News & Insights // England's Green and Pleasant land

As another year passes without the sound of spades digging the footings for desperately needed housing stock, Laura Stevens takes a stroll down the meandering path to the village green and the associated complications for developers. 

A definition of a village green is noted in the Countryside and Rights of Way Act 2000 as land ‘on which for not less than 20 years a significant number of inhabitants of any locality, or neighbourhood within a locality, have indulged in lawful sports and pastimes as of right... and continue to do so'. 

In 1965, the first Commons Registration Act provided for registration of greens including ‘Class C Greens' relating to land on which 20 years use had accrued. In R v Suffolk County Council (ex parte Steed) (1996), the Court of Appeal held that ‘as of right' meant that people using the land had to have believed they had a right to use the land; this seemed to deviate from the traditional meaning of ‘as of right' in the context of prescriptive easements. 

In 1999, the House of Lords overturned Steed in R v Oxfordshire County Council (ex parte Sunningwell Parish Council) and things reverted to the original objective test of ‘as of right'. This ruling brought with it numerous cases and in response, landowners sought to stem the flow by enclosing their land as soon as they had notice of a village green application. This activity led to an amendment to the Commons Bill to protect applicants by enabling applications to be pursued even when public access had been prevented. 

The case of Betterment Properties (Weymouth) Limited (‘Betterment') v Dorset County Council (2010) is a useful gauge of what landowners ought to do to prevent a qualifying use of their land and also demonstrated the pre-emptive use of injunctions to stem potentially qualifying activity by the public. In Betterment, local residents successfully registered a village green but the landowner responded with an application to Court to cancel the registration (albeit under Section 14 of The Commons Registration Act 1965). The matter went to trial and the Court was able to review the basis for registration of the village green. The land had been used by the landowner for agricultural purposes and was surrounded by residential houses. The landowners had endeavoured to stop local residents using the land by erecting fences and putting up signs stating ‘Private', ‘Keep Out' and ‘No Trespassing'. Despite these efforts, members of the public made holes in the fences and vandalised the signs. The Judge found that the land had not been used ‘as of right' because use of the land had been by force. Importantly, the Court also confirmed that an injunction could be made which would stop any qualifying use of the site, despite the fact that the subjects of the injunction were unidentified. 

The 2008 case of Secretary of State for the Environment, Food and Rural Affairs v Meier & Ors also confirmed an injunction could be made in respect of unidentified trespassers. In this case, the Secretary of State for the Environment, Food and Rural Affairs applied for an order for possession of an area of woodland in Dorset along with an injunction against Travellers who might attempt to access the land and set up camp. The Court of Appeal granted a possession order and an injunction but the Travellers appealed to the then House of Lords (now Supreme Court). The House of Lords decided that a possession order for the wider woodland area could not be granted because the applicant had been occupying the land un-interrupted (i.e. a possession order can only be granted when a property is subject to trespass rather than threatened by trespass). However, their Lordships found that an injunction could be granted in respect of unidentified parties in order to prevent a threatened trespass as this may act as a deterrent. 

The Supreme Court has further considered the issue of village greens in 2010 - R (on the application of Lewis) v Redcar and Cleveland Borough Council. Five Law Lords unanimously found that the concept of "deference" (by an applicant) did not have any force in the context of a village green application. However, it is encouraging that their Lordships openly considered the principle of "give and take" between landowner and the Public. Both of these issues should give landowners some comfort that the process is not stacked entirely in an applicant's favour and that even in cases where a site has been used by the Public, there ought to be a collaborative approach to find some middle ground and preserve the landowner's and the Public's rights. 

The path to an increased supply of housing stock is strewn with obstacles. The village green issue seems only to confirm the need for proper, robust and proactive local planning to ensure that the Public has access to open space without a need to resort to blunt tools such as section 15 of the Commons Act 2006 (and all the consequences that come with it). But unless Localism delivers, developers will continue to be asked to carry the risk and a well-meaning scheme capable of benefiting the community at large may be scuppered by a minority of people keen to preserve the status quo through Nimbyism. In this context, title insurance can be used as a tool to give developers the confidence needed to tackle higher risk sites and thereby aid local authorities in their quest to add much needed housing stock, in line with the new government regulations. 

Laura Stevens