Town and village greens

Town and village greens are important spaces, many of them steeped in history, where local people have enjoyed informal recreation through the ages. Nicola Hodgson, case officer at the Open Spaces Society, reviews the law and the means by which local councils can create and protect greens.

Village greens have an ancient origin. They have been recognised as places for customary recreation since the mediaeval era.

The Commons Registration Act 1965 (section 22) provided for the registration of village greens. It was amended by section 98 of the Countryside & Rights of Way Act 2000. The original registers closed in the 1970s, and any land not then registered ceased in law to be a town or village green (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.

Legally, the expression ‘town or village green’ has a much wider meaning. It has long been used to describe land, rural or urban, over which the inhabitants of a particular locality hold customary recreational rights.

The terms ‘town green’ and ‘village green’ are legally identical, only indicating where the green is situated.

Registration

Under the Commons Act 2006, there are two ways to register land, by meeting the criteria set out in section 15(1), or by voluntary dedication by the owner under section 15(8).

The provisions of the 2006 act relating to the registration of greens do not apply to land in the New Forest, Epping Forest, or the Forest of Dean. Although greens may exist in these places, they cannot be registered.

Section 15 came into force in October 2007 and enables any person, including a parish or community, town, district or unitary council 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 (i.e. without force, secrecy or permission) 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 and 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 can happen where public access is curtailed under statutory powers.

The application process is prescribed under the following provisions. The Commons Registration (England) Regulations 2014, SI 2014/3038, for use in England in pioneer areas (Blackburn with Darwen Borough, Cornwall, Cumbria, Devon, Herefordshire, Hertfordshire, Kent, Lancashire, North Yorkshire).

The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007, SI 2007/457, for use in England outside the pioneer areas.

The Commons (Registration of Town or Village Greens) (Interim Arrangements) (Wales) Regulations 2007, SI 2007/2395 (W198) for use in Wales.

Process: Submit application and evidence

Form 44 (England & Wales)
Form CA9 (pioneer areas)
Send to local authority, county or unitary borough
No fee for application

Trigger events

In England section 15C introduces schedule 1A which specifies certain ‘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 the publication of 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 15C introduces schedule 1B with only three ‘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.

Court cases on trigger events

Court of Appeal:

2019 first trigger event case Wiltshire Council and Cooper Estates Strategic Land Limited and R Gosnell and Royal Wootton Basset TC.
Court upheld 2018 High Court decision that key policies in adopted core strategy had identified land for ‘potential development.
The land was on the edge of a settlement boundary.
Concluded was a trigger event precluding registration as TVG.

High court:

2022 Bellway Homes v Kent CC.
Judicial Review of Kent CC decision that there was no trigger event
Court agreed no trigger event.
The object of policy OS6 in the local plan was to protect green gaps, and the land was outside the 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.

In addition, where land is acquired and held for defined statutory purposes by a public authority, the 2006 act does not allow the public to acquire rights over that land by registering it as a green where the registration would be incompatible with those statutory purposes.

Landowner Statements
Sections 15 A and 15 B enable a landowner to deposit a statement with the registration authority which ends 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. A TVG 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 damage or build on a green or to interrupt its use or enjoyment by the local community.

Supreme Court:

2021 TW Logistics v Essex County Council.
Registration of land at Allen’s Quay did not criminalise the activities of the landowner carried out during the 20-year application period.
Confirms Inclosure Act 1857 and Commons Act 1876 do not prohibit activities of a landowner which were carried out before registration as a green.

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, Kent, and LB Havering, to protect the land for local people.

Ownership and rights
The owner of a green cannot do anything which interferes with the lawful recreational activities of the local inhabitants. However, there is no obligation to maintain the green in a suitable state for recreation. 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. The Commons Act 1899 enables a district council to make a scheme of regulation and by-laws. The Open Spaces Act 1906 empowers local authorities, at all levels, to manage village greens.

The Department for Environment, Food and Rural Affairs and the Department for Levelling Up, Housing and Communities have model by-laws which can be used and adapted.

Where the owner of a TVG is a private person or body a local authority has no power to manage the land without the owner’s agreement. If the owner is unknown or inattentive, a district council could make a scheme of regulation, so that regulation and management become vested in the council.

It is normally in breach of section 12 of the Inclosure Act or section 29 Commons Act 1876, or both, to drive or park vehicles on a TVG where this causes damage to the green or interrupts its use for recreation. By-laws can be used to make parking an offence. Driving and parking on a green may be an offence under section 34 of the Road Traffic Act 1988, for instance, driving anywhere off the road (except within 15 yards of a road solely to park) without lawful authority. It is also possible that driving and parking on a TVG is an offence under section 1 of the Criminal Damage Act 1971, for instance destroying or damaging property recklessly or without lawful excuse.

There is no formal consent process to undertake works on greens unless the green is managed under a scheme of regulation, where the process under section 38 Commons Act 2006 (consent for works on common land) must be used. In all other cases it is necessary to consider whether planned works are carried out ‘with a view to the better enjoyment of the green’. The provision of facilities to assist in the enjoyment of recreation will not be a breach of the sections 12 or 29 mentioned above. Tree planting may be acceptable provided it does not adversely affect people’s use of the land for lawful sports and pastimes.

There is no specific provision which prohibits the owner of a green from granting a right of way over it, and where this does not interfere with local people’s rights of recreation or with any other established rights (e.g. rights of common) it is lawful.

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.

About the Open Spaces Society
The Open Spaces Society is Britain’s oldest national conservation body, founded in 1865. It has 2,300 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.
The membership subscription for local councils is £45 a year.
The Open Spaces Society, 25a Bell Street, Henley-on-Thames RG9 2BA.
www.oss.org.uk

Guidance note on voluntary registration: www.oss.org.uk/what-do-we-fight-for/village-greens-voluntary-registrationdedication-of-land-as-a-town-or-village-green-of-land-as-a-town-or-village-green

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Written by Nicola Hodgson, Case Officer, Open Spaces Society
As appeared in Clerks & Councils Direct, July 2024
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