Has the UK Government blundered in its attempts to protect landowners from local people applying to turn land into “village greens” to keep development at bay? There is good reason to believe that a new law intended to keep land safe for development could result instead in great swathes of English and Welsh countryside being turned into village greens. In fact landowners who takes advantage of the Section 15A amendment to the 2006 Commons Act to protect their development options may find themselves hoist with their own petard.
Land with village green status cannot be built upon or driven over. Applications to turn a piece of land, public or private, into a village green have been possible using ancient rights of “prescription” at Common Law but now via Section 15(1) of the Commons Act 2006. This (unamended) says anyone “may apply to the commons registration authority [eg county council] to register land to which this Part applies as a town or village green”; and at S.15(2) it explains this applies when
“(a) 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 [the prescription period]; and (b) they continue to do so at the time of the application”.
It is these rights the current Government sought to curb by allowing landowners to register potential town or village greens (TVG) with their county council, with the legal effect of halting the “lawful sports and pastimes” (though not necessarily doing so in practice).
But instead of curbing TVG applications the notices pinned to posts near popular walks or fields will alert locals that the land might be exposed to development if they don’t act. Their only logical response would be to put in village green applications wherever they can justify them. And in England they have only a year to do so from the publication of the notices.
The British Prime Minister, David Cameron, has declared children must learn about Magna Carta, the 13th century deal between England’s barons and King John, which he considers “the foundation of all our laws and principles”. He knows this because he has read it in a 1905 children’s book of history, Our Island Story.
In reality Magna Carta has little to offer the modern reader – not least because most of it has been repealed or else was suppressed almost as soon as it was issued. Here is what is left of it. So is there any point in studying it? Perhaps, but not for the Union Jack waving reasons that Cameron wants it taught – and certainly not because it demands “other people [than the king] should have rights” as he believes. Indeed, it was an attempt to protect the privileges of an elite, not the rights of “the people”.
The background to Magna Carta was the various foolish wars prosecuted by the English kings – Richard the Lionheart’s Crusade in the Middle East against Islamic forces seeking to dismiss the Christian westerners from their tottering Levantine holdings and King John’s attempt to assert his rights over France. None of this came cheaply, so the issue underlying Magna Carta was: could taxes be levied by the king without the consent of “the people”?
In the 12th and 13th centuries, of course, “the people” was the barons and clergy and a small number of freemen, and when the barons revolted against King John (who succeeded his brother Richard to the throne in 1199) they were revolting against both the excessive taxations, required as a result of John’s French war, and the centralised power of the state, the absolutism that had trampled over their feudal rights – the rights they had in the lands they held as fiefs of the king.
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Was the Supreme Court right to overrule the leading village greens case of R (Beresford) v Sunderland City Council (2003) in its recent judgment in R (Barkas) v North Yorkshire County Council (2014; pdf)? There is a strong argument to suggest Lord Neuberger et al have overstepped the mark in declaring Beresford no longer good law – in a gross breach of the rules of judicial precedent on which our law relies. The result will be that it will be far more difficult from now on to have land designated as village greens, protecting it from development.
The Supreme Court is supposed to accept earlier judgments of the same court, even if the current incumbents think they are wrong, unless there are very good reasons not to, such as a material change in circumstances or strong public interest. That allows for legal certainty, so people can act according to the known law, as examined and approved by the highest court in the land, rather than seek to rerun a similar case a few years later in the hope that the judicial dice might fall a different way. That is the principle that Neuberger et al have thrown to the four winds in disapproving Barkas.
There are supposed to be limitations on the rare occasions when the Supreme Court can breach precedent and overrule itself. In particular the overruling must help to resolve the case before them. That was not so in Barkas. Lower courts and the Supreme Court itself had all resolved the case (rejecting the application to turn a piece of land in Whitby into a village green) by distinguishing it from Beresford – different facts, different law. There was no requirement to then go on to overrule Beresford – indeed the rule is that they should not go on to overrule the earlier case. But the Supreme Court Lord Justices did so anyway.
The Maria Miller expenses case has raised the issue of why members of the UK Parliament “mark their own homework” regarding their own ethical issues. Calls have been made to give lay members (ie non-MPs) on the Commons Standards Committee a vote on breaches of expenses rules – or to take the issue away from MPs altogether. Further, the idea of allowing MPs’ constituents to recall and “sack” MPs if not satisfied by their performance has also been raised.
Conservative MP Geoffrey Cox QC has warned against siren voices demanding a watering down of parliamentary privilege as a result of the expenses affair. That would be a dangerous constitutional change from the position in which MPs order their own affairs. If outsiders interfere “it can have the power to change history” he told the BBC’s World At One. It is a constitutional issue.
Fundamentally Cox is right. The privilege the House of Commons has to order its own affairs goes back to one of the earliest struggles with James I – who was no fan of the Parliament he was forced to work with when he became King of England in 1601.
He is reported to have told a Spanish ambassador: “The members give their opinion in a disorderly manner. At their meetings nothing is heard but cries, shouts and confusion. I am surprised that my ancestors should ever have permitted such an institution to come into existence.”