Land that has been used by the inhabitants of a locality for sports and pastimes as of right for at least 20 years may be registered as a town or village green pursuant to the Commons Registration Act 1965.
Under Section 14(b) of the Commons Registration Act 1965, an application can be made to the Council for the register to be rectified and the registration of the town and village green removed. There is no time within which such an application must be made; the sole criteria to determine applications is that it is 'just' to rectify the register.
Two recent cases have been determined by the Supreme Court, relating to the topic of rectification. One site related to land at Huddersfield that had been designated as a village green. In 1996 the area of land was registered as a town and village green, and it was not until 14 years later, in 2010, that an owner who purchased with knowledge of the designation made an application to rectify the register and remove the registration. The second appeal related to land at Weymouth where the village green was registered in 2001 and an application for rectification was made in 2005. Both matters have been subject to several hearings in various Courts.
In respect of the Huddersfield site, the registration was found to be defective on the basis that the land had not been used by inhabitants from a single locality for 20 years, thus failing the general test. In respect of the Weymouth case it was stated that the users of the open space had not used it for 20 years as of right, as the land owner had taken significant steps in order to try to prevent such use by the erections of signs and fencing.
The issues before the Supreme Court were subtly different. The Court had to determine whether it was just and equitable to rectify the register after the period of time that had elapsed since the original registration. In deciding on whether to allow the rectification, the main consideration for the court was whether it was just and equitable to allow it, and whether any persons would suffer prejudice as a consequence of the proposed action.
In broad terms, the considerations were that for a lengthy period of time the land owner's use of the land had been restricted by a defective registration and they had been prevented from developing the same. In terms of the residents who had use of the open spaces, it was considered that they had not suffered prejudice in that by the defective registration they had no entitlement to use the open space.
This decision is of some significance, particularly to sites where a town or village green designation is in place. In appropriate circumstances a developer could investigate whether the registration was properly made and not defective. However, if it proves that the registration was made in a defective way it may present an opportunity to rectify the register and remove the designation. This could be a real means for developers to consider existing sites that are subject to a registration and may provide the means to bring forward development.