Court Guidance on Town or Village Greens

In a case of interest to property professionals, a campaigner who sought to protect a triangle of grass against housing development proposals has failed to convince the High Court that it should be registered as a town or village green.

The plot adjoined the sea wall in a seaside town and it was argued that it had been used by local people for lawful sports and pastimes for in excess of 20 years. On that basis, the campaigner argued that it qualified as a town or village green under Section 15(2)(a) of the Commons Act 2006.

The local authority refused his registration application, however, on the basis that the public had made use of the plot ‘by right’, rather than ‘as of right’ as required by the legislation. Although the land was in private ownership, it had long been maintained by the council at public expense. The council had managed the land under powers contained within the Open Spaces Act 1906 and had authorised its recreational use by local residents. The council’s decision was later upheld by a planning inspector.

In dismissing the campaigner’s appeal, the Court ruled that neither the council nor the inspector had made any error of law. The plot also did not qualify for registration as a town or village green because its use by the public had been interrupted for four months in 1993, during building works on the sea wall. The ruling opened the way for development of the site, subject to planning permission.