03 November 2010 #Commercial Real Estate
The Commons Act 2006 (the Act) regulates the registration of land as a town or village green. The aim of the Act is to protect open spaces which have been used recreationally by the public against future development.
Section 15 of the Act states that any person may apply to the commons registration authority to register land 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; and they continue to do so at the time of the application. Or, if they ceased to do so before the time of the application but after the commencement of this section if the application is made within the period of two years beginning with the cessation.
Two recent cases have added to the difficulties which landowners and developers face in relation to the prospect of a successful registration of a town or village green. The first case is R (on the application of Lewis) v Redcar and Cleveland Borough Council  which was a Supreme Court decision (formerly the House of Lords). A common owned by the council was used as a golf course until 2002. Local inhabitants who used to use the land for sports, walking, exercise and games made an application to register it as a town green in order to defeat a developer (Persimmon), who had obtained planning permission for mixed residential and leisure use.
The High Court and the Court of Appeal both rejected the application to register because the local inhabitants` use of the land had clearly been in deference to the use of the land as a golf course. The court found that the local council could not, as a result, be expected to believe that the residents were exercising a public right to use the land. There was therefore an element of implied permission by the council in allowing the public to use the land, which defeated the claim that the usage had been ‘as of right`.
The Supreme Court unanimously overturned the decision of the Court of Appeal and the land was ordered to be registered as a village green. The court found that the deference of the local people to the use of the land by the golfers did not have to be inconsistent with use as of right.
It was not necessary for the residents to show that it was reasonable for the landowners to realise that they were exercising a right. So long as their use was ‘as of right` for 20 or more years, the common could be registered as a town green.
The other case, Leeds Group plc v Leeds City Council  was a Court of Appeal decision centring around the meaning of the words ‘locality` and ‘neighbourhood` as used in Section 15 of the Act. The application in question was supported by the evidence of two residents, each of whom lived in separate areas in Yeadon in Leeds. The question was whether it could be said that the residents were from a neighbourhood within a locality.
The argument by the landowner was that Yeadon could not form a locality as it was not a recognisable administrative district of the country and further that only one relevant neighbourhood could be used in considering whether there was a neighbourhood within a locality within the meaning of Section 15.
The Court of Appeal held that the relevant locality does not need to be an administrative unit. There is no reason to limit the meaning of ‘locality` or of ‘neighbourhood` and having residents from two separate neighbourhoods was not fatal to the application for registration as a town green. The application to register as a town green was therefore successful.
The tactic of opposition to a development by attempting to register a town or village green is becoming increasingly popular and residents` groups are becoming increasingly well organised at this activity. It is possible that this breadth of scope for the registration of town or village greens was not what was intended when the Act was passed by Parliament in 2006.
Landowners and developers need to consider carefully the possibility that the potential development value of their land could be wiped out and developers need to further consider the extent to which they are prepared to expend their resources acquiring and then promoting such development only to find that they are defeated at a late stage by an application to register a town or village green. At worst, a town or village green application can prevent development and at best, it will cause delay and increased cost.
Preventive steps that landowners and developers need to take include:
Landowners and developers are advised to beware of these types of rights arising, particularly during this period of the economic cycle when developers are banking land and it will lie unused.
Please note that this article is not intended to constitute detailed advice to be relied upon in respect of a particular scenario.