9 June 2010

Legal State Of Play, At Start of New Parliament

In Local Government Lawyer on 26 April 2010, Paul Denholm examined the increasingly common practice of invoking ‘village greens’ laws as a means of thwarting planned and legitimate development. Many of the claims that a property is a 'village green' are completely spurious.  Here is an edited extract from the excellent article:

Local activists opposed to developments are increasingly gaining the whip-hand with frivolous 'village green' applications, claiming recreational use of land that is part of development sites. It is a highly effective tactic.

The claims are cheap and easy to make without the applicant having to give any undertaking for damages, as would be the case, for example, if an injunction were being sought through the courts to enforce a restrictive covenant.

The opponents of development make extensive use of social networks and websites to help them gain support for the registration of a Town and Village Green application.

A recent study by Defra of 48 Town and Village Green applications revealed that, in all 48 cases, the application for Town and Village Green status would have jeopardised the ability to develop the site. In the successful cases, legitimate development plans would have been permanently stopped, including schemes driven by local authorities such as leisure facilities, employment generating developments, regeneration and affordable housing.

The impact of registering a claim is always damaging. At best, an application can delay a local authority’s regeneration scheme or other development. At worst, a successful registration will put an end to the scheme. It will usually cost a fortune in legal fees.

What’s more the local authority and its partner developer could have incurred huge costs on an abandoned scheme and be left with land of little value. The local authority may also suffer colossal embarrassment for non-delivery of a regeneration scheme and its associated social and economic benefits.

Successful applications have resulted in town or village green registrations over beaches, wasteland and highway verges.

Recent high profile examples of this activity have generated media interest and public debate. Many applications have been highly contentious. The highest court in the land has considered the law relating to the registration of new town or village greens on four occasions in the last 10 years, with decisions in R v Oxfordshire County Council v Sunningwell Parish Council [2000] 1 AC 335; R (on the application of Beresford) v Sunderland City Council [2004] 1 AC 889; Oxfordshire County Council v Oxford City Council [2006] 2 AC 674; R (on the application of Lewis) v Redcar and Cleveland Borough Council & anor [2010] UKSC 11 on 3 March 2010.

Prior to the Supreme Court’s recent decision in the Redcar case, a line of legal authority was being developed by the courts to restrict the registration of new town or village greens.

According to this line of authority, if there was a material conflict between the recreational use of land by a significant number of the inhabitants of an area, and that recreational use ‘deferred’ to that of the landowner, that recreational use did not meet the statutory requirement in s15 of the Commons Act that such use be ‘as of right’.  This is because it did not have the outward appearance to the landowner of the assertion of a legal right. However, in the Supreme Court’s decision in the Redcar case, it was held that ‘deference’ by recreational users does not prevent recreational use from accruing use ‘as of right’.

As a result of this recent decision, landowners will need to take active measures to exclude trespassing recreational users and/or mitigate and manage their risks by ensuring that access to the site is by permission only.

If the number of applications to register town or village greens continues to thwart developments in increasing numbers, it is conceivable that this will force a review and eventual reform of the law.

Defra has already stated that it proposes consulting on whether there is a need for reform of the town and village green registration system, and the options for reform that exist.

Paul Denholm is First Title’s expert underwriter in this field. He is also a planning lawyer who has worked in local government in England and Wales, as well as internationally

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