Village Green Case Study
Scenario
Developer A has recently entered into a conditional contract with the Local Authority to purchase a piece of land for the purposes of carrying out a development of houses and associated infrastructure. The site is an open piece of grassland with a housing estate on three sides and a main road to the front.
Developer A has contacted First Title for village green insurance because of a perceived risk of a challenge under s.15 of the Commons Act 2006.
Issues
The reasons for the developer's concern are, as follows:
- There is evidence of worn paths crossing the site indicating that members of the public have used this in the past.
- Two hundred local residents were contacted in connection with the planning permission and the majority of these raised very strong objections to the proposed development. A group of local residents have set up an action group and have started a petition against the development.
- There are no fences or signs around the site indicating that this is private land and therefore nothing to stop the local residents using this for recreation.
The underwriting
For the purposes of underwriting this risk we would consider the following points to be relevant and require further investigation:
- The age of the surrounding properties. Clearly, if the housing estate was only built in the last 10 to 15 years and prior to this the site was surrounded by fields then it is likely to be difficult for local residents to demonstrate that a significant number of the local inhabitants have exercised their village green rights for the last 20 years.
- The history of our site. In order to satisfy the criteria of the Act our land must have been capable of being used for the purposes of lawful recreation for the last 20 years. If, however, our land was used for intensive agricultural farming up until 8 years ago then this will prevent village green rights from accruing prior to this point.
- Any fences erected following the introduction of the Commons Act on the 6th April 2007 are unlikely to offer any comfort and could in fact provoke somebody to make an application to protect their village green rights. On the other hand, if there is evidence of fencing or signs warning against trespassing at the site within the last 20 years then this may be enough to interrupt the prescription period.
- How regularly does the owner of the development land visit the site and what is their experience of third party rights being exercised? If the landowner visits the site on a regular basis at different times of the day and night and has never encountered third parties then this will add weight to the argument that village green rights have not been acquired. If the owner of the land has visited the site on a regular basis and encountered third parties indulging in unlawful pastimes this will be insufficient for the purposes of the Act.
- Do the planning objections reveal what rights, if any, are being claimed? If the planning objections indicate that the development land is simply used as a shortcut to the housing estate then this may give rise to an argument for prescriptive rights of access but wont necessarily support an argument for registration as a village green. It is far easier for a developer to accommodate third party rights of access into their development scheme than it is to accommodate a registered village green. It is anticipated that in the coming years more and more village green applications will be made with the sole purpose of blocking unwanted developments. Many of these will have no basis in law or fact and will be purely speculative applications, however, even a spurious application will be expensive and time consuming to deal with.
First Title Solution
At First Title we have developed a policy to mitigate some of the risks associated with village greens and our comprehensive cover will provide insurance against some or all of the following items:
- Legal fees associated with defending a village green application;
- Wasted costs if you are forced to remove a building from land that is subsequently registered as a village green;
- The resulting loss of land value should your land be registered as a village green.