“There is no principle of law which requires that there be conflict between the interest of users and those of a proprietor” Lord Jauncey of Tullichettle.
The regulation of town and village greens (TVGs) in England and Wales has resulted in a collision between the private property rights of landowners and the public law and policy justifications for TVGs (para. 27-040) ( Harpum et al., 2008 ). In particular, landowners have become subjected to a range of public law requirements, including environmental constraints, which a diverse group of stakeholders seek to exert. It is this increasing incursion of environmental issues into TVG disputes which can be singled out and which brings into sharp focus the tension that exists when the state, through the public law, restricts private property rights. This issue has been highlighted throughout the consultation process which has culminated in the Growth and Infrastructure Bill 2012.
Registration of land as a TVG demonstrates conclusively that the land has satisfied the statutory criteria which create a right for defined inhabitants to indulge in customary rights of recreation on the land. However, in recent years, applications for TVG registrations have, increasingly become a mechanism through which the public try to stifle commercial development by landowners for, prima facie, environmental reasons. This can be seen through attempts to register land as a TVG where the land does not exhibit the traditional characteristics of a TVG. Indeed, the recent volume of litigation suggests that the view of peaceful co-existence between private proprietor and public user, as espoused by Lord Jauncey, is optimistic and has largely succumbed to a culture of rights based litigation in which the competing interests of private landowners and the wider public are resolved through the public law. This has led to the welter of litigation which has appropriately been described as an “industry” ( Meager, 2010 ) and recent case law illustrates that what is at stake is no longer merely a right to play cricket on a village green in a sleepy English village (para. 18) ( Royal Commission on Common Land, 1958 ). On the contrary, many recently registered TVGs are far removed from the traditional notion of a TVG and this article argues that the physical characteristics of the land should be a relevant factor to determine whether an application for a TVG is permitted.
Despite statutory reforms through the Countryside and Rights of Way Act (CROW) 2000 and the Commons Act 2006 recent judgments illustrate that the law and policy remain disjointed. In particular, the interpretation of the statutory criteria by the judiciary has enabled TVGs to be registered where the recreational users could be said to fall outside of the statutory requirement that they reside in a “locality or neighbourhood within a locality”. These criticisms prompted DEFRA to initiate a consultation document ( DEFRA, 2011 ), following the publication of the Penfold Review (paras 4.25-4.27) ( Penfold, 2010 ) of planning law and policy, with the purpose of reviewing the statutory criteria for registration of a TVG and securing “a better balance between protecting high quality space […] and enabling the right of development to occur […]” (para. 1.3.5) ( DEFRA, 2011 ).
This article explores the scope of the public law which permits the exercise of customary rights of recreation over private property. Judicial interpretation of the statutory criteria has undermined the entitlement of landowners who may wish to, inter alia, exploit their land for development purposes. The judicial liberalism has opened up a Pandora's Box of litigation where the primary motivation is not to protect existing recreational rights, but to secure an environmental or ecological objective by circumventing the convoluted and lengthy planning process. The article identifies that a broader interpretation of “locality or neighbourhood within a locality” has favoured users at the expense of landowners by enabling individuals who do not enjoy an immediate physical proximity to the land to be considered as “recreational users”. The article contends that by doing so the judgments have shifted the balance disproportionately in favour of the “recreational user”, which, at the very least, is beyond the spirit of the legislation, whose purpose should be to protect existing customary rights (paras 4.4.1-4.5.6) ( DEFRA, 2011 ). Moreover, in an increasing number of cases the upholding of a TVG registration by the courts has de facto created “modern greens”, primarily for environmental reasons, the effect of which is to restrict private property rights, and which Protocol 1 of the European Convention of Human Rights (ECHR) has failed to check. This article argues that further statutory reform is necessary to address both the concept of “locality or neighbourhood within a locality” and the nature of the land which can be registered as a TVG.
Historically, the purpose of registering a TVG was to protect existing customary rights and not to create new rights over land. Section 15 of the Commons Act 2006 requires land to have been used for recreational purposes as of right, for a period of 20 years or more, by a significant number of inhabitants in a locality or a neighbourhood within a locality. Satisfaction of these criteria gives a, prima facie, entitlement to seek registration of the land as a TVG ( Ubhi and Denyer-Green, 2006, pp. 154-60 ; George, 2007 ). The Commons Act 2006 has further expanded the opportunity to seek registration and permits a two-year period of grace for registration after the land had stopped being used for recreational purposes.
The House of Lords held in Oxfordshire CC v. Oxford CC that land could not be designated as a TVG until it had been formally registered. Though registration ensures transparency it can be described as a unilateral act on the part of the users, and from the perspective of a landowner may be viewed as constituting a hostile act in circumstances where a landowner had generously allowed sports or recreational activities to be carried out on the land without any intention that this may, ultimately, create recreational rights in favour of the user. An unwitting landowner who has permitted a local community to use the land for limited recreational purposes may subsequently be faced with severe restrictions concerning the future usage of the property. A relatively new phenomenon of registration in the late twentieth and in the twenty-first century is that registration is sought not necessarily to enrich the local community's recreational habits, but more commonly to restrict the commercial development of land.
On this analysis, what can be described as the unintended policy consequences of the Commons Act 2006 is that it has arguably become of greater use to persons seeking to protect the environmental characteristics of a particular area, rather than for the purpose of improving the health and well-being of a local community. Perhaps the more disingenuous view would be to suggest that the TVG legislation has become a vehicle for “NIMBYism” (“Not in my back yard”), whereby relatively affluent and informed citizens, who are “politically” organised, whether locally or nationally, use the legislation to prevent the commercial development of land for purposes such as building new homes (para. 4.25) ( Penfold, 2010 ). The case law is peppered with recent examples whereby TVGs are registered for purposes that would appear to be other than recreational. This was certainly the case in Oxfordshire CC v. Oxford CC where the land in question was partially scrubland and which the local authority wanted to develop for housing. As a consequence, landowners would at present be well advised to demonstrate extreme vigilance before permitting usage of their land for recreational purposes because their act of goodwill may consequently lead to significant restrictions with regard the future use of their land. Under Clause 13 of the amended Growth and Infrastructure Bill there exists what could potentially be regarded as a “statutory brake”, that could terminate any period of use as of right for lawful sports and pastimes. In order to take advantage of this statutory brake for TVGs, the landowner would need to deposit a statement and a map with the Commons Registration Authority, which has the responsibility for publicising the deposited statement(s). The effect of this notification procedure means that the landowner's possible future plans relating to the land in question are no longer jeopardised by a potential TVG application. However, this formal notification process does not prevent a new period from commencing if use continues to be “as of right”.
Registration of a TVG involves the submission of an application for registration to the relevant local authority which appoints an inspector to investigate the merits of the claim including whether the claim satisfies the provisions of Section 15 Commons Act 2006. Administratively, the significance of this process is that it operates as a non-statutory inquiry which hears evidence from all the interested parties. From the case law it is evident that in a number of disputes, the initial inspector's report found against the registration of a TVG, but this was subsequently overturned on judicial review. In many cases either the Court of Appeal or House of Lords/Supreme Court has upheld the appeal against the inspector's report. The case law indicates that inspectors tend to be conservative in...
