Government blundering around village greens

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 take 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 legal background
To make use of someone else’s land (private or publicly-owned) “as of right” means “nec vi, nec clam, nec precario; not by force, nor stealth, nor the licence [permission] of the owner”. In other words the owner knows about the activities taking place there but neither sanctions them nor sets up barriers to them.

Building is banned on village greens as a result of the Inclosure Act 1857 and the Commons Act 1876. Applications for village green status have been used by locals to protect land from building when development plans are issued or planning permission sought. Section 16 of the Growth and Infrastructure Act 2013 stymied this process by banning village green applications from the point planning applications are made public by the council or as a result of various other planning “trigger events” in Schedule 4. These include when “a draft of a development plan document which identifies the land for potential development is published for consultation”.

This leaves people who know the land has been used for years for “lawful sports and pastimes” in the position of having to pre-empt planning applications since they cannot now act after the event. To try to counter this, the Government came up with a system for landowners to deposit a Section 15A declaration with the council about land they fear could be turned into a village green.

The new law: landowner deposits
Following an amendment set out in Section 15 of the Growth and Infrastructure Act – incorporated into the Commons Act 2006 as Section 15A(1) – a landowner may deposit a map and a landowner statement about the land with the local registration authority, mostly county councils.  The wording of these deposited documents does not fully explain their purpose – but they are a declaration that the landowner unilaterally terminates all such legal sports and pastimes – even if they haven’t actually ceased and even if in reality they continue. They say “the statement is to be regarded, for the purposes of section 15, as bringing to an end any period during which persons have indulged as of right in lawful sports and pastimes on the land to which the statement relates”.

It’s rather a difficult notion to get one’s head around. Since the activities have been going on “nec precario” (without permission), the landowner’s deposit is not a withdrawal of permission. And since Section 15A(2) of the Commons Act adds that the new Section 15A(1) “does not prevent a new [20-year prescription] period commencing”, it follows that the deposit is not a ban on those activities. They can continue as before, apparently “nec precario“.  The landowner statements simply bring to an end any current period of recreational use “as of right” over the land.

So if people have been walking dogs and playing tag over the land for 19 years, tough. On the 20th anniversary of such activities a year later, they will not be considered to have reached the 20-year prescription period for declaration of a town or village green if the landowner has already made the S.15A deposit at the county council. But if local people have already reached the 20-year period when the deposit is made, they can still apply for TVG status – but they have to act pretty quickly.

The Commons Act 2006 allowed a two-year grace period after the legal activity had ceased for the village green application to be made. This, presumably, was to give locals a fighting chance if the landowner suddenly put gates and fences up or sought in other ways to halt the activities. This period has been reduced in England (but not in Wales; Scotland’s law is wholly different) to one year (GIA S14). So once the council has registered the landowner’s deposit, duly posting the tatty little map with the statement on a post somewhere by the piece of land, anyone who has an objection must put in an application for a village green within a year. As, for example, Wakefield council puts it: “The deposit of a landowner statement triggers a one-year period during which village green applications can be made to the Council.”

Problems for landowners
And that is presumably exactly what local people who want to preserve a piece of land will do. The paradox of this law is that it could end up with village greens being declared where otherwise things would have carried on as before. In many cases the landowners will not have immediate plans for development – or even long-term plans – but as soon as they deposit their map and statement, locals will assume development is planned somewhere along the line. As long as village green movements act quickly whenever a landowner puts in a deposit, they can counter with a TVG application. The landowners, therefore, might have been better to let things ride until they actually wanted to develop the land – at which point the GIA “trigger point” Schedule 4 protection would kick in (contained in the amended Commons Act as Schedule 1A).

The council must judge any TVG application on the objective criteria under the Commons Act, which allows that: 

Anyone can apply provided that it can be shown that the land has been used:
  ‘as of right’ (ie without secrecy, permission or force);
  for a period of at least 20 years;
  for the purposes of lawful sports and pastimes;
  by a significant number of the inhabitants of any locality, or of any neighbourhood within a locality; and
  use has continued up until the date of application or, if this is not the case, use ceased to be ‘as of right’ no more than one year prior to the date of application.

So a council cannot really refuse such an application, fully justified and proved, though a landowner may well challenge it under any of those heads: was it really nec vi, nec clam, nec precario? Was it really 20 years or more? Were there really “sports and pastimes”? Was it a “significant number” of people? Were they inhabitants of the locality? What is a “neighbourhood within a locality”? Did use continue up to the application or up to a year before?

There is case law on some of these matters. And that is another reason why the Government may have blundered. It may well have sparked a legal powder keg with two sides now desperate to prove their points in the courts, landowners and locals battling over patches of land as if in a new Civil War. And that didn’t end well.

Note: Those interested in the town and village green movement will certainly be interested in this post: Barkas: Judicial anarchy on the village green    

The Open Spaces Society has information about landowner statements here
Proposals in Wales for a similar regime are covered by the OSS here    

Rights of way
There was already a provision to deal with prescriptive rights of way before the GIA changes. Prescriptive rights of way are, in effect, new public paths (or even roads) over land, again brought about by local usage over 20 years nec vi, nec clam, nec precario. (These are not the traditional public rights of way with generally much longer histories.) Landowners have been able to protect themselves from the creation of prescriptive rights of way by lodging a Declaration to the Country Council under s.31(6) of the Highways Act. So Section 31(1) says: 

“Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.”

But Section 31(6) of the Highways Act 1980  allows for the landowner to deposit a map and highways statement the council showing the old public rights of way and highways that the owner admits exist but excluding any new ones. 

Note: the Commons Act says at S.15 (6): “In determining the period of 20 years … there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment” eg if temporarily barred for local authority sanctioned works.)

Cases
The Law Society Gazette summarises some of the case law here
Paddico v Kirklees et al
McAlpine Homes v Staffordshire
Here is a recent example of a (failed) TVG application indicating the sort of issues and hurdles involved:
Brent Council and Willesden Green Library  

Commons Act 2006 amendments
S. 15A Registration of greens: statement by owner
(1) Where the owner of any land in England to which this Part applies deposits with the commons registration authority a statement in the prescribed form, the statement is to be regarded, for the purposes of section 15, as bringing to an end any period during which persons have indulged as of right in lawful sports and pastimes on the land to which the statement relates.
(2) Subsection (1) does not prevent a new period commencing.
(3) A statement under subsection (1) must be accompanied by a map in the prescribed form identifying the land to which the statement relates.
(4) An owner of land may deposit more than one statement under subsection (1) in respect of the same land.
(5) If more than one statement is deposited in respect of the same land, a later statement (whether or not made by the same person) may refer to the map which accompanied an earlier statement and that map is to be treated, for the purposes of this section, as also accompanying the later statement.
(…)
S. 15B Register of section 15A statements
(1) Each commons registration authority must keep, in such manner as may be prescribed, a register containing prescribed information about statements deposited under section 15A(1) and the maps accompanying those statements.
(2) The register kept under this section must be available for inspection free of charge at all reasonable hours.
(3) A commons registration authority may discharge its duty under subsection (1) by including the prescribed information in the register kept by it under section 31A of the Highways Act 1980 (register of maps and statements deposited and declarations lodged under section 31(6) of that Act).