Over Taylor Biggs

Registration of town and village greens was provided for under the Commons Registration Act 1965.  Historically, common land existed primarily for agricultural purposes.  However from the 19^th Century onwards, a variety of new pressures led to changes to the law relating to commons and greens.  It also saw a move towards enclosure of common land.  Under legislation in 1925, the manorial system in which common land probably had its origins was abolished.  The Act introduced a public right of access to mainly urban commons and placed restrictions on fencing and other works that could be undertaken on common land.

There are believed to be approximately 3,650 registered greens in England and 220 in Wales, covering 8,150 and 620 acres, respectively.  There are 1.3 million acres of common land in England and Wales, registered in over 9,000 separate units, covering all types of landscape and habitat.  88% of all commons in England have a national or international designation for wildlife, landscape or archaeology.  The public has a right to walk on all common land where previously there was no legal access

Registration of common land or as a town or village green severely restricts potential development.  These issues recently came once again before the High Court, involving Kirklees Metropolitan Council.  In 2004, a development company acquired 6.5 acres of grassland in an otherwise densely built up area for speculative investment.  In 1997, the land had been registered as a town or village green.  It was used by the inhabitants of two local neighbourhoods.

The development company applied for the land to be removed from the register, thereby freeing it up for development.  Two action groups resisted the application.  The case turned on fine matters of detail and definition.

The development company argued that the land should not have been registered as a town or village green because it was not shown to be land on which "inhabitants of any locality" had indulged in lawful sports and pastimes as of right for not fewer than 20 years as required, bearing in mind that "locality" had been given a specialised meaning by the authorities over many years.

The objectors argued that the use had been demonstrated in 1997 to have been by inhabitants of a qualifying "locality".  But if that were not the case and a mistake had been made in 1997 on registration, a more relaxed test had been introduced by the Countryside and Rights of Way Act 2000, which would be met.

The 1965 Act required recreational use to be predominantly by inhabitants of the relevant neighbourhood.  Following amended legislation (applicable from 30 January 2001) use could be by "a significant number of inhabitants of any locality or of any neighbourhood within the locality".

The High Court upheld the development company's application.  The land to be registered as a town or village green had to be used by inhabitants of a single locality.  The term "neighbourhood" was cohesive area capable of a meaningful description.  The term "locality" could mean a locality or localities.  The phrase "neighbourhood within any locality" could mean either a neighbourhood or neighbourhoods but they did not need to be located within a single locality. 

On the material available to it in 1997, the Council had not been justified in making the registration.  "Any locality" was singular in the required definition, whereas the user established was by the inhabitants of two suburban areas.  Even if these two areas were properly regarded as localities, there was a reasonably even spread of use over the two localities that meant the town or village green ought not to have been registered.

On the evidence, the registration could not have been supported on any other ground when the 1997 application was made.  The 1965 Act was to be interpreted inflexibly because of the technical meaning of "locality" in the relevant definition and the action groups could not satisfy the requirements for the registration of the land as a town or village green.

Taking into account all the relevant factors, the Court decided that the original registration had to be rectified.  The land had been registered when it should not have been.  If the register was not rectified, the landowner would be deprived, without compensation of a lawful right to develop.

Paddicoe (267) Limited v Kirklees Metropolitan Council - June 2011