Registration of land as a town or village green ("TVG") represents a significant risk to landowners seeking to develop open land. TVG status sterilises development land, robbing it of its development value.
Given its potential for stopping development, making an application for a TVG is a common tactic of local objectors. Whether or not a TVG is actually registered, the delay arising from the Commons Registration Authority's investigation of the application and decisionmaking may in itself cause the development project to go off.
The law
An application to register a TVG will succeed if the Registration Authority is satisfied that a significant number of local individuals have used the land for lawful sports and past times as of right continuously for at least 20 years. The application must have been made within two years of the claimed use ceasing.
The term "as of right" has a basic meaning in law – that use is without:
- the permission of the land owner;
- use of force; or
- secrecy or stealth.
However, the application of that basic meaning has become complicated in the context of TVG cases.
Could local people be said to be using the land "as of right" where they defer to the use of those permitted by the landowner to use the land? For example, by moving out of the way of golfers.
Is the local use "as of right" where there is no interaction at all between landowner and locals? For example, where a landowner uses the land during business hours but locals use the land in the evenings and weekends only.
The judgement in R (oao Lewis) v Redcar and Cleveland Borough Council & others (Rev 1) [2010] UKSC 11 provides useful general guidance on these points.
Also, specific examples of Inspectors' reports can be downloaded from the websites of Registration Authorities, as a helpful indication of how Inspectors considering the applications for Registration Authorities will deal with the evidence and issues. However, they are in no way binding on subsequent decisions and each case is fact-specific.
For clarity, it is worth noting that an application for registration is entirely separate from the planning process and so planning permission or a planning agreement in place with the local planning authority (usually the District Council) will not prevent the Registration Authority (usually the County Council) from registering the TVG if the application is successful.
Objecting to the application
A landowner faces a significant burden in defeating an application, even if there is little or no real evidence to support it:
- Registration Authorities do not and are not required to vet applications on receipt, to see whether they pass a basic evidential threshold. (There is no significant expense fee involved in making an application, so there is no disincentive to making spurious applications in the first place.)
- Whilst the applicant may have identified a large number of witnesses and others with allied interests, a landowner may find himself in real difficulty identifying witnesses with a clear recollection of 20 years' land use.
- To defeat such an application at inquiry in practice, it is not only necessary to challenge the (often flimsy) evidence of the applicants' witnesses, e.g. by good cross-examination, but also to put forward a credible alternative hypothesis as to what the land was actually being used for.
In terms of the underlying imperative (development of land), there is comparatively little that the landowner can do to have the matter expedited. The determination of such matters can often take up to two years.
Practical steps
There are, albeit limited, pre-emptive measures that a landowner can take to avoid TVG rights accruing through long use: the erection of physical barriers to entry and/ or the erection of carefully worded notices, placed prominently on and at the edges of the land in question. Those measures do, however, need to be balanced with the consideration that they might provoke an application for a TVG.
Any landowner or developer undertaking due diligence in anticipation of a planning application would be well advised to make discreet local inquiries as to use or, for example, to have an inquiry agent monitor the use of the land over a certain period.
Where an application has been made, legal advice and representation is recommended: although the "home-made" application and non-statutory inquiry may have an air of informality about them, the inquiry will invariably be chaired by a barrister or solicitor and the decision will be made on the basis of hard law, often after a proper forensic examination of the evidence (e.g. frequently after cross-examination of witnesses). As with any such forensic process, having specialist advice and representation is crucial to success.
If land is registered as a TVG, there is a process for removing land from the register where land has been incorrectly registered, but this is restricted to narrow statutory grounds. A landowner is certainly better advised to anticipate and avoid an application or, at least, to try to resist an application, rather than relying on those grounds.
Changes
DEFRA has recently (June to October 2011) conducted a formal consultation on reform of the law (both the substance and the procedure) relating to TVG. Thomas Eggar made a detailed consultation response advocating that:
- Applicants should pay a (not insignificant) fee for making an application.
- There should be a preliminary evidential test for the application to satisfy i.e. to filter out quickly unmeritorious applications.
- Landowners ought to be able to deposit a declaration with the registering authority stating that any use by locals is with permission and not to be treated as "as of right".
As DEFRA missed the opportunity to amend the Localism Bill to allow changes to the Commons Act 2006 by regulations, an Act of Parliament will be required to bring about these changes. DEFRA is expected to move on this in March 2012.
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