When considering the deregistration and exchange of land registered as a town or village green under section 16 of the Commons Act 2006, the interests of the neighbourhood, as defined at the time of registration, do not take priority over the rights of the wider public.
The Court of Appeal has considered this issue, dismissing an appeal against dismissal of a claim for judicial review in R (on the application of Strack, on behalf of Woodcock Village Green Committee) v Secretary of State for the Environment, Food and Rural Affairs [2024] EWCA Civ 420; [2024] PLSCS 80.
Section 15 of the 2006 Act provides for the registration of town and village greens where a significant number of the inhabitants of any locality or neighbourhood within a locality have indulged in lawful sports and pastimes for at least 20 years.
The landowner can seek deregistration of registered land under section 16. Where the land to be released exceeds 200 sq m, replacement land must be proposed in substitution. The primary objective when making a determination is to ensure the adequacy of the exchange land so that the relevant interests to be regarded – the landowner, commoners and the wider public – will be no worse off in consequence of the exchange.
The case concerned the Woodcock Hill Village Green, in Borehamwood, registered in 2008, the neighbourhood of which was precisely defined by properties in specified streets to the north and east.
In May 2022, the secretary of state’s inspector granted an application to deregister 33,000 sq m of WHVG comprising rough grassland with trees and shrubs and replace it with an area of 36,000 sq m to the west comprising grazed pasture and woodland. The release land was overlooked by adjacent residential development, largely overgrown and difficult to access. The replacement land had a different character and, while further away from the defined neighbourhood, would be made more accessible by new access points.
The inspector decided that there would be no loss of habitat and no significant adverse effect on public accessibility to the village green. On balance, although the strength of local opposition was understandable, the potential benefits from the proposals outweighed the disadvantages.
The Court of Appeal confirmed that section 16 did not give precedence to the rights of those within the defined neighbourhood over those of “tolerated trespassers” outside it. The majority considered that the inspector had erred in law, conflating the legal rights of “the public” with the inhabitants of the defined neighbourhood, but it was not material. The inspector had engaged in a balancing exercise and the weight to be given to the interests was a matter for his judgment.
Louise Clark is a property law consultant and mediator
