Lots in common

Around 572,000 hectares of England and Wales is common land, most privately owned. While much is used for agriculture, much is also subject to development pressure '“ from wind farms on the uplands to building on urban commons or village greens. Commons are also an important aspect of the country's heritage, with value for their nature and landscape interest. And most common land is now subject to a right of access under the Countryside and Rights of Way Act 2000.

There is often a clash of interests between landowners, commoners and those who use the land recreationally. This article considers how the new Commons Act 2006 will affect proposals for development on common land in two particular respects, exchange land and consent for works, as well as the registration of new village greens.

Exchange of common land and village green

It is often the case that landowners who wish to use or develop common land in a way that is inconsistent with rights of common are prepared to exchange the common land with other land. This transfers the rights of common to the new land, and releases the common land for development. An example was the Scout Moor wind farm in Lancashire, where 31 hectares of common land was exchanged.

The mechanism for exchange was under s 147 of the Inclosure Act 1845. That section is to be repealed by the Act and replaced by new ss 16 and 17. Section 16 allows land less than 200m2 simply to be released from registration, if certain conditions are met. An application relating to land over that size must be accompanied by a proposal for replacement land to be registered as common or green in place of the released land. An application relating to land under 200 m2 may have replacement land offered.

The test under s 147 of the 1845 Act was whether the exchange would be beneficial to the owners and whether its terms were just and reasonable. The Secretary of State took the view that this extended to the effect on the interests of the commoners and the general public. New tests are prescribed in s 16(6)-(8), which require the decision-maker to have regard to the interests of commoners, occupiers, those with rights in the land, the interests of the neighbourhood and the public interest.

The public interest covers nature and landscape conservation, and the protection of public rights of access, archaeological remains and features of historic interest. The new, wider test focuses more on the public interest. It is said by Defra to strike 'a proper balance between the private and public interests in the land'. As a result, it is less likely that proposals such as wind farms will be considered to satisfy the tests in relation to common land of particular significance for its nature, landscape, recreational or historic interest.

Works on common land

Part 3 of the Act, entitled 'works', reinforces the protection against encroachment and unauthorised development on common land. Defra's objective is to ensure the protection of the open and unenclosed nature of common land, without impeding works necessary for their proper management. Part 3 should come into force by the end of 2007.

Section 38(1) provides that works which prevent or impede access to or over common land, and the resurfacing the land, may not be carried out without consent. This expressly includes: erection of fencing; construction of buildings or other structures; and digging ditches or building embankments.

There are some blanket exceptions, including for communications apparatus, and for 'works on any land where those works... are carried out under a power conferred in relation to that particular land by or under any enactment' (s 38(6)). This latter exception is stated to apply to powers under local Acts covering particular commons, but would seem to extend to any works on particular areas of common land authorised by site-specific orders made under a statute, such as the construction of roads under the Highways Act 1980, or railways and the like under the Transport and Works Act 1992.

On one reading it may well even extend to any works on common land empowered to be carried out by site-specific consents granted under a statute, such as the construction of power stations under the Electricity Act 1989. If this is right, then it will remove the need for large wind farms on common land to secure consent under s 38, formerly required under s 194 of the Law of Property Act 1925 (which is repealed by the Act).

As with exchange land, the test to be applied has changed. In the past, under s194 of the 1925 Act, the Secretary of State would have regard to whether the works would be expedient, bearing in mind the private interests in the common and the benefit of the neighbourhood. This latter requirement was taken to mean the health, comfort and convenience of the inhabitants of any populated areas in or near any parish in which any part of the land concerned was situated.

Now, the test in ss 39(1)-(2) is the same as for exchange land, noted above. The test is both wider and clearer, and gives more prominence to the public interest in preventing development on common land. As a result, it will not be so easy to secure consent under s 38 of the Act.

Other changes in the procedure as against s 194 of the 1925 Act include the ability to modify schemes when granting consent and to impose conditions (s 39(3)), and to allow any person to take enforcement action against unauthorised works or encroachment, by way of seeking an order from the county court requiring the removal of the works and the restoration of the land (s 41). The Act also creates a new requirement for consent for the working of minerals.

Another point to note is that it is not possible under Part 3 to apply for consent for works to be carried out on village greens. With the revocation of s 194, there will be no mechanism to permit such works. The House of Lords held in Oxfordshire County Council v Oxford City Council & Robinson [2006] UKHL 25 that registered greens do benefit from the protection conferred by s 12 of the Inclosure Act 1857 and s 29 of the Commons Act 1876. The result is that the only works allowed on a green will be those that are done with a view to the better enjoyment of the green, and do not injure the land or interrupt the use or enjoyment of the land as a place for exercise or recreation. Otherwise, an exchange of land will be necessary.

Town or village greens

A new green is land that has been used by a significant number of local inhabitants for sports and pastimes for at least 20 years, as of right '“ that is, without permission, force or secrecy. The Act includes a section re-stating the conditions for the registration of new greens. It is likely to be brought into force in April 2007.

Seeking to register as a green land that had been used for recreation has become a favourite tactic of those opposed to development on open space. Much land proposed for development is on the edge of built-up areas and not in much if any active use by its owners. But these are often precisely the pieces of land which have been used by locals for informal recreation and which could qualify as greens.

The series of judgments in the Oxfordshire case in turn opened and then firmly closed the gates to new registration, before the House of Lords then opened them again (see [2004] EWHC 12 (Ch), [2005] EWCA Civ 175 and [2006] UKHL 25). But before the House of Lords' judgment, the government had decided to include a provision in the Act to overcome the Court of Appeal's decision. That, in the event, proved unnecessary. The Act, however, makes some important changes which will further increase the chances of land being registered as green.

One important element of the new Act, in s 15, is to allow periods of grace for applications for registration after use as of right has ceased. Before the Act, it was possible for landowners to prevent registration, even if 20 years' qualifying use had accrued, by preventing use as of right '“ often by fencing the land. If that was done before an application was made, it would prevent registration. Erecting permissive signs would also probably have had the same effect in the past, by rendering the use other than as of right (but not prohibitory signs alone, where use in fact continued).

The period of grace in the future will be two years from the date on which use ceased. If land has been used for recreation for 20 years before that use ceases, then at any time for two years thereafter, an application for registration could successfully be made. For a landowner, it will not be safe to develop land, even if use has ceased, for that period.

There is also a transitional provision which is even more helpful to applicants for registration, which applies where use ceased before the commencement of s 15 of the Act and where the application is made within five years from the date that the use ceased. This gives a substantial window for applications to be made. Indeed, it will allow some applications that have been refused in the recent past to be resubmitted.

An exception is found in s 15(5) for land where planning permission for development inconsistent with continued recreational use of the land was granted, and construction work commenced before 23 June 2006. The exception only applies to land that has or will become permanently unusable by members of the public for lawful sports and pastimes. On a typical housing development, it will not therefore act to prevent registration of any open space, only that part of the land that has been built on.

Section 15(7)(b) is also important, because it provides that, where 20 years' recreational use as of right has accrued, a landowner who then gives permission for the use will not thereby prevent the use being as of right. Once the Act is in force, the only sure way to prevent as of right use continuing after 20 years will be physically to prevent access to the land, probably by fencing which will then have to be maintained.

A landowner whose land has been used for recreation, but not for more than 20 years would be well advised either to fence it entirely or to erect permissive signs and, in either case, to maintain the fence or signs. Where 20 years' qualifying use has accrued, landowners would be best placed waiting for s 15 to come into force, to take advantage of the two- rather than five-year period of grace, and then to fence the land entirely to prevent access, maintain the fencing, and hope no application is made in the following two years.

The overall effect of s 15 and the House of Lords judgment in Oxfordshire will be to make it very much more likely that land used by local residents for recreation without permission can be registered as a green, and thereby protected from any development or encroachment.