Land is eligible for registration as a green if a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for at least 20 years: section 15 of the Commons Registration Act 2006.
The requirements originate from the Commons Registration Act 1965, which referred to use by the inhabitants of “any locality”. They were relaxed by section 98 of the Countryside and Rights of Way Act 2000. As a result, the area from which users must come now includes a “neighbourhood” as well as a locality.
The courts have interpreted these expressions very differently. A locality means a single locality: Edwards v Jenkins [1896] 1 Ch 308. By contrast, modern courts have taken a more liberal approach to the expression “neighbourhood” and have decided that the singular includes the plural: Leeds Group plc v Leeds City Council [2010] EWCA Civ 1438.
In Paddico (267) Ltd v Kirklees Metropolitan Council [2011] EWHC (Ch); [2011] PLSCS 161, the developer applied to have 6.5 acres of grass land removed from the register of town and village greens on the ground that the area had been wrongly registered as a green. The land was registered in 1997 under the strict rules imposed by the 1965 Act.
The judge sympathised with the campaigners who were fighting to preserve the status of the green, but felt obliged to uphold the developer’s application because the evidence showed that the users were spread over more than one locality. The judge doubted whether the strict interpretation of the word “locality” was justified, but held that its meaning had been reiterated so often and at such a high level that he could not change it.
The campaigners suggested that the land would now qualify for registration as a green as a result of the legislative amendments made in 2000. However, the judge upheld the developer’s argument that the qualifying use of the land ceased in 1997. This was because the subsequent recreational use of the land resulted from its registration as a green; if the application had been rejected, the landowner would have taken steps to prevent any subsequent qualifying user.
Consequently, the judge did not need to decide whether the legislative amendments made by the 2000 Act operate retrospectively, or whether they apply only to user for 20 years after 30th January 2001, when the changes were brought into force. However, the Court of Appeal is expected to consider the point when it hears an appeal from the decision in Leeds Group plc.
What then of the delay in challenging the registration? The judge agreed that this was a significant factor, which could not be ignored when considering whether to allow the application. However, he decided that it would be wrong to deprive the developer of its right to develop the land without compensation.
The law on town and village greens has generated a constant stream of disputes. This case – and other recent decisions – suggest that the trend is set to continue for many years to come.
Allyson Colby is a property law consultant
