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Registration of Town and Village Greens

hat is a Town or Village green? For a start, town and village greens are one and the same thing, in law, so for this article we'll just call them village greens. They may seem of little interest, but there are three particularly notable things about them:

1. An existing village green has certain rights for the public to use it (although no duties on anyone to look after it);
2. It is sometimes possible to get a bit of land registered as a village green. This can then make it difficult for a developer to build on the land, and so it is often used as a weapon by those campaigning against development;
3. The law on village greens is highly complex and difficult, and subject to significant changes as different cases are heard. See this rant on The Ranger's Blog for examples, and more on this.

The origin and legal history of village greens

During the Second World War, many commons were ploughed up for agriculture and after the War growing ownership of cars and demand for housing brought pressure to bear on village greens. The increasing recreational needs of the public were recognised and a Royal Commission was established to look at any changes that could be introduced to balance the needs of the owners of the land and the enjoyment of the public. Some of the recommendations of the Commission were implemented by the Commons Registration Act 1965 which led to the Commons Registration (New Land) Regulations 1969. However this Act was flawed, and left many loopholes and unfinished business. It has even been suggested that a further Act was intended, but none was ever passed. This has led to legal confusion ever since, although successive Acts which refer to village greens have improved things a little.

The main way in which legal progress has been made is by hearing cases, which leads to changes in the case law. Since 1999 when such a case (called Regina v. Oxfordshire County Council and Others Ex Parte Sunningwell Parish Council, or more simply "the Sunningwell Case") was decided, it suddenly became quite a lot easier to register new village greens. This led a to lot more coming forward, many more test cases, and a number of significant changes in the law. More recently (May 2006) another case called the Trap Grounds Case was decided, and made further significant changes. Although the Commons Act 2006 has some effect of simplifying the legal position for those involved in a registration proposal, there is still much potential for change in the future.

How can I register a village green?

Village greens are defined in the Commons Registration Act 1965, as amended by the Countryside and Rights of Way Act 2000, as land

"which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality; or
on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes; or which falls within subsection (1A) of this section.

1A. Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either:

(a) continue to do so, or
(b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions."

So if you want to register a bit of land, it's going to be your job to prove, on the balance of probabilities, that:

1. People have undertaken 'lawful sports and pastimes' on it;
2. For 'not less than 20 years';
3. And these people are from an identifiable 'locality, or of any neighbourhood within a locality'; and
4. They have done so 'as of right'.

All four of these tests have special words in them that have very particular meanings. It's far beyond this article to explain all of them, but here are some highlights:

• 'lawful sports and pastimes' can mean informal things like picnicking, kite-flying, blackberrying, dog walking and nature study, as well as organised things like cricket and maypole dancing. But it does not usually mean just using a path to get from one place to another.
• 'not less than 20 years' is normally taken to be an uninterrupted period. If someone has fenced the site off even for a short time this might interrupt the 20 year period.
• 'as of right 'means that the activity was done as if it was a legal right, so not by cutting down fences, or sneaking onto the land knowing that use of the land was prohibited by its owner, and not with the permission of the owner either, so if users have paid rent, or made any agreement with the owner, this can prevent use being 'as of right'. This is often the most complicated matter to resolve, and there are many other ways in which use of the site might not be 'as of right'.

If you want to register some land as a village green, and you think you might qualify within these conditions, you need to get some good advice. Speak to your local council - they will tell you about the procedure for registering it, but they can't advise you on what to do or give you any help in your campaign - as they will be deciding it they have to remain neutral. You should also seek the advice of the Open Spaces Society, and if you have the resources, you might want to get a solicitor or barrister who knows about such things to review your case.

The best advice Naturenet can give you is to get that advice, and listen to it. Don't try to do it by yourself, and don't imagine you can work out the law yourself because this is one area of law where common sense just does not seem to apply. But good luck!

• More good advice from the Open Spaces Society