Village greens under attack from developers and the law

The village green has always lain at the heart of the quintessential English village. For centuries village greens have been somewhere for villagers to graze their livestock. And in more recent times they have provided a venue for cricket matches and other sporting fixtures.

But this rural idyll could easily be shattered when a property developer comes along and wants to build houses on the village green. Can this happen? Surely the villagers have ancient rights to use the green and can stop any development?

Well, it seems that the answer is not so clear cut as might have been thought. Recent changes in the law could make it even easier for developers to build over ancient village greens. And a worrying decision from the Supreme Court seems to pave the way for developers to apply for de-registration long after a green has been registered.

It's not just village greens that are affected. There are many similar green spaces in towns and urban areas. Such spaces are often invaluable for sport and recreation, as well as providing a haven for wildlife. But these spaces are also under threat.

Land that comprises a town or village green is very often owned by a specific owner rather than by the inhabitants at large or the local council. Such landowners will often want to build on this land and in the past there was little to stop them.

Following pressure from groups which wanted to ensure the preservation of ancient commons and open spaces, a law was passed in 1965. This provides for the registration of village and town greens as well as common land and makes it an offence to build on such land once it has been registered.

County councils or other local authorities are responsible for maintaining the registers. But they are only required to register land when someone makes an application for registration.

Howeverm some aspects of the law with regard to town and village greens were unclear, such as what actually constituted a town green or who was entitled to apply for registration. As a result, developers were often able to build on land that had been used for recreation before anything could be done to stop them.

In 2006 a new Commons Act was passed that clarified the existing law. Anyone can now apply for registration of a piece of land if they can show that a significant number of the inhabitants of the locality ... have indulged as of right (i.e. without the landowner's consent) in lawful sports and pastimes on the land for a period of at least 20 years.

(There are also provisions that apply if the land has ceased to be used for sports and pastimes when the application is made, perhaps because a developer has prevented access to the land.)

It has generally been thought that once land has been registered as a town or village green, it would be difficult for a developer to come along and build over it.

However, the UK Supreme Court has just given a judgement in two similar cases. In both cases, developers had acquired land that was registered as a town or village green. They had then applied to have it de-registered many years after the original registration, on the grounds that the original registrations were incorrect.

The legislation does contain provision for the registers to be rectified where it is “just” to do so. But, perhaps surprisingly, no time limit seems to have been set on the period in which an application for de-registration has to be made.

In the recent cases before the Supreme Court, one piece of land had been registered in 1997, and the other in 2001 after a public enquiry and lengthy consultation with the villagers. The applications to de-register the land were both begun long afterwards.

Despite this, the Supreme Court held that while a delay in applying for de-registration was not immaterial when assessing whether land should be de-registered, there should be evidence of “detriment or prejudice” for it to be taken into account.

In the cases under consideration, the Court held there was no evidence of such detriment to the local villagers.

The Court went on to say there will be four categories of “detriment or prejudice” to be considered, i.e.

• Prejudice to the local inhabitants
• Prejudice to other individuals
• Prejudice to public authorities and the public they serve
• Prejudice to the fair hearing of the case

On this last point, the judgement stated: “The longer the lapse of time since the original registration, the more difficult it may be to have a fair trial of the issues relating to registration, perhaps in particular as to the length and nature of the use to which the land was put in the twenty years previously and to whether it was contentious or as of right.“

The judgement has been criticised, but since it has been given by the Supreme Court, the lower courts will have to follow it for the time being.

This judgement has been hailed as a victory for developers and a warning shot to what has become known as the "village green industry" - a reference to the numerous local groups seeking to stop development plans by applying for registration of land as a town or village green.

Another blow was stuck to this latter group when the government passed the Growth and Infrastructure Act last year. This contains various provisions restricting the right to apply for registration of land that is not already registered.

In particular the right to apply will cease when a planning application for the land is advertised or if the land is identified as development land in a development plan or draft plan published by a local authority.

Pieces of land that have been vacant and undeveloped for years are often used by local inhabitants for a variety of purposes - walking the dog, kids playing football, off-road cycling, etc.,etc. This new law is clearly aimed at preventing people from applying for registration of such land as town greens only after they hear that a developer has obtained planning permission or that a development is planned.

So it seems that at present the developers have the ear of both the government and the courts, and that no town or village green is now entirely safe from development.