VILLAGE GREENS IS THE LAW NOW SETTLED?

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Philip Clark
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VILLAGE GREENS IS THE LAW NOW SETTLED? 1. INTRODUCTION 1.1 The ever changing state of the law of village greens over the last few years has been nothing short of incredible and wholly unanticipated.

1 VILLAGE GREENS IS THE LAW NOW SETTLED? 1. INTRODUCTION 1.1 The ever changing state of the law of village greens over the last few years has been nothing short of incredible and wholly unanticipated. It has taken public and private landowners, action groups, local residents, registration authorities, lawyers and legal commentators totally by surprise. The House of Lords, in its final decade, considered village greens on 3 occasions, in Sunningwell, Beresford and Oxfordshire, whilst in its first 6 years, the Supreme Court has heard 5 appeals in Lewis, Betterment, Padico, Barkas and Newhaven. Moreover, save in Sunningwell, where permission to appeal was granted by the Court of Appeal, that Court refused permission to appeal in all the others. It has thus largely been at the instigation of the House of Lords/Supreme Court that those cases have reached the highest court. 1.2 It has also become abundantly apparent that the law of village greens is ignored, particularly by landowners whether public or private, at their peril. The implications of land being registered as a village green are potentially 1

2 enormous. In Oxfordshire, 1 it was held that registration of a new village green criminalised the exercise of most property rights over that land by the landowner. Moreover, it was held to confer recreational rights in the local inhabitants over that land. It is thus imperative that public and private landowners, local residents, registration authorities, and their legal advisers are fully aware of the current up to date position on the law of village greens. 1.3 Has the tide turned and, if so, in which direction? It is not without note that of the 8 most recent village green cases that have reached the highest court, the first 4 in time all resulted in decisions favourable to the local inhabitants whereas the latter 4 all led to decisions favourable to the landowners. Moreover, between that split, the relevant provisions of the Growth and Infrastructure Act 2013 came into force with the fundamental objective of promoting growth and expressly seeking to avoid unmeritorious village green applications from stymieing development. 1.4 Is the law settled? With 8 relatively recent cases having reached the highest court and new legislation, one would have hoped so. However, it appears that, unfortunately (lawyers excepted!), such is not the position as this paper will seek to explore. 2. EXCLUSION OF RIGHT TO APPLY FOR REGISTRATION 2.1 One of the fundamental changes made by the Growth and Infrastructure Act 2013 to the Commons Act 2006 was to exclude the right for anyone to apply 1 Oxfordshire CC v Oxford CC [2006] UKHL 25; [2006] 2 A.C

3 for registration of land in certain specified circumstances. Section 16, which came into force on 25 April 2013, inserted section 15C and Schedule 1A into the 2006 Act to exclude the right to apply for registration of land under section 15 when a trigger event has occurred in relation to that land. Such trigger events all relate to events within the planning system. When such a trigger event has occurred, then unless and until a corresponding terminating event has occurred in relation to the land, a commons registration authority cannot accept any application to register that land as a town or village green and is bound to refuse to consider it. 2.2 The full list of 14 trigger events is set out in the first column in schedule 1A. They include:- the first publication of an application for planning permission for development of the land in accordance with statutory requirements; the publication for consultation in accordance with regulations by the local planning authority of a draft local plan or neighbourhood plan proposal which identifies the land for potential development; the adoption or making by the local planning authority of a local plan or neighbourhood plan which identifies the land for potential development; a draft local development order or neighbourhood development order which would grant permission for development of the land is first published for consultation in accordance with regulations. 3

4 2.3 For each trigger event, there are a number of corresponding terminating events, specified in the second column of schedule 1A. Where the right to apply for registration has been excluded because a trigger event has occurred, if and when one of the corresponding terminating events occurs, the right to apply again becomes exercisable. The right to apply to register a new green is not lost for all time by such provisions. Hence, for example, the corresponding terminating events for the publication of an application for planning permission in relation to land are:- the withdrawal of the planning application; a decision being made to decline to determine the application; where permission is refused, all means of challenging the refusal are exhausted and the decision to refuse planning permission is upheld, or the time limit for an appeal expires without such an appeal being made; where planning permission is granted, it expires without the development having been begun. Similarly, in relation to the inclusion of the land for potential development in a draft plan, terminating events include the withdrawal of the plan, the adoption of the plan (but that triggers a new trigger event if the land is identified for development in the adopted plan), and the expiry of a two year period beginning with the day on which the document is first published for consultation. 2.4 The following general points are particularly worthy of note:- 4

5 There are no trigger events in relation to permitted development rights. Therefore, the exclusion will not apply to land on which permitted development has, or is intended to, take place, unless a trigger event has occurred in relation to that land for another reason. New trigger events and terminating events are capable of being added through secondary legislation, as well as existing events being amended or omitted. 2 The exclusion of a right to apply to register land where a trigger event has occurred applies even where a trigger event occurred prior to section 15C coming into force on 25 April Where more than one trigger event has occurred, the right to apply will be excluded if and until a corresponding terminating event has occurred in relation to each trigger event. 2.5 The system works by commons registration authorities asking the local planning authority and the Planning Inspectorate whether any trigger or terminating event. DEFRA s Guidance advises that confirmation should be sought on whether the right to apply is excluded before formally accepting or acknowledging receipt of an application. This is because, if the right is excluded, then the application should not be accepted. The rationale is to avoid time and money being spent advertising and making representations in relation to an application where it subsequently turns out there was no right to apply. However, in practice, matters do not always operate so smoothly. Instances 2 This occurred by the Commons (Town and Village Greens) (Trigger and Terminating Events) Order By virtue of Section 16(4) of the 2013 Act. 5

6 have arisen in practice where both the local planning authority and PINs have informed the registration authority that no trigger event has occurred but, at an advanced stage in the process, an objector has contended that there has in fact been a trigger event. 2.6 Difficulties are frequently arising over the interpretation of Schedule 1A and its application in practice. Examples include:- When is a planning application first publicised? The trigger event arises on the publicising of the application. Pre-application consultation by a developer with the local community or preapplication discussions with the local planning authority will not amount to a trigger event. When is a draft plan first consulted upon in accordance with statutory requirements? It is the formal consultation in accordance with the relevant regulations which engages the trigger event and not the more informal consultation which often occurs in addition. The events in relation to development plan documents relate to those documents and not, for example, to those prepared as part of the evidence base for a local plan. Thus, the fact that a site is identified in a Strategic Housing Land Availability Assessment which is published for consultation would not amount to a trigger event. What happens when an application to register a village green is made in respect of land only part of which is subject to a planning application or an allocation? In principle, the part which is not subject to the planning application should proceed and the applicant should be 6

7 informed that the part where the right to apply has been excluded cannot be considered for registration. However, not all cases will be as straightforward. The trigger event occurs when there is a planning application in relation to the land or a development plan document identifies the land for potential development. The land may be within the red line of a planning application but without any intention to develop that particular area. The land may be proposed solely as open space in the application. A local plan, may identify a particular area for growth but without earmarking specific sites. The answers to such questions are not necessarily straightforward and it appears that specific judgments are required on a case by case basis. A number of issues of statutory interpretation were raised in the Undercroft case which, unfortunately for those not involved, settled when the judicial review proceedings before the High Court were part heard and so remain unresolved. They included the interesting contention that there was no trigger event in respect of a planning application or a development proposal in a development plan document which would not in fact interfere with lawful sports and pastimes. 2.7 It is thus apparent that a number of questions of statutory interpretation exist in relation to the scope of the amendments made by the 2013 Act. 3. AS OF RIGHT AND IMPLIED PERMISSION 7

8 3.1 For a use of land to be as of right, one of the requisite statutory criterion to such land being registered as a village green, it must have been undertaken nec vi, nec clam, nec precario, namely without force, without secrecy and without permission. 3.2 As to whether use has been without permission, express permission is obvious. However, permission can also be implied from the landowner s conduct. Use that has been carried out with implied permission is not as of right and so will preclude a successful village green application. 3.3 The law in relation to implied permission was previously well established by the House of Lords decision in Beresford. 4 They made it clear that an implied permission could arise where a landowner s conduct was such that it made it clear to local inhabitants that the use of his land was pursuant to his permission. Permission could not be implied from the mere inaction of the landowner with knowledge of the use to which his land was being put. Instead, the landowner had to do something positive to make the public aware that their use of his land was by his licence so that they ought to know that the land was being used by them only with his permission and not as of right. In contrast, conduct merely amounting to positive encouragement to use the land is not in itself sufficient to amount to an implied permission. Hence, the provision of benches, a cricket pitch and grass cutting were found not to be regarded as positive overt acts communicating permission. Instead, examples given of circumstances where an implied consent may well arise on the facts 4 R. (on the application of Beresford) v Sunderland CC [2003] UKHL 60; [2004] 1 A.C

9 included where the owner made a charge for entry to the land or where the owner occasionally closed the land to the general public or where appropriate signs were erected, thereby effectively communicating the permission to the public. 3.4 Such circumstances where arising on the facts of any particular case continue to demonstrate that the use was with implied permission. However, significantly, it is no longer necessary for communication of the implied permission to be shown since the overruling of Beresford in Barkas, 5 which was then applied in Newhaven. 6 In Newhaven, despite the making of byelaws by the Port, there was no evidence that at any time during the relevant 20 year period any recreating inhabitant had known that the byelaws even existed. There was an absence of communication of the claimed implied permission and so, applying Beresford, the Inspector, Ouseley J, and the Court of Appeal inevitably found that the use was not with implied permission but was instead as of right. Having overruled Beresford a few months earlier, the Supreme Court was able to find that such communication was not necessary and that the mere making of the byelaws was itself sufficient to establish that the use was with implied permission. 3.5 The overruling of Beresford thus has significant implications. It affords a degree of protection to local authorities who tolerate the use of their land for recreational activities without appropriate signage being erected or other overt conduct being carried out to make clear to users that their use is with implied 5 R. (on the application of Barkas) v North Yorkshire CC [2014] UKSC 31; [2014] 2 W.L.R R. (on the application of Newhaven Port & Properties Ltd) v East Sussex CC [2015] UKSC 7; [2015] 2 W.L.R

10 permission. However, it appears that it may well have wider effects for land that is privately owned, such as agricultural fields or other open land, where the landowner permits the public to use his land but fails to communicate such to the users. There is certainly new ground for argument in relation to such cases, particularly if the proper approach to ascertaining whether use is as of right is, as suggested by Lord Carnwath in Barkas, 7 to seek the appropriate inference to be drawn from the circumstances of the case as a whole. 4. USE BY RIGHT 4.1 It had frequently been the case that inspectors at non-statutory inquiries were required to address the argument that land owned by a local authority which was held by that authority for the very purpose of being used by the public for their recreational use, such as land held as public open space that had been acquired under one of the Public Health Acts or the Open Spaces Act or land that was otherwise laid out and maintained as public recreational land pursuant to other legislation, was used by the public by right rather than as of right on the basis of the public having a statutory entitlement to use it. That issue finally reached the Supreme Court in Barkas in which the Court held that where land is held and laid out as public recreational land by a local authority, the public have a statutory right to use that land for recreational purposes. Therefore, their use of such land for such purposes is undertaken pursuant to that statutory right to do so, and so is by right and properly regarded as a use with permission and so not as of right. 7 At paragraph 61, and reiterated in Newhaven at paragraph

11 4.2 It was also confirmed that for use to be as of right, it must be a use as a trespasser, albeit it may be as a tolerated trespasser. A person either has the right to be on land for the purposes he is there or he does not. In the former case, he is permitted to be on the land; in the latter case, he is a trespasser. The public using public recreational land for that very purpose are clearly not using that land as trespassers. 4.3 That decision has far reaching consequences for publicly owned land held, laid out and used for recreational purposes. Where any publicly owned land is subject to an application for registration, the purpose for which it is held and the statutory powers under which it is held are of utmost importance. 4.4 Nonetheless, not all publicly owned land that is in fact used for recreational purposes is necessarily used by right. Land may be held for other purposes than as public recreational open space, such as school playing fields which the public are not entitled to use, whilst other land may not be laid out or identified in any way for public recreational use, such as the scrubland in Oxfordshire. Such land would not be used by right and so remains capable of being registered as a village green in principle. 5. STATUTORY INCOMPATIBILITY 5.1 In Newhaven, Ouseley J at first instance initially identified and endorsed the view that Parliament could not have intended that registration as a village green should trump the right of statutory undertakers to use their land for the purposes of the statutory undertaking. Although rejected by the Court of 11

12 Appeal, that view succeeded in the Supreme Court. They found that section 15 does not apply to land acquired by a statutory authority which is held for statutory purposes that are inconsistent with its registration as a town or village green. Instead, where Parliament has conferred on a statutory undertaker powers to acquire land and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes. 5.2 The Court went on to state that the mere ownership of land by a public body, such as a local authority, which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility. Instead, it must be held for specific statutory purposes and the registration must be incompatible with the continuing use of that land for such purposes for the principle to apply, rather than for some future use of the land. 5.3 Although applied in Newhaven where the beach was part of the operational land of the port authority s harbour, it appears that the principles laid down could well have far reaching application, and arguably far further than anticipated in that case. Many statutory undertakers, which include all local authorities, hold land for specific statutory purposes and, when used for such purposes, would be incompatible with village green registration. There is no reason in law why the principle of statutory incompatibility laid down in Newhaven should not apply to land held by a local authority for a specific statutory purpose as it would to any other statutory body. 12

13 5.4 Hence, the decision could be applied, for example, to land acquired, held and used by a local education authority for educational purposes. In a recent nonstatutory inquiry where such educational land that had been surplus to requirements but, due to an increase in the number of pupils at a primary school, was then required as part of the school s extended playground, I successfully argued that its registration would be incompatible with the statutory purposes for which it was held and for which it was being used by the school. The local education authority is under a statutory duty to provide sufficient schools and efficient education to meet the needs of the children in its area, and it is under a statutory duty to exercise its education functions with a view to safeguarding and promoting the welfare of the children. Although the public appeared to have used that land whilst it was surplus to requirements, evidence was given to the inquiry that its registration would be incompatible with its use for educational purposes as part of a playground given that the area needed to be enclosed and the public excluded for the safety and welfare of the children, including keeping them safely in that enclosed area as well as keeping the public out of it. 5.5 The principle of statutory incompatibility is one that is likely to be applicable to many cases where the land is owned by a local authority or other public body. It will not apply where the statutory purpose for which the land is held cannot be identified or where any alleged incompatibility would only potentially arise at some unidentified time in the future. It will not apply where the land has not been held and used for the statutory purpose in question 13

14 during the relevant 20 year period. Nor will it apply where the uses are not incompatible and can co-exist, as in circumstances such as Lewis. 8 Nonetheless, it is likely to be relevant in many cases, and indeed one wonders whether the land in Oxfordshire which the City Council wished to use for housing development, or the land in the Oxford NHS case 9 which was held for potential hospital development, should in fact have been registered. 6. CONCLUSIONS 6.1 In conclusion, it appears that despite the extensive litigation and recent legislation, the law on village greens is far from settled. On the contrary, recent developments have arguably raised as many new issues as they have resolved. What is clear is that much more litigation is likely. In addition, though, the consequences of the Growth and Infrastructure Act 2013 taken together with the more recent decisions of the Supreme Court are that far fewer village green registrations will take place in the future. RUTH A. STOCKLEY 29 February 2016 Kings Chambers 36 Young Street Manchester M3 3FT 5 Park Square East Leeds LS1 2NE and Embassy House, 60 Church Street, Birmingham B3 2DJ 8 R. (on the application of Lewis) v Redcar and Cleveland BC (No 2) [2010] UKSC 11; [2010] 2 A.C [2010] EWHC 530 (Admin). 14

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