Registering coastal land as 'village green'

Even to this day, getting on for nearly 50 years on from the Commons Registration Act 1965 (now replaced by the Commons Act 2006), many applications are made to register land as a town or village green (TVG). Some say that such applications are a frivolous or vexatious or 'guerrilla' way of delaying or preventing development, thus damaging the economy. Others say that they are a commendable way of protecting public rights from loss. Planning law and greens law are not coherent and are not integrated. So the litigation continues. The latest case of interest is Newhaven Port and Properties Ltd v East Sussex County Council [2012] EWCA Civ 647 (Admin). The port owned some coastal land used for the business of a port. Part of the land, a beach, was not being used for operational purposes and was used by the public as a beach for recreation. An application was made to register the beach as a village green on the basis of 20-years' use up to the date of the application by a significant number of inhabitants of the locality as of right for lawful sports and pastimes (Commons Act 2006, section 15, and Leeds Group plc v Leeds City Council (no 2) [2011] EWCA Civ 1447, [2012] 1 WLR 1561).

Covered with water

Whether land is wholly or partly covered with water for all or part of the time should not preclude registration as a village green. If the land is a beach, subject to the tide, when the tide is out the beach can be used for recreation. No grass grows, it is all sand, but a village green does not have to be green.

Inland the presence of a stream or a pond or a lake or a swampy or marshy area is immaterial. The water may be used for fishing or boating or nature study. The land as a whole and the nature, quality and duration of the recreational use constitute the land as a whole as a village green (paras 32-39). The characteristics of the use are the critical factor, not the characteristics of the land. Under the same principle the fact that part of the land may be inaccessible or unusable, e.g. dense bushes does not preclude the status of a village green. Not every square inch needs to be available for use for sports and pastimes (see R (Cheltenham Builders) v South Gloucestershire County Council [2003] EWHC 2803, and Oxfordshire County Council v Oxford City Council [2006] UKHL 25).

Similar problems may arise in respect of public rights of way which may be covered by the sea for part of the day, such as the causeway to St Michael's Mount in Cornwall (pictured).
The boundary of the village green should be ascertained and fixed in the normal way. However, in certain situations the village green may have a variable boundary. For example, the mean water mark varies slightly in spring and autumn.

Nature may cause erosion or diluvion or accretion, along the coast, rivers and streams, in which case part of the village green may be lost, and application may need to be made in due course for registration of any accretion land if qualified (paras 40-53).

Use by the owner

The existence of a town or village green does not necessarily sterilise the land so far as the owner is concerned. He may well be able for example to continue to graze his sheep or cut hay, as mentioned in Oxfordshire County Council v Oxford City Councilpara 51).

By analogy a golf club can continue to use the land for golf despite a public right of way across the land, because ramblers can ramble and golfers can play while respecting the rights of each other (see R (Lewis) v Redcar and Cleveland BC [2010] UKSC 11). Both activities can compatibly exist together. Responsible people understand the need for 'give and take'.

Bylaws

The landowner may be a public or statutory body able to make byelaws in respect of the land. The mere fact of the making of the bylaws does not in itself imply permission to the public to enter, which would destroy any claim 'of right', unless such bylaws were visibly exhibited on the land or otherwise brought to the notice of users. Mere inactivity on the land is not permission (para 100). What is or is not prohibited must be objectively apparent to a reasonable user.

Communicated byelaws are not necessarily incompatible with the rights of the inhabitants in a village green. For example, bylaws may prohibit fishing, digging for bait, diving and swimming, so that walking, playing and sunbathing would be lawful (paras 93-111).
foreshore, this belongs to the Crown. Much of the foreshore is now managed by the local authority, and the safety of the public and the safeguarding of the environment are ensured by byelaws.

As to the

Incompatibility

Where a public or private body is exercising statutory duties and powers, e.g. the land is port operational land, then the registration of the land or part of it as a village green may be incompatible and thus legally not possible. In the Newhaven Port case the piece of land in question was not being used for operational purposes, but nonetheless the port authority had plans for future port changes and expansion which would require this piece of land, and so incompatibility applied (paras 124-149). British Transport Commission v Westmoreland County Council [1958] AC 126.

A comparable problem has arisen where a body exercising statutory powers claims immunity from the common law of nuisance (see Barr v Biffa Waste Services [2011] EWHC 1003 where the Supreme Court refused permission to appeal on 26 July), and where an industrial activity, such as a port, has changed the character of an area (see Gillingham BC v Medway (Chatham) Dock Co Ltd [1993] QB 343, CA).

No application after planning

Land enjoying planning permission or proposed for development will be prohibited from forming part of an application to register land as a TVG, both currently the subject of a planning application or proposed for allocation within a local plan. Furthermore the process of TVG applications will be 'refined' so as to make it easier for the registration authority to reject (see Growth and Infrastructure Bill 2012, clause 13 and schedule 4). The current system is said to prevent developments such as social housing, according to DEFRA's website, and to constitute an abuse damaging economic growth.

Anyone contemplating a TVG application should get on with it promptly, otherwise the opportunity may be lost. The balance is moving in favour of landowners and local authorities. Will they usurp the sports and pastimes of the local inhabitants, or will the local inhabitants usurp the rights of the landowners and local authorities?

Further reading
Village greens, M Dixon [2011] 75 Conveyancer 347-349, comment upon DEFRA 2011 consultation.
Uncommon confusion: Parallel jurisprudence in town and village green applications, R Austen-Baker and B Mayfield [2012] 76 Conveyancer 55-65.
Village greens industry: Back in business, Rowena Meager (2010) 69 Camb LJ 238-240.