Town and village greens comprise areas of land that are available for recreation. Anyone can apply to register land as a green if local inhabitants have been using it, without permission, for “lawful sports and pastimes” (an expression that covers a vast array of activities) for at least 20 years. Once registered, land will be protected from development because it is a criminal offence to do anything that disturbs or interferes with the use or enjoyment of land as a green.
Applications to register greens must be submitted to the commons registration authority for the area in which the land is situated. If the application is contested, the authority will generally hold a non-statutory public inquiry, usually before a legally qualified inspector. A feature of such inquiries is that hearings take place at, or near to, the site, and can take place at times that are most convenient to people in the locality. Importantly, each party meets its own costs and the registration authority meets the cost of staging the inquiry. Consequently, local inhabitants have seized on the commons registration system as an effective and inexpensive means of blocking unwanted development in their locality.
Costs have, none the less, become a battleground between landowners and local inhabitants seeking to register land as a green. In R (on the application of Whitmey) v Commons Commissioners [2004] EWCA Civ 951; [2004] 3 EGLR1; [2004] 45 EG 126, the Court of Appeal indicated that there were three ways of determining whether land is a green, name.y: (i) applicants could apply to the court for a declaration that land was, or was not, a village green; (ii) the registration authority could determine an application; and (iii) Following registration, a dissatisfied party could apply to the court for rectification of the register.
As a result, landowners began asking the courts for negative declarations that land was not registrable as a green. The aim was to expose applicants (usually a poorly funded group of local residents) to the risk of having to bear the cost of the legal proceedings if the landowner’s application was upheld, and to force the applicants to withdraw because of the risk of an adverse costs order being made against them. Anecdotal evidence suggests that these tactics were often successful, but the High Court decision in McLaren v Kubiak [2007] EWHC 1065 (Ch); [2007] PLSCS 157 confirms that they are an abuse of process and that the proceedings will be struck out.
The judge’s reasoning was based upon the House of Lords decision in Oxfordshire County Council v Oxfordshire City Council [2006] UKHL 25; [2006] 2 AC 674, which confirms that land cannot become a green unless it is registered as such by the commons registration authority. Consequently, the judge ruled that it is not open to the courts to decide whether land is a green, and that landowners must await the outcome of commons registration applications before involving the courts. If land is registered as a green, landowners can then make an application for judicial review of the decision or can apply to rectify the register.
Allyson Colby is a property law consultant
