A defective application to register land as a green, which is subsequently corrected, can have retrospective effect for the purposes of section 15(4) of the Commons Act 2006
Land qualifies for registration as a green if it has been used as of right for recreation for at least 20 years. Use “as of right” means that users have used land openly, without force, and without having been given permission to do so. The land must be used for recreation when an application is made. If use ceased before the application is made, different rules apply, depending on when the use ceased.
Where use ceased before 6 April 2007 in England, section 15(4) of the Commons Act 2006 allows applicants up to five years from the cessation of such use in which to apply to register land as a green (unless planning permission was granted and construction works were commenced before 23 June 2006, rendering the land permanently unusable for recreation). The grace period allowed for post-Act cessations is two years, and will reduce to one year in England when section 14(3) of the Growth and Infrastructure Act 2013 comes into force.
Church Commissioners for England v Hampshire County Council [2013] EWHC 1933 (Admin); [2013] PLSCS 163 concerned a disused military camp, which was fenced off in July 2003. The applicant applied to register the land as a green on 30 June 2008, but there were two substantial defects in her application. The registration authority asked the applicant to identify the locality or neighbourhood on a plan and queried whether the landowner had first prohibited access to the land in Spring 2003 (which would have meant that the application had been submitted outside the five-year grace period for applications made under section 15(4)).
Was the application made in time, even though it was not in the form required by the Commons (Regulation of Town or Village Greens)(Interim Arrangements)(England) Regulations 2007 (which also require registration authorities to give applicants a reasonable opportunity to put things right, if it appears that this might be possible)? Or was the application invalid because the five-year grace period expired before the application was finally accepted on 20 July 2009?
The judge noted that section 15 was enacted to enable applicants to register land as a green if it had genuinely been used as of right for recreation. The grace period for post-Act cessations enables applicants to gather the evidence required to support an application. The longer grace period for pre-Act cessations was enacted in the light of the complex rules, and rule changes, to cater for the possibility that applicants might not have appreciated that they had ceased to use land as of right.
The judge noted that many of those who apply to register land as a green are without legal representation. He accepted that the registration authority had allowed the applicant much too long to deal with its queries and that the applicant had taken far too long to reply. However, the rights sought were for the benefit of the public and the judge did not believe that applications should be defeated by technicalities.
The landowners did not press the registration authority or the applicant to deal with things more quickly. Interestingly, the judge suggested that the outcome might have been different, had they done so.
Allyson Colby is a property law consultant