land and how regularly was it kept there

Evidence and procedure

The applicants for village green registration will normally canvass local residents and ask them to complete evidence forms. These forms will typically encourage residents to say that they walked their dog on the land, picked blackberries/sloes, exercised themselves and their kids and saw others doing the same. They will be asked if they know who owned the land and if the owner or anyone else ever told them to stop using the land. It is all easy "positive" evidence and can often only be disregarded by accusing the witness of lying. On the face of it local authorities will find it very difficult to disregard such evidence.

The landowner is faced with proving a negative proposition. Evidence that he (or others) never saw anyone using the land does not rebut the evidence of someone who says they did use it. On paper evidence it is easy to tip the balance of probability in favour of the applicants.

Faced with this problem local authorities often convene a public inquiry under an independent chairman to investigate the evidence and report back. Based on that evidence the local authority will make a decision whether or not to register. If either the applicant or landowner does not accept the council's decision there are ways of applying to the High Court. It is not necessary for Councils to hold an Inquiry and they could take a decision on the paper application or hold their own hearing at a committee meeting.

Obviously all this takes time. Typically the procedure will require a minimum of a year made up (typically) of 2 months "assisting" the applicants to make a proper application and serving the owner, two months evaluating the application and the owners rebuttals and writing a report to committee recommending an inquiry, 4 months waiting for the hearing of the inquiry, 2 months for the report to be written and two months evaluating the report and obtaining a decision from the council committee. Often it will take far longer. The cost of organising the Inquiry will fall on the council and each party will bear their own costs regardless of the outcome.

There is nothing in law preventing a developer from carrying on with the development while an application is being considered by the Council but if the application succeeds and the land is registered the Council would be under a duty to secure the removal of the development. Carrying on construction would be a high risk strategy and the High Court might grant an injunction if an apparently bona fide applicant sought one.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

7th March 2007

Key Contacts

Village Greens: a developers nightmare

Introduction