Katie Paxton-Doggett explains how the Commons Act 2006 allows for the first time voluntary registration by landowners of greens


The Commons Bill received Royal Assent on 19 July 2006, implementing key elements of the Common Land Policy Statement published by the Department for Environment, Food and Rural Affairs (DEFRA) in 2002. The statement set out proposals intended to protect common land for current and future generations.



The latest phase of implementation was section 15, introduced through the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 and which came into force on 6 April 2007. It changes the legal definition of a town or village green and sets out the qualifying circumstances in which land may be newly registered in England.



Although commons have been recognised for the duration of legal memory, the previous system of registration was introduced in 1966 by the Commons Registration Act 1965, which is being replaced by the new Act.



It is estimated that there are currently about 3,650 registered town or village greens in England, with a total area of some 8,150 acres.



The Act states that any person may apply for registration of land as a green if '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'.



This means that any form of informal recreation, such as organised or ad hoc games, picnics, fêtes, amateur sports or even dog walking, on any type of land can eventually lead to registration as a green. Although many village greens are owned by town and parish councils, privately owned land can constitute as green. For the first time, the Act permits voluntary registration by landowners of greens. The landowner must obtain the consent of any lease or charge-holder of the land, such as a tenant or mortgagee, and must sign a statutory declaration.



The case of R v Staffordshire County Council, ex parte Alfred McAlpine Homes Ltd [2002] 2 PLR 1, QBD considered the meaning of the phrase 'significant number' and this will continue to be relevant to applications under the new provisions. The court did not accept that 'significant' in this context would mean a considerable or substantial number, but that the number of people using the land had to be sufficient to signify that the land was in general use by the local community. Clearly in a small community, even a large proportion of the local populace would not constitute a 'considerable' number but it would be 'significant'.



The requirement that use is 'as of right' means that the use was without force, secrecy, or permission from the landowner. Under the previous system, the requirement was wider in that people used the land with a belief that they had the right.



Furthermore, under the old legislation, the use of the land as a green had to continue up to the time of the application to register. The new provisions provide a period of grace, so that land will still be capable of registration as a green even where use has ended.



These provisions are in direct response to the Trap Grounds case (Oxfordshire County Council v Oxford City Council and another and others [2006] UKHL 25). In May 2006, the House of Lords ruled that an application for registration of a green must be made before, or immediately following, any challenge to use of the land by the landowner.



The new provisions restrict the ways in which a landowner can defeat an otherwise valid application. An application can no longer be thwarted by preventing access to the land or erecting a 'keep out' notice. Furthermore, there is specific provision that the use will continue to be regarded 'as of right' where a landowner grants permission for use of his land when there has already been 20 years' use 'as of right'. Previously, this would have been sufficient to prevent a successful application.



Where the use has ceased before the application is made, the relevant time-limit depends on whether use ceased before or after the date that the new legislation comes into force (6 April 2007). Where use ceases after this date, the application to register must be made within two years. This period is extended to five years where it ceases before the Act's commencement date.



It is this latter transitional provision which is causing controversy. Until 5 April 2012, five years after the relevant date, there will be a threat that an application could be made for registration as a green over land which is seemingly not used for recreational purposes. This leaves landowners and developers with a degree of uncertainty. Should they choose to proceed with building work and the land is subsequently registered, DEFRA is suggesting that the buildings may be ordered to be removed to enable the exercising of recreational rights over the land. Obviously, landowners who have held the land for a number of years should have an idea about the history of the land and whether an application is possible. More recent purchasers should ensure that the proper assurances are acquired on conveyance of the title.



It might be little comfort that the provisions will not apply where, prior to 23 June 2006, planning permission had been granted and development under that permission had begun on the land or any other land covered by the permission. At other times, planning permission will not prevail in the case of a green application.



Any period of statutory closure of land, for example during a foot-and-mouth disease outbreak, is disregarded when calculating the 20-year period of use.



Once registered, a green is protected by section 12 of the Inclosure Act 1845 (against injury or damage and interruption to their use or enjoyment as a place for exercise and recreation. Causing injury to village greens is a criminal offence) and by section 29 of the Commons Act 1876 (which makes encroachment or inclosure of a green, and interference with or occupation of the soil a criminal offence unless it is with the aim of improving the enjoyment of the green). These prevent a green from being developed or used for any commercial purpose by the owner, and will preserve it for local people to enjoy the land for recreational use.



The new registers will be administered by local commons registration authorities, which consist of county councils, metropolitan or unitary authorities and, in Wales, counties or county boroughs. Excluded areas for registration purposes are the New Forest, Epping Forest and the Forest of Dean. The registers will be open to inspection by the public and will be definitive proof of the existence of a green.



The regulations also introduce an updated application form and comprehensive guidance notes to help applicants and registration authorities complete the process. See www.defra.gov.uk/wildlife-countryside/issues/common/pdf/gnotes-reg-townvill.pdf.



It is expected that the commons registration authorities are likely to see a huge influx of applications under the new regulations.



Some of these will be applications which have been held over, pending the introduction of the new criteria. However, some are likely to be known to the authorities as subjects of applications unsuccessful under the 1965 Act. These repeat applications will only be considered where there has been a material change, whether that is as a result of the new regulations or different evidence that is being presented. The onus is on applicants to show that the case fulfils the new criteria and is within the relevant time-limits.



l The full text of the Commons Act 2006 can be found at: www.opsi.gov.uk/ACTS/acts2006/ukpga_20060026_en.pdf.

l The regulations are at: www.opsi.gov.uk/si/si2007/20070457.htm.



Katie Paxton-Doggett is a solicitor and producer at the Law Channel, Einstein Network