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Town and village greens

There are two principle House of Lords cases dealing with town and village greens: R v Sunderland City Council ex parte Beresford (2003) and Oxfordshire County Council v Oxford City Council (2006). These pages deal with those cases.

There are also details of the changes made by the Commons Act 2006; three cases on "user as of right"; and a case on applications under the 1965 Act.

There is also a section below on Law Reform proposals in the Growth and Infrastructure Bill, which are intended to deal with the perceived abuses of the Town and Village Green system.

Human rights

R. (on the application of Newhaven Port and Properties Ltd) v Secretary of State for the Environment Food and Rural Affairs
[2013] EWCA Civ 673).

Summary

It has been held by the Court of Appeal s15(4) of the Commons Act 2006 relating to the registration of land as a town and village green is compatible with Article 1 of the European Convention on Human Rights.

Facts

An application had been granted to register a beach as a town or village green. The Port Authority (P) objected to the application. The grounds of objection included that section 15(4) was incompatible with P’s rights under Article 1 Protocol 1 of the Convention.

At first instance, the High Court rejected this ground of challenge and held that the statutory provision is not incompatible with Article 1 Protocol 1. P appealed on this point to the Court of Appeal.

Decision

The Court of Appeal dismissed the appeal.

Under s15(4) it was possible to apply to register, where, inter alia, the application for registration was made within five years beginning with cessation of use. This was designed to recognise a long-standing position. Lewison LJ:
    “It is plain that a policy which recognises and regularises a long-standing state of affairs is a legitimate aim. It is the basis for the law of adverse possession and the acquisition of easements by prescription.”
Accordingly, the Court found that it was justifiable for Parliament to seek to allow a period after commencement of the 2006 Act during which applications could be made relying on use which ceased prior to the commencement of the Act.


Law reform

Correcting perceived abuses of TVG system

Growth and Infrastructure Bill

Summary

On 18 October 2012 the Government published the Growth and Infrastructure Bill which contains three particular measures to control the perceived abuse of Town and Village Green legislation.

Statements terminating use as of right

Section 12 of the prospective Act would introduce a new s15A to the Commons Act 2006 and rules enabling landowners to deposit statements with the local authority which would be deemed, for the purposes of s15, to bring 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. Section 15(2)(b) requires such user to have continued up until the date of the application to have the land registered as a TVG so such a landowner statement would stop an application. Regulations may make provision for such statements to be combined with statements or declarations under s31(6) of the Highways Act 1980 by which the owner would identify those ways over his land which he admits to have been dedicated as highways.

Trigger and terminating events

Section 13 of the prospective Act would introduce a new s15C to the 2006 Act and a system for excluding the right to apply under s15(1) if a trigger event has occurred in relation to the land and making the right exercisable again only if a terminating event occurs, the trigger and terminating events being set out in 9 paragraphs of a new Schedule 1A to the 2006 Act. Trigger events include the first publicising of an application for planning permission; one of the related terminating events being the withdrawal of the application; and another being the expiry of the period within which the development must be begun without that happening. So if planning permission is granted and the development is begun in due time the right to apply under s15 would never be restored. Other trigger events are the publication of development plan documents or neighbourhood development plans which identify the land for potential development, the related terminating events including the revocation or withdrawal of the documents.

Fees

Section 14 of the prospective Act would modify s24 of the 2006 Act and enable regulations to be made providing for fees payable on applications under s15. This will give effect to the proposal in the consultation process to permit registration authorities to charge a fee for determining an application, up to a ceiling of £1,000, to introduce a requirement of commitment to the application and to deter speculative applications.

Comment

A key proposal of the consultation process that has not made it through to the draft legislation is the proposed character test to introduce a requirement that the land has characteristics approximating to the traditional village green with its memories of maypole dancing, cricket and warm beer that Lord Hoffmann spoke of in R v Oxfordshire County Council ex parte Sunningwell Parish Council [1999] 3 WLR 160 at 163E.

The Government expects the new provisions to come into force in the summer of 2013.


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