Category Archives: Town & Village Green Registration

Village Green used of right not as of right so registration thwarted

Registration of a town or village green under section 15(2)(a) of the Commons Act 2006 (“the 2006 Act”) depends on the acquiescence or toleration by the landowner of a significant number of inhabitants of any locality (or neighbourhood within in it) indulging in lawful sports and pastimes on his land over a 20 year period without having any right to do so, but as if they had i.e. “as of right”.

The legal meaning of “as of right” is the opposite of “by right”.

If a person uses privately owned land as if he has a right to do so but his use is not permitted by its owner, his use is “as of right”.

But, if his use has been permitted by the landowner, his use is rightful – it is “by right”.

It makes no difference to the right, the public has to use the land, whether it has been made available for public recreational use by an owning local authority, or under an arrangement which a non owning local authority has with the actual landowner.

During that arrangement, the landowner has permitted (or allowed the local authority to permit) the public to use the land for recreational purposes.

The local authority’s powers to permit that use may be explicit or implicit in the enactment under which the local authority makes the arrangements, and, the local authority making the land available for use for the recreational purposes is sufficient communication to the public of that permission (if communication is in fact an essential element).

During the subsistence of those arrangement neither the landowner nor the authority can assert that a member of the public using the land for those purposes is a trespasser.

Members of the public would not be using the land “as of right” i.e. merely with the tolerance, as opposed to explicit permission of, the landowner, such as to found a prescriptive right.

Instead, they would be using it “by right” for a purpose for which they had been invited to use it. In other words, use by the public would be with permission from the landowner (or from a person the landowner had authorised to give it) and “by right”.

In the recent Planning Court case of Naylor v Essex County Council [2014] the claimant challenged the respondent’s refusal to register the relevant land as town or village green based on the fact that the public’s use of it for lawful sports and pastimes had been “by right” during the 20 year period before the application for it’s registration was made, rather than being “as of right”.

The relevant land was owned by Silverbrook Estates Limited. But, except for some works in 1993, the land had been managed and maintained by the District Council as if it were an area of public open space or parkland available and open for all to use, at least from 1989-90 when it was included in a grounds maintenance contract let by the District Council.

The Planning Inspector had found it probable there had been a much longer term arrangement for it’s management and maintenance going back to before 1974. The most probable explanation was that the District Council had managed and controlled the land under sections 9 and 10 of the Open Spaces Act 1906 (“the 1906 Act”) or section 164 of the Public Health Act 1875.

So the Inspector had been entitled find that the use made of the land for lawful sports and pastimes had been “by right” (not “as of right”) during part of the 20 year period before the application for it’s registration was made.

This was based on fact that the relevant land had been made available by the District Council for such use by the public, with the agreement of the landowner, under the powers which that authority had vested in it by section 9 of the 1906 Act.

This blog has been posted as a matter of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Public authority land allocated for recreational purposes not registrable as village green

Where land is provided and maintained by a local authority under section 12(1) of the Housing Act 1985 (“1985 Act”) or its statutory predecessors, is the use of that land by the public for recreational purposes “as of right” within the meaning of section 15(2)(a) of the Commons Act 2006 (“2006 Act”)?

The meaning of “as of right” is, the opposite of “of right” or “by right”.

If a person uses privately owned land “of right” or “by right”, the use will have been permitted by the landowner – so the use is rightful.

However, if the use of the land is “as of right”, it is without the permission of the landowner, and so is not “of right” or “by right”, but is actually carried on as though it were by right – and therefore “as of right”.

The interpolation of the small word “as” makes “as of right” effectively the opposite of “of right” or “by right”.

The law distinguishes between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand.

Use acquiesced in by the owner is ‘as of right’; acquiescence is the basis of prescription. But, use with the licence or permission of the owner is not ‘as of right.’

Permission involves some positive act or acts on the part of the owner.

On the other hand passive toleration is all that acquiescence requires.

In the recent Supreme Court case of Barkas, R (on the application of ) v North Yorkshire County Council & Anor [2014], Helredale playing field (“the Field”) was in Whitby, and owned by Scarborough Borough Council (“the Council”).

The Council laid out and maintained the Field as “recreation grounds” pursuant to section 80(1) of the Housing Act 1936, with the consent of the Minister as required by that section, the Housing Act 1957, and latterly section 12(1) of the 1985 Act.

Helredale Neighbourhood Council applied to the North Yorkshire County Council to register the Field as a town or village green under section 15 of the 2006 Act.

The Supreme Court said so long as land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreational purposes, and so use the land “by right” and not as trespassers, so that no question of them using it “as of right” could arise.

Whether user was “as of right” should be judged by “how the matter would have appeared to the owner of the land”, which must be assessed objectively. Here a reasonable local authority in the position of the Council would have regarded the presence of the public, walking with or without dogs, taking part in sports, or letting their children play, as being an exercise of the public’s statutory right to be on the land and to use it for those activities: since the Field was being held and maintained by the Council for public recreation under section 12(1) of the 1985 Act and the Acts that preceded it.

Where a local, or other public, authority has lawfully allocated its land for public use (whether for a limited period or an indefinitely), it could scarcely be appropriate to infer that members of the public have been using the land “as of right”, simply because the authority had not objected to their using the land. To find the contrary would take very unusual and exceptional facts.

In such a cases, Parliament could hardly have intended that such land would become a village green just because the public had used it for twenty years.

Not only would the local authority not be expected to object to the public use: to have done so would have been positively inconsistent with their allocation decision.

A private owner, on the other hand, would be expected to protect his or her legal rights because he has no legal duty and no statutory power to allocate land for public use, and no ability to allocate land as a village green.

So the Helredale Neighbourhood Council’s appeal failed and the land was not registerable as a Town or Village Green.

This blog has been posted out of general interest It does not replace the need to get bespoke legal advice in individual cases.

A reasonable opportunity may exist to correct Town & Village Green Application

Applications (“TGVA”) to register land as a town or village green (“TVG”) under the Commons Act 2006 (“CA 2006”) must comply with certain regulations and be filed within specific time periods.

If someone messes up their application to register a town or village green and later the deadlines for making a fresh application expire, can the original application be corrected later even though the applicant would be out of time for making a new corrected one?

In Church Commissioners for England, R v Hampshire County Council & Anor [2014] Mrs Guthrie’s application was originally lodged in 2008. Despite legion opportunities to correct it, her application was persistently defective. Problems included:

i) no date for the cessation of recreational use as required by form 44. She just said it was “a period of months during the summer of 2003”;

ii) The application failed to identify the locality or neighbourhood to which the alleged TVG related as required by form 44;

iii) The statutory declaration supporting the application was defective – irrelevant sections were not crossed out.

At the next attempt the Council pointed out Regulation 5(4) and said that unless the application was put in order they would have to reject it as not having been duly made. However, it did not impose a time limit for filing a duly completed application on this occasion as it should have done.

On 1 September 2009, the Council gave notice to the landowner affected, the Church Commissioners, of Mrs Guthrie’s TVGA as required by Regulation 5(1).

On 23 October 2009, Church Commissioners objected to the Application saying that the application as originally filed was defective and that it was not duly completed until more than 5 years from the week commencing 13 July 2003 being the date Mrs Guthrie now said the Commissioners had enclosed the land.

The court of appeal ruled that if the application was non compliant, Regulation 5(4) enabled the registration authority to reject it without having to give notice to the landowner and others.

But if the registration authority thought that the applicant could correct the errors, it can give them a reasonable opportunity to do so. If within that reasonable opportunity accorded, the applicant corrected the errors, the original application had full force and effect. So the Regulation must be retrospective.

The court thought it significant that:

-the Regulations throughout referred to just the one and the same application;

the application is given a date on the receipt. Dating the application must be for some purpose.

Somewhat cryptically the Court added:

“Furthermore there is no reason why Regulation 5(4) should restrict the opportunity for correction to a reasonable opportunity if even a correction made within a reasonable opportunity achieves nothing that would not have been achieved by a new application.”

So Regulation 5(4) provided a means for curing deficiencies in an application which did not provide all the statutory particulars, and, once an application was cured, it is to be treated as duly made on the date on which the original defective application was lodged. So the court dismissed the Commissioners appeal on that issue.

The court said that it would have been better if Parliament had provided for the landowner to receive a precautionary notice as soon as an application was received. Extensions of time must be within reason. The Regulations did not require the landowner to be given notice that the application had been received and this could only be an indication that the interval of time between the date of the application and its proper completion must be intended to be short.

Whether an applicant had had a reasonable opportunity was a question of law for the court. Parliament had not used words such as “an opportunity which in the opinion of the registration authority is reasonable”. So there was no room for the Wednesbury test here.

The court not surprisingly found that a reasonable opportunity was exceeded in this case. So the Commission’s appeal succeeded in the end.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Signs Prevented Town and Village Green Use Qualifying for Registration as Of Right

Section 15(3) of the of the Commons Act 2006 effectively provides that if the use of land “as of right” had ceased before the commencement of the two-year period prior to the application being made, there can be no registration of that land as a town and village green under that application.

Burrows (on behalf of Wraysbury Action Group), R (on the application of) v The Royal Borough of Windsor and Maidenhead & Anor [2014] challenged the decision of the Royal Borough of Windsor and Maidenhead (“the Local Authority”) to refuse registration of land called Thamesfield in Wraysbury as a town or village green under section 15 of the Commons Act 2006.

A planning inspector “conclude[d] that although Thamesfield ha[d] been used for lawful sports and pastimes by significant number of the local people for more than twenty years, such use [had] bec[o]me contentious and ceased to be use “as of right” in July 2007 and that the application fail[ed] because it was not made within two years of that cessation.”

The wording of the signs erected at some, but not all, entrances to the land in early July 2007 was:

‘PRIVATE PROPERTY

Access to this land is by permission of the owners’

The local inhabitants argued that they were ambiguous as to whether the signs are prohibitory or permissive signs. They could mean that the land was privately owned, but the owner gave general permission to all and sundry to access the field. Or, it could mean that no one was entitled to access Thamesfield without the permission of the landowners.

This case involved a permission application, to establish whether the residents had an arguable case for judicial review of the earlier decision to refuse registration so the Judge did not necessarily follow through argument in the same detail that would have been necessary if he had been dealing with this on a substantive basis and, therefore said his conclusions should not be seen (or cited) as in any way authoritative.

The crux of the case was whether the effect of the words was prohibitory or permissive seen in the full context in which they were used. Only in the former case could the sign operate in favour of the landowner.

To an ordinary reasonable reader the words used on the signs could only convey the message that there was no right to use the land. Although they were not at every entrance they were sufficient to give that general impression.

“As of right” does not mean “of right”. Its meaning is closer to “as if of right”…. So paradoxically a trespasser (provided he acts peaceably and openly) may acquire rights by prescription in spite of, or reinforced by acting in defiance of, a “Keep Out” sign, whereas a licensee, who enters the land with the owner’s consent, will probably not acquire such rights.

This Judge in this case did not follow that argument through to the same conclusion and appears to have taken the narrower approach that the presence of signs whether or not backed up by any enforcement action somewho prevented the people who defied them acting “as if they had the right” to be there for recreation.

This blog has been posted out of general interest and it does not remove the need to get proper legal advice in individual cases.