Mention the words ‘village green’ and it’s likely most people will picture an idyllic green space, the kind which invariably has a duck pond in the middle of it, located within a stones throw of a pub.  A green, in other words, in the centre of a traditional British village.

Since the Commons Act 2006 (CA 2006) came into force, community representatives and residents can apply to local commons registration authorities to register a wide range of spaces as a Town or Village Green (‘TVG’).  So long as the space satisfies the statutory requirements, it can be registered as a TVG; as recent case law shows, the type of space that satisfies the requirements can stray far from the idyllic.

Once registered as a TVG, the land in question can then only be used for lawful sports and pastimes.  This has an obvious impact on what landowners can do with their land; future development could be prevented, and even development commenced before the registration as a TVG may have to be undone.

Local spaces for local people

One of the key statutory requirements for registration of a TVG is that a significant number of local inhabitants, or of a neighbourhood within a locality, must have indulged in lawful sports and pastimes on the land for at least 20 years.  This use must be continuing at the time of the application or, if that use ceased after 6^th April 2007, the application has to be made within two years.

The land in question needs to have been used ‘as of right’, which means without force, secrecy or permission and this does not cease to apply if local residents sometimes defer to an alternative use.  The concept of ‘lawful sports and pastimes’, includes simple recreational walking and dog walking, as highlighted in a recent case before the Supreme Court.

The recent case of T W Logistics Ltd v Essex County Council

The Supreme Court case of T W Logistics Ltd v Essex County Council and another [2021] UKSC 4 illustrates the risk that TVG registration law presents to landowners, with the space in question far removed from the traditional concept of a village green.

The land in question was a patch of concrete on the edge of the estuary of the River Stour, between two operational areas of a private, operational port run by TW Logistics Limited (TWL). The area had been used by the public for walking, dog walking and socialising, for a period of 20 years, as of right.

During this period, the same land was also used by TWL for loading, unloading and storing materials temporarily, whilst also being crossed by heavy goods vehicles.

The area had been successfully registered as a TVG, a decision TWL challenged all the way to the Supreme Court.

The appeal on the part of TWL in the Supreme Court hinged on a contention that the TVG registration would lead to their commercial activities being criminalised and/or that the use of the land by local residents was not ‘as of right’.

The appeal from TWL was dismissed by the Supreme Court which found:

• After a TVG registration, local inhabitants have to exercise their rights over the land in a manner which is fair and reasonable, respecting the concurrent reasonable use by the landowner;
• TVG registration does not mean that the landowner continuing pre-existing activities, which are done with lawful authority or warranted by law, is criminalised;
• Health and safety legislation in respect to the land in question applies irrespective of TVG registration, and it should be possible to deal with concerns in a way which respects the rights and interests of all parties;
• The fact that the landowner is concerned about the local inhabitants’ use of the land does not impact on the quality of that use and whether it is happening ‘as of right’.

A cautionary tale for landowners

The ruling creates a degree of uncertainty for TWL, and for any landowner in a similar situation.  The TVG registration does not prevent their existing commercial use of the land, and does not suggest an absolute prohibition on changing or intensifying the use, but significantly, any changes must reflect what the public will tolerate, without the rights upon which the TVG registration was based, being compromised.

Cautionary tales such as these could lead to landowners choosing to prevent access to their land altogether, before it is registered as a TVG.  An alternative would be to have clear signs confirming permission is needed and access is not ‘as of right’.

Other steps could include careful monitoring of the site based on an understanding that casual activities such as dog walking could prompt a successful TVG application.  Landowners also need to remember that the condition of the land, be it a patch of concrete wasteland or a picturesque green, will not prevent a successful application for registration as a TVG.

The most important step is to take expert legal advice before acting to ‘protect’ land from TVG registration, as any steps to do so could inadvertently trigger an application being made.

If you have any concerns over land you own or the impact of Town and Village Greens, please get in touch with Jonathan Rowley, an experienced lawyer in the Commercial Property team here at Ansons, on 0121 716 3716  or email:  jrowley@ansons.law

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