Tag Archives: Commons Act 2006

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 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.

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Barkas case: Judicial anarchy on the village green

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 Justices did so anyway.

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