last posted on common land and town and village greens, there
have been new cases. Given the impact common land can have on
developments, applications to register land as a town or village
green are often appealed so it can take a long time for clear legal
principles to emerge. We have pulled together the latest in this
The Commons Act 2006 outlines the right to have a piece of land
registered as a town or village green
('TVG'), provided that "a
significant number of the inhabitants of
any locality, or neighbourhood within a
locality, have indulged as of right in
lawful sports and pastimes on the land for a
period of at least 20 years".
Beaches – can they be TVG's?
In 2015, the Supreme Court ruled that
the beach in Newhaven Port v East Sussex
should not be registered as a TVG, contrary to the
Court of Appeal in 2013.
The important question which the
Supreme Court had to address, was whether the use of the land by
the public was 'as of right' and therefore
capable of registration as a TVG or 'by right' and
therefore not capable of such registration. To register as a TVG,
the right must have come through use by the local community
('as of right') and not by way of specific permission from
the landowner ('by right').
In Newhaven, the rights exercised by
the local inhabitants were consistent with the byelaws which were
incompatible with TVG use. Landowners took this as good news as it
confirmed that use 'by right' would not qualify for
registration as a TVG. Developers and landowners were hopeful that
they could rely on a statutory purpose to prevent a successful TVG
Statutory purpose and use as common land
Landowners' hopes were rather
crushed in the first case to deal with statutory incompatibility
since the Newhaven case. In June 2016, the High Court in
Lancashire County Council v Secretary of State for
Environment Food and Rural Affairs held that
statutory purpose alone is not sufficient to defeat a TVG
application. In that case, undeveloped land adjoining a primary
school could nonetheless be registered as a TVG, as the educational
functions could still be carried out even though the public had a
right to use the land (in contrast to Newhaven where use as a TVG
was incompatible with the Port Authority's statutory powers and
duties of operating a working harbour). This is High Court and not
part of the main judgment but shows how complex the argument may be
when a common right is inconsistent with the statutory purpose of
More recently, in R (on
the application of NHS Property Services Ltd) v Surrey County
Council, a decision to register land belonging to the
NHS as a TVG was overturned. The land was held for defined
statutory health-related purposes and the erection of buildings or
facilities to provide treatment would plainly conflict with
recreational use. It was also held that Article 6 of the European
Convention on Human Rights and the common law require the giving of
reasons where a TVG application is granted.
What can landowners do?
Not much has changed since we last
posted but public authorities may wish to consider whether their
land is held pursuant to a specific statutory purpose which may be
incompatible with TVG use. In summary, landowners can consider
doing the following to protect their position:
It is now clear that TVGs are capable
of existing hand in hand with statutory purposes. The statutory
purpose must be incompatible with TVG use in order to defeat a TVG
application. The recent caselaw appears to demonstrate a common
sense approach by the courts to a sensitive and controversial
issue. However, it seems that the law is far from settled in this
As soon as you are aware that the
land is being used for recreational purposes, erect clear signs
which convey your objection to that particular activity
Erect a fence to enclose it from the
If such signs and fences are
vandalised, make note of the date, and re-erect the signs and
Consider taking legal action
Generally, you must be seen to be
doing everything you can to prevent such use of your land, be
persistent, and use proportionate measures to contest and interrupt
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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