Development issues a Village Green presents

A “Village Green” is an area of open land on which “a significant number of the inhabitants of any locality… have indulged as a right in lawful sports and pastimes on the land for a period of at least 20 years”. In order to protect a right to continue using an area of land for those purposes it must be registered under the Commons Act 2006. Once registered, the land must remain open and cannot be developed.

Naturally this risk can be a headache for developers when they are looking to purchase potential development land, especially as, under the new Act, an application to register land as a village green can be made up to years after the activity to which the claim relates has ceased, or even five years in some circumstances. So what are the signs to look for?

Qualification Criteria for a Village Green

As mentioned above, the land first has to be open. Land which is fenced off, showing an intention by the owner to exclude the public, will not usually qualify. The fences do however need to be maintained. If a fence or other barrier falls into disrepair thus allowing the public to gain access without force then the benefit may be lost.

Use must be by a “significant” number of people. This need not be a large number of people, merely a significant proportion of the local community. For a small village or hamlet therefore this might only need to be a few people, whereas in a densely populated estate more would be needed.

The use must be “as of right”. Erecting signs warning members of the public that the land is private; that access is not permitted was enough under the old law; to show that the use is not as of right but no more. This is because under the old law, the public had to believe they had a legal right however under the new law they do not. As of right simply means “without secrecy, force or permission”. Use which is expressly authorised therefore is not “as of right” since it is not “without permission”. It is important however that where certain activities are authorised, only those activities are allowed to continue. Where land is properly fenced and gated then use must be with force and is not as of right. Use must be “without secrecy”. The users need not expressly draw their use to the attention of the land owner but they must not attempt to hide their use.

“Sports and pastimes” can relate to any informal recreational activities, from sports to dog walking.

What Land Can Be Designated as a Village Green?

The popular assumption is that a village green has to be in, well, a village; in other words a rural area. In truth, any land which meets the above criteria can be registered as a village green and could be in the middle of an urban area just as well. The land does not have to be public either – privately owned land can qualify also.

Preventing Development Through Registration as a Village Green

Naturally, residents of a particular area will often not want open land to be developed. It causes disruption to local life, spoils views and can even have a negative effect on house prices, so it is no surprise that the Commons Act 2006 is used as a tactic by local residents to help prevent development from taking place.

Applications are cheap and easy to make and there are no cost implications if applications are unsuccessful. An application can be made up to two years after the use which is the subject of the application has ceased. A development from the old law, where the use had to be current when the application was made, means that the landowner can effectively exclude the users but still be at risks. The mere threat therefore can be enough to warn off a developer.

So how can a developer protect itself?

Whilst negotiating the purchase a developer should encourage the seller to erect signs and fences in order to try and flush out any potential applications. It would also be a good ideal to include provision in the contract allowing for compensation or even for the developer to withdraw if a successful application is made.

Enquiries should be made of the seller to ascertain whether the land has been used for sports and pastimes in the last 2 years (or 5 years from 6th April 2007). A full inspection should be carried out on spec rather than pre-arranged by the seller. The developer should think about inspecting on evenings and weekends, when the land is more likely to be in use.

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