The prospect of Town and Village Green (TVG) applications continues to entice the general public, to frustrate developers and to hit the legal headlines. With no less than three cases being decided in the Supreme Court in as many years and with the introduction of the Growth and Infrastructure Act 2013, TVG law continues to develop apace. In this article, TVG experts go back to basics to explain the requirements for registering a TVG and provide an update on recent developments.
Back to basics
Historically if you asked someone to picture a village green they would conjure images of people dancing around maypoles, holding village fetes or imagine the sound of ball on willow. Since key provisions of the Commons Act 2006 (CA 2006) have been in force, however, residents and community representatives have been able to apply to local commons registration authorities to register all sorts of open spaces as TVGs. A TVG does not have to be a traditional grassy area – any piece of land which satisfies the statutory requirements can be registered.
Once registered, such land is afforded the highest form of protection, so that it cannot be developed and any development which has commenced prior to registration must be undone. TVG land can only be used for lawful sports and pastimes, which significantly restricts what landowners can do with their land.
Registering a TVG
The key provisions of the CA 2006 are Sections 15(2) and (3), pursuant to which any person may apply to register land as a TVG by satisfying the following:
- A significant number of the inhabitants of any locality, or of any 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;
And either:
- The use is continuing at the time of the application to register the land (section 15(2)); or
- The application is made within a period of two years if use ceased after 6 April 2007 (section 15(3)).
“Significant number of inhabitants”
This means that the number of inhabitants has to be sufficient to show that the land is in general use, by the local community, for informal recreation (that is, as opposed to occasional use by individuals).
“…of any locality or of any neighbourhood within a locality”
The courts have defined a “locality” as an area capable of being defined by reference to some division of the country known to the law, such as a parish or other local government unit. A “neighbourhood within a locality” must be a cohesive, identifiable, and recognisable area, not being too wide or arbitrary, with some obvious social or geographic characteristic.
“…have indulged as of right”
The land must have been used by local inhabitants “as of right”. The use must therefore have been without force, without secrecy and without permission.
- Without force: for example, if access to the land is gained by breaking a padlock on a gate, the use is not “as of right”.
- Without secrecy: the use must be open, so that a landowner is capable of seeing that the land is being used for recreation.
- Without permission: any form of express permission, for example, by licence or by the erection of notices granting permission, will stop use being “as of right”[1].
The Supreme Court in Lewis v Redcar [2] decided that, if local residents using a site defer to an alternative use, this does not of itself prevent their use being “as of right” and so it does not prevent TVG registration. This case involved local residents on a golf course waiting for players to tee off before walking across land, and it was held that the residents deferring to the golfers did not mean that their use of the land was not “as of right”.
“…in lawful sports and pastimes”
The use must be classed as a lawful sport or pastime. The list of lawful sports and pastimes is extensive and does not just cover traditional pastimes such as village fetes and cricket matches. Activities can also change according to the time of year. This requirement includes general walking and dog walking on the land. However it is not sufficient, for TVG registration purposes, for the applicant to show that land is used for access from A to B; such use is more consistent with the exercise of a right of way only.
“…on the land”
This means that all of the land which is the subject of a TVG application must be so used if the application is to succeed. If only parts of a site are used, then only those parts can be registered.
“…for a period of at least 20 years”
The land must have been so used for at least 20 years. It is not necessary for all of the residents/applicants to have each used the land for the full 20 years; the evidence is to be taken cumulatively. However the use must be continuous and not interrupted for any significant time (albeit it is not necessary to show that the land has been used every day).
Recent developments
Case law deriving from the Commons Act 2006, culminating in Lewis v Redcar in 2010, seemed very much applicant-friendly. At that stage it seemed that many TVG applications were being made by local residents to stop development, rather than on the back of a genuine belief that the land in question was a town or village green.
The Growth and Infrastructure Act 2013 (the Act) went some way to halting this trend by introducing a number of ‘trigger events’ which prevent TVG applications being made in certain circumstances. The Act also introduced provisions allowing landowners to submit statements to the local council which have the effect of bringing to an end others’ use of the land “as of right”. This has proved to be a useful tool for landowners and developers, but it does bear noting that local residents have a one year grace period from the submission of the statement in which they can still make an application to register land as a TVG.
Recent common law decisions have also seen the courts adopt a balanced, common sense approach.
By right or As of right
In 2004 in Beresford [3] the House of Lords had decided that providing benches and mowing grass did not amount to giving permission to use the land. It was concluded that the use by the local residents was actually “as of right” (without permission) and the land was registered as a TVG. The 2014 Supreme Court decision in Barkas [4] however, much to the relief of local councils which may have recreation grounds which they want to develop, has since overruled Beresford. The Supreme Court in Barkas held that if members of the public have a statutory right to use land for recreational purposes then they use that land “by right” and the land cannot be registered as a TVG.
Additional clarification was given on this point when the High Court in Naylor v Essex County Council [5] dismissed an application for judicial review on the grounds that it was not a requirement for the local authority to own a legal interest in the land which had, pursuant to statute, been made available to the public for recreational use regardless of ownership.
Rectification of the register
The cases of Betterment and Paddico [6], heard together in the Supreme Court in 2014, considered whether lapse of time can prevent rectification of the register of town and village greens [7]. The court held that there was no applicable time limit, but instead that the court should decide whether there was any prejudice in rectifying the register to any of the following: local residents; other parties; local authorities; or the fair hearing of the case, and it noted that lapse of time would be a material consideration. It was concluded, in both those cases, that there was no prejudice and that the registers could be rectified.
These cases are helpful in that they pave the way for landowners and developers to consider a challenge to a registered TVG, to rectify the TVG register retrospectively where mistakes have been made.
Statutory powers
In 2015 the Supreme Court in Newhaven [8] overturned the Court of Appeal’s decision to register a beach as a TVG on the basis that registration as a TVG was incompatible with the statutory purpose for which the land was held. This gave developers some hope that land held under a statutory power could not be registered as a TVG. Those hopes were then curtailed somewhat by the decisions of the Court of Appeal in Lancashire County Council and NHS Property Services, but they have now been resurrected (and then some!) by the Supreme Court’s December 2019 decision in the conjoined appeal [9]. That decision effectively provides public authorities who have acquired and held land for statutory purposes with a robust defence to TVG applications.
WM Comment
Walker Morris’ TVG experts are optimistic that recent statutory and common law developments, along with wide-scale acknowledgement of the growing need for housing, infrastructure and other essential development, signal a sensible and sensitive approach to the ever-controversial balance between protecting open land and enabling appropriate development and economic growth.
Update (December 2019)
For information and advice on more up-to-date TVG cases, please see our related briefings:
TVG applications: A simple, informal process?
Statutory Incompatibility and Village Greens
Town and Village Greens: Essex CC’s ‘quay’ to Court of Appeal success
Court of Appeal indicates TVGs now a less effective weapon against development
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[1] providing that 20 year user as of right has not already been established.
[2] R (Lewis) v Redcar and Cleveland Borough Council & Anor (Rev 1) [2010] UKSC 11
[3] R (Beresford) v Sunderland City Council [2004] 1 AC 889
[4] R (on the application of Barkas) v North Yorkshire County Council and another [2014] UKSC 31
[5] [2014] EWHC 2560 (Admin)
[6] Taylor v Betterment Properties (Weymouth) Limited and Adamson & Ors v Paddico (267) Limited [2014] UKSC 7
[7] Section 14 of the Commons Registration Act 1965 (a pre-cursor to modern TVG law) imposed a duty on county councils to maintain registers of common land and town and village greens.
[8] R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council & Anor [2015] UKSC 7
[9] [2019] UKSC 58, and see our more detailed briefing for further information and advice.
