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Town and village greens

Town and village greens (TVG) are important spaces, many of them steeped in history, where local people have enjoyed informal recreation through the ages. The Open Spaces Society’s case officer, Nicola Hodgson, reviews the law and means of creating and protecting greens.

In recent years there has been much case law and new legislation on the registration of TVG. The origins of TVG are found in customary law. They were originally small areas, usually forming part of the waste of a manor, over which local inhabitants indulged in lawful sports and pastimes. The Commons Registration Act 1965 (section 22) provided for the registration of TVGs. The definition, in simple terms was any land where local people had enjoyed informal recreation, without permission or challenge, for at least 20 years.

The original registers closed in the 1970s, and any land not then registered ceased in law to be a TVG. However, 20 years later it became possible to register land which was omitted the first time—and such land need not be the classic village centre green, it can be any land which meets the criteria including a rough patch on the edge of town.

The Commons Registration Act was amended by section 98 of the Countryside and Rights of Way Act 2000.

Registration
Section 15 of the Commons Act 2006 came into force in October 2007 and enables any person, including a parish or community, town or district council or unitary authority to apply to the commons registration authority to register land as a TVG where:

  • a significant number of the inhabitants of any locality or neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period at least 20 years and they continue to do so at the time of application; or
  • they have so indulged for at least 20 years, ceased to do so before the time of the application but after the coming into operation of section 15 and an application is made within one year (in England) or two years (in Wales) after the activity has ceased.

In determining the 20-year period, any time during which access to the land is prohibited to members of the public under an enactment is disregarded. This could happen where public access is curtailed under statutory powers, for example to control foot-and-mouth disease and may be applicable to closures during the current coronavirus pandemic.

Further significant restrictions on applying for registration of a TVG were introduced by the Growth and Infrastructure Act 2013 and the Housing and Planning Act 2016 (in England) and the Planning (Wales) Act 2015 (in Wales). The English legislation is contained in section 15A-C and schedule 1A of the Commons Act 2006. The Welsh legislation is in part 8 subsections 52-54 and schedule 6 of the 2015 Act.

Section 15C introduces schedule 1A (in England) which specifies certain events known as ‘trigger events’ associated with plans or proposals for development, on the occurrence of which an application to register land as a green is prevented. There are 16 ‘trigger events’; these include an application for planning permission and the publication of a development plan or neighbourhood plan which identifies the land for potential development.

In Wales section 15A and C are modified in their application to Wales by schedule 6 to the Planning (Wales) Act 2015. Section 15C lists only 3 ‘trigger events’ including the granting of a planning application.

The ban on applying to register land can be lifted by a terminating event, for instance where an application for planning permission is withdrawn or the identification of a site in a development plan is revoked.

While a trigger event prevents an application for registration of a green it does not affect the process if the event occurs after an application has been made.

The first case to reach the courts on the interpretation of trigger events concerned an application to register land in Royal Wootton Bassett, Wiltshire. This was opposed by Cooper Estates, the landowner, on the ground that the land had been identified for potential development in an adopted plan document. Wiltshire Council did not uphold the objection and registered the land as a green. Cooper Estates applied to the High Court which ruled that, since the land was identified for potential development, the right to apply for registration as a TVG was suspended. The Court of Appeal (in Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840) upheld the High Court decision. This was despite the fact that actual land had not itself been identified but it was within the wider settlement boundary.

It is therefore essential to check the local plan and planning permissions before an application is submitted to ensure that the land is not subject to a trigger event.

Landowner Statements
Sections 15 A and 15 B enable a landowner (in England and Wales) to deposit a statement with the registration authority which brings to an end any period during which local inhabitants have indulged as of right in lawful sports and pastimes on the land to which the statement relates. The registration authority is required to keep a register of the statements and this is usually on its website. It is a good idea to ask to be notified of such statements so that consideration can be given as to whether an application can be made to register the land as a TVG for use during the previous 20 years, prior to the statement being made. Such an application must be made within one year (in England) and two years (in Wales) from the date of the notice.

Protection
The main benefits of registering land as a green are to safeguard the land from development and other forms of detrimental activity by bringing the land within the protection of the nineteenth-century legislation (section 12 Inclosure Act 1857 and section 29 of the Commons Act 1876), by which it is an offence to build on a green or to interrupt its use or enjoyment by the local community. Registration secures the right of local people to enjoy the land for informal recreation in perpetuity. It also gives the registered land a new status as land for the community, to be valued and enjoyed.

Voluntary registration
In view of the public benefit in registering land as a green, all councils owning open spaces should consider the fast-track process under section 15(8) of the Commons Act which enables registration of land by the owner. Proof of ownership is required but no evidence is required about use of the land. Many councils have done this, for instance in Milton Keynes and Kent, to protect the land for local people.

Supreme Court
In 2015 there was a landmark case concerning land at West Beach in Newhaven, East Sussex, held by Newhaven Port Authority for statutory purposes under an act of 1878. By-laws to regulate public behaviour had been made under the act. The Supreme Court decided that the status of the land as part of a working port was incompatible with registration as a TVG and rejected a claim for TVG status for West Beach. Following this case, the High Court (in 2016) upheld registration of school playing-fields, ruling that registration was not incompatible with education use. The Court of Appeal upheld this decision but in December 2019 the Supreme Court (after joining it with a case relating to NHS land in Surrey) overruled the decision and said that in respect of both cases the use of the land for statutory purposes was incompatible with village green status.

Ownership and rights
The owner of a green cannot do anything which interferes with the lawful recreational activities of the local inhabitants. There is however no obligation to maintain the green in a suitable state for recreation, although an owner cannot prevent appropriate maintenance, for instance grass cutting, by local inhabitants. Where the owner is a local authority or other body with statutory powers of management, by-laws may be made to regulate recreational activities. There are various public general acts of parliament which give statutory powers of management. Local or private acts may give similar or additional powers. These are the Commons Act 1899 which enables a district council to make a scheme of regulation and by-laws. The Open Spaces Act 1906 is the principal act which empowers local authorities, at all levels, to manage village greens. By-laws may be made to control public behaviour and areas may be set aside for cricket football or other organised games.

The Department for Environment, Food and Rural Affairs and the Ministry of Housing, Communities and Local Government have model by-laws which can be used and adapted.

It is normally in breach of section 12 of the Inclosure Act or section 29 Commons Act 1876, or both, to drive vehicles on TVGs. By-laws can be used to make parking an offence and it is also possible that driving and parking on a village green is an offence under section1 of the Criminal Damage Act 1971, for instance destroying or damaging property recklessly or without lawful excuse.

About the Open Spaces Society
The Open Spaces Society is Britain’s oldest national conservation body, founded in 1865. It has 2,000 members consisting of individuals, organisations and local authorities, including local councils. It campaigns to create and protect common land, town and village greens, other open spaces and public paths. As a charity it is dependent on subscriptions and donations for its funding. www.oss.org.uk