27 May 2010

Landowners and developers of open spaces need to be particularly astute to the implications of a recent and fourth decision by the Supreme Court (formerly House of Lords) which has again reversed lower court determinations on town and village green (TVG) applications.

The most recent Supreme Court decision in R (Lewis) v Redcar and Cleveland Borough Council has effectively made it easier for the public to register TVGs in order to prevent land from being developed.

Council-owned Coatham Common was used as a golf course but local residents were able use the space for recreation and to cross the Common, giving way to golfers when they were playing shots. This “give and take” approach allowed both golfers and the public to continue their enjoyment of the common harmoniously. However, when the land was put forward for development, an application for registration as a TVG was made.

A TVG can be registered if a significant number of local inhabitants have used the space for lawful sports and pastimes “as of right” continuously for at least 20 years. This current system was introduced by the Commons Registration Act 1965 and applications were made easier through the Commons Act 2006.

Both the High Court and Court of Appeal determined that the public’s use of the land had not been “as of right” because the local inhabitants had “overwhelmingly deferred” to the golfing use of the land.

The Supreme Court, however, overruled these decisions, finding that the Common was a village green and that only if the recreational use is by force, secrecy or permission will it fail. In considering the test of “how the matter would appear to the owner of the land” it found that it was difficult to see how a reasonable owner of the land could conclude that the local residents were not asserting a right because they deferred to the golfers.

Landowners and developers now need to ensure that they take steps to control or even restrict use of the land, for example, by erecting fencing if practical, putting up clear signage stating that access is by permission only or by entering into express agreements for the shared usage, preferably before the 20 years usage accrues. Once it has accrued, a TVG application may be made at any time provided that the use does not stop. In the event it does, a further grace period of 2 years follows in which an application can be made. However, a landowner must be aware that any movement to stop the use of the land may in fact trigger the one application they are trying to prevent!

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