Village Greens: from cricket fields to housing estates
16th December 2009
by Kevin Mills
In a recent study carried out by the Countryside Community Research Institute and Asken Ltd, one of their main objectives was to consider which sites are more likely to be registered as a town or village green under s.15 of the Commons Act 2006 and why. This article will consider some of the different areas identified within the study and look at the features that may be relevant when determining whether a village green registration is likely to be applied for and the chances of it succeeding.
The historic view of a village green suggests that these tend to only belong to rural villages and the mere reference often conjures up images of balmy summer days watching a game of cricket. However, according to this latest research, you are just as likely to find a registered village green within a housing estate where a developer has simply set aside small grassed areas for public recreation. These areas are often a meeting place for local children and are usually surrounded on all sides by houses. Although these parcels of land tend to be rather small they do provide a useful amenity to local residents and create an area of green space in densely populated residential areas. Being surrounded by roads and houses means that these village greens are clearly defined and are easily identifiable by the relevant Commons Registration Authorities.
At the opposite end of the scale, land which is currently used for agricultural purposes, or has been used for agricultural purposes in the past, would seem to be less vulnerable to a village green registration. The type of agricultural use to which the land has been put may be relevant when assessing the likelihood of a successful registration particularly when considering the degree to which third parties have enjoyed unrestricted access to the land. Land which has been used for light grazing is, perhaps, more likely to be registered as a village green than land which has been used to produce an annual hay crop. The question the Commons Registration Authorities will consider is: "to what degree have third parties claiming village green rights deferred to the landowner(s) and the exercise of their rights?". The Court of Appeal decision in R (on the application of Lewis) v. Redcar and Cleveland Borough Council and another provides a useful commentary of the deference argument.
In addition to the small amenity areas within housing estates, developers often create playgrounds and parks, which they pass over to the local authority to manage (perhaps under the terms of a s.106 Agreement). These areas usually offer play equipment, marked out pitches and maintenance is carried out on a regular basis. When acquiring these areas, local authorities may exercise their powers under legislation such as the Open Spaces Act 1906 to designate the land for recreational purposes and create bye-laws. This has created problems in recent times where independent Inspectors have been appointed to answer the question: "if land is designated for recreational purposes under statute can this still be registered as a village green under s.15 of the Commons Act 2006 ".
Unfortunately this question has yet to be answered satisfactorily by the courts and apart from an obiter comment in the case of Beresford v. Sunderland City Council [2004] 1 AC, which suggested that registration of land as a village green was inconsistent with the acquisition and management of land under the Open Spaces Act 1906 and 1875 Public Health Act, there is no clear guidance on this point. The question of whether third parties are exercising their rights to indulge in lawful recreational pastimes "by right" or "as of right" has produced some apparently conflicting results when considered by independent Inspectors and until these decisions are challenged this point will remain uncertain.
Village green registrations are widely considered to be a useful tool against unwanted developments and will effectively sterilise a piece of land if registration as a green is successful. In an area of law which is constantly evolving, insurance provides a degree of comfort to wary developers. Issuing an insurance policy will provide unlimited legal expenses cover to fight the claim in the first instance and will ultimately indemnify the insured if the defence is unsuccessful and site is registered as a village green.