26.10.2018

What are they?

A town or village green is an area of open space which has been used by the inhabitants of the town, village or parish, for the purposes of lawful recreation for a significant period of time.

In general terms, “common land” means land owned by one person over which another person is entitled to exercise rights of common. These can include right to graze animals, right to fish, right to take gravel, stone and minerals etc.

The requirement for applications to register new town and village greens under section 15 of the Commons Act 2006 is that:

“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.”

How does this affect developers?

It is a serious issue for developers if land is at risk of registration as a green or common. As standard, a search can be carried out to identify whether land is currently registered as a town or village green.

However, the absence of registration at the time of purchase does not mean that an application for registration cannot be made in the future. It is a common approach from neighbouring residential owners to any potential development site to apply to register land as a common or village green to prevent developers being able to engage in any works on the site.

Successful registration preventing development is likely to devalue an area of land significantly.

The possibility of land being a town or village green, or common land is important, because once it is registered:

• It is a criminal offence to undertake any act which interrupts the use or enjoyment of a green as a place for exercise and recreation or to cause any damage to the green.
• It is an offence to drive over a registered town or village green without lawful authority and in certain other circumstances.
• It is an offence, to enclose or encroach on a green, or interfere with, disturb or build on a green, unless this is done “with a view to the better enjoyment of such town or village green.”
• The land can be subject to any registered rights of common which means that third party rights can be exercised over the land.
• There is a right of public access on foot to “access land” which includes all registered common land.
• It is an offence to drive over common land without authority.
• There may be restrictions on the owner’s ability to develop and use the land.

You must get consent from the Planning Inspectorate on behalf of the to carry out any works that would prevent or impede access to common land or for works for the resurfacing of land.

These works could include many activities required for construction of a development, such as:

• putting up new fences
• erecting buildings
• resurfacing the land
• building new solid surfaced roads, paths or car parks

 

Recent Case Law

The case of TW Logistics Limited v Essex CC & Another [2018] EWCA Civ 2172 involved an appeal by a landowner against a decision that part of its land on a working quayside had been properly registered as a town or village green:

 

“The area of land in question (the quayside) was adjacent to private quays in the port of Mistley, Essex. In 2008, following pressure from the Health and Safety Executive about the risk of employees and others falling into the water, the Landowner fenced a previously open quayside. Following a non-statutory public inquiry, the local authority registered the quayside as a town or village green pursuant to the section 15 of the Commons Act 2006 , in recognition of its use by local residents for lawful sports and pastimes throughout the previous 20-year period. The quayside was also used for port-related commercial activities throughout the relevant period, including the passage of dock-related vehicles, loading and unloading and occasional temporary storage of materials.”

 

The Landowner appealed to remove registration of the land as a town or village green on the basis that this would contravene the existing use as a commercial quayside. The courts refused the appeal on the grounds that provided the use was reasonably incidental, the two uses could effectively co-exist without breaching the relevant laws.

 

The decision is interesting as there may be future scope for existing development land to “co-exist” with town or village greens providing the use of each does not infringe upon the other.

However even in the above case, the registration of the town or village green is likely to impact significantly on the developer in the future when it comes to further development of the commercial areas of the quayside.

What to do next

When looking to purchase land for the purposes of development, it is essential that before committing to purchase any client undertakes a full range of searches to establish if the land may be subject to a registration as a common or a town or village green.

Here are Walker Solicitors we offer a comprehensive service for development clients in respect of such issues. Should you be looking to purchase any development land please contact us at the office to discuss and obtain a free quote.