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- Town and Village Greens
First appeared in Informer: Real Estate Newsletter - Spring 2013
The last year has seen a glut of cases working their way through the courts as a deadline (for lodging applications to register those Town and Village Greens (“TVGs”) which have not been actively used for five years) passed last summer. Amongst these cases was Barkas v North Yorkshire County Council which reached the Court of Appeal. Barkas was about whether local residents could register a playing field in Whitby as a TVG, on the basis they had used it for many years for recreational purposes, despite the fact that the ground had historically been provided by the local authority for recreational purposes pursuant to its statutory powers under the Housing Act.
An area of land had been compulsorily acquired by the local authority in the 1950's for the creation of a housing estate and part of this had been laid out as a recreation ground for use by those houses. Under the original statutory controls the area had been zoned for "housing" and there was potential for the recreation ground to be re-purposed for new housing (which the residents were very keen to prevent).
Therefore, some local residents sought to preserve the recreation ground status by applying (under section 15 of the Commons Act 2006) to have it classified as a TVG. This section allows any person to apply to the commons registration authority to register the land as a TVG where a significant number of the inhabitants in the locality had indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.
Barkas looked at what is meant by use "as of right" and distinguished between:
- "by right" - meaning that the person had some specific legal right to use the land - whether under some arrangement with the landowner or by statute.
- "as of right" - meaning essentially that the person assumed they had a right of use but which was not the case.
Barkas’s application was ultimately unsuccessful because the Court held that the residents already had the right to use the recreation ground (pursuant to the council designating the land as recreational land) and therefore had used it ‘by right’ not ‘as of right’. If the residents already had the right to use the recreation ground there was no scope for the Court to grant them an additional right to use it (and register the land as a TVG). Barkas confirms that once a party has one class of legal right to use lands then the Commons Act will be inapplicable. There can be no doubling-up of statutory rights of access.
Although the Barkas case involved a local authority landowner, there are a couple of points that private landowners should take from the case where they allow public access to their lands.
- If access is under a statutory regime (for example, the right to roam or perhaps a public access scheme over agricultural lands) then the Commons Act should not apply.
- Landowners need to make it clear on what basis the access is permitted. The Court will be reluctant to imply a licence to use and a landowner would be wise to ensure that all members of the public have to gain access past very clear notices confirming on what basis the public is being admitted.
Likely future change – the Growth and Infrastructure Bill
On the subject of TVGs more generally, readers should also note that material changes to the TVG application process are due to be enacted in around the middle of this year under the Growth and Infrastructure Bill. The proposed changes aim to minimise some of the uncertainty, delay and cost caused to proposed developments by TVG applications, which can scupper a development at virtually any stage. For example, the proposed changes intend to prevent TVG applications being made after a planning application has been made (or permission has been granted) and/or if land is identified for development within a local or neighbourhood plan (or draft plan). We intend to report more fully on these proposed changes in our next Informer and as the position evolves, but for now, further information can be found here
Gary Pickard, Director, Real Estate practice at at Field Fisher Waterhouse LLP
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