Common ground

Landowners who are increasingly finding themselves defending applications to register their land as a town or village green under the Commons Act 2006 will find no comfort in the ruling in Leeds Group PLC v Leeds City Council [2010] EWCA Civ 1438. The consequences of registration are devastating: the land can never be developed and will lose all of the potential development value.

The Leeds case involved an application to register made as long ago as 2004 and thus engaged the definition of village green laid down in section 22(1A) of the Commons Registration Act 1965 (the predecessor to the Commons Act 2006), as amended by section 98 of the Countryside and Rights of Way Act 2000, which introduced the concept of qualifying user by a significant number of the inhabitants of any 'neighbourhood within a locality.'

A public inquiry had determined that two areas each qualified as a neighbourhood for the purposes of section 22(1A) '“ 'The Haws' and 'Banksfield'. The court at first instance, in dismissing two claims by the owner for judicial review and under section 14 of the 1965 Act, determined that there could be two or more neighbourhoods.

On appeal the landowner argued that the word 'neighbourhood' could not be read in the plural. If the landowner's argument had succeeded, then proof of user by a significant number of inhabitants of more than one neighbourhood would preclude registration, which might typically be the case in built-up areas where open space is being used by individuals living in more than one neighbourhood within, for example, only a short walk of the green.

Distorted intentions

Indeed, the court ruled (Tomlinson LJ dissenting) that there was no reason why any neighbourhood should not include two or more neighbourhoods, and that the amendment to section 22 was intended to abolish technicalities. Sullivan LJ said it would be a manifest distortion of parliament's intentions to hold that, if the evidence demonstrates that the land performed a valuable recreational function for the local inhabitants of two or more neighbourhoods rather than merely one neighbourhood, that would be a bar to registration.

Following the conclusion of the appeal, the landowner's counsel was given permission to amend the grounds of appeal to argue that section 22(1A) is to be interpreted as nottaking away the vested rights of an owner in so far as the applicant relies on acts of user before the introduction of the concept of neighbourhood user in 2001.

The landowner's argument is that user before 2001 should be ignored on the basis that the landowner's predecessor could not have been expected before 2001 to resist the assertion of any right by people living in one or other of the claimed neighbourhoods because there was no basis in law, before that time, for user by such limited class of people to result in the land becoming registrable.

If the landowner presses ahead with this appeal it is unlikely to succeed because it would mean the postponement in the ability of the inhabitants of any neighbourhood to rely on 20 years user until 2021. This would be a startling conclusion.

The point though is important because it involves an examination of the established presumption against any legislative intention to interfere with accrued rights, and in particular if such interference is capricious or unfair (see Wilson v First County Trust [2004] 1 AC 816).

We believe in the context of neighbourhood-based TVGs, section 22(1A) and section 15 apply generally to events taking place before these sections came into force. It would be absurd, in either case, to impute a legislative intention to disqualify recreational activity taking place before 2001 when these sections were clearly aimed at making it easier to register land as a green.

Waiting in the wings

There are a number of decisions now on TVGs that are making the law in this field much clearer than it has been. There are, however, two important issues still awaiting a decision in the higher courts, namely those of appropriation and in relation to the holding powers of local authorities as, for instance, in the case of land which has been acquired or appropriated to the statutory purposes of section 164 of the Public Health Act 1875 or section 10 of the Open Spaces Act 1906 which may be sufficient to preclude user 'as of right' and thus take the land out of the 2006 Act.

Developers and any potential purchaser of land susceptible to an application to register should keep an eye on the emerging case law to inform their commercial decisions in the years ahead.