Right of way

The Growth and Infrastructure Act 2013
(GIA 2013) granted new powers to enable landowners to protect their land from being designated as a town or village green (TVG).
The introduction of this legislation is an important reminder of why landowners must remain vigilant to the activities happening on their land.

While the GIA 2013 amended the Commons
Act 2006 (CA 2006) in connection with TVG applications, the legislation in this respect has now been brought more into line with long-standing legislation under the Highways Act 1980 (HA 1980) relating to claims for public rights of way.
For this reason, the risk of both of these types of applications has been brought to the forefront of property lawyers’ minds.

Public rights of way

All property lawyers will be aware of the potential existence of public rights of way over land, whether these be public footpaths, public bridle paths or some other form of highway. Many will be aware of the procedure under section 31(6) of the HA 1980 whereby a landowner can deposit a statement and map with the relevant authority, setting out which public rights of way the landowner acknowledges, followed by a statutory declaration to evidence their lack of intention
to dedicate any additional public rights of way. This has the effect of bringing to an end any
period of use ‘as of right’, a phrase that will be considered in more detail below. The declaration previously had to be made again every ten years to negate any intervening intention to dedicate.

As a result of changes brought in by section
13 of the GIA 2013, the Commons (Registration
of Town or Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) Regulations 2013 were made, amending the period within which a landowner needs to submit a repeat highway declaration from ten to 20 years. The 20-year period only applies to applications submitted on or after 1 October 2013; declarations submitted before 1 October 2013 remain subject to the 10-year period (article 4, GIA 2013 (Commencement No.3 and Savings) Order 2013).

Town and village greens

An issue with which, perhaps, not all property lawyers are quite so familiar is the risk of an application for land to be designated as a TVG.

Land enjoying TVG status is protected by long-standing legislation (known as the Victorian Acts) that restricts the landowner’s ability to use and/or develop the land. It effectively becomes worthless to the landowner.

While it was originally envisaged that the legislation would be used to protect cherished community spaces used by local inhabitants for
‘the exercise of lawful sports and pastimes’, such
as cricket, football and archery, it has become increasingly common for this legislation to be used as a way of preventing development or enabling local residents to use land as an extension to their own back gardens.

Anyone can apply to register land as a TVG
where ‘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 a period of at least 20
years’ (section 15, CA 2006).

The phrase ‘as of right’ means that the use was exercised without force, secrecy or permission, and is used in both the CA 2006 and HA 1980 within the statutory criteria for TVG and public rights of way applications.

An application for a TVG can catch landowners
by surprise where they are not aware that local residents are accessing their land, or where local residents are undertaking activities that are not typically recognisable as ‘lawful sports and pastimes’. One such activity is dog-walking, which can, perhaps surprisingly, give rise to a successful claim for a TVG. Landowners should therefore be vigilant to any dog walkers straying from public footpaths over or adjoining their land, and property lawyers need to ensure that if they are purchasing open land, they raise specific enquiries to establish whether any activities of this nature are taking place.

As mentioned at the outset, the GIA 2013 has now granted new powers to help landowners protect their land from being designated as a TVG. There is now the ability to deposit a statement and map to prevent a village green claim based on 20 years’ use and there are new ‘trigger’ and ‘terminating’ events.

Statement and map

Section 15 of the GIA 2013 inserted a new section into the CA 2006 to allow a landowner in England to deposit a statement and map with the Commons Registration Authority (CRA) to bring to an end any period of recreational use ‘as of right’ on their land. This section effectively inserts an equivalent provision into the CA 2006 in connection with TVG applications as under section 31(6) of the HA 1980 in respect of public rights of way.

There is now a prescribed form for this and a
fee may be payable. Additionally, a prescribed combined form may be used for depositing a statement and map under the CA 2006 and the
HA 1980 and a reduced fee is payable for a combined application.

Trigger and terminating events

Section 16 and schedule 4 of the GIA 2013 inserted a new section 15C and schedule 1A into the CA 2006, excluding the right to apply to register land as a TVG where any specified event related to the land occurs. The Commons (Town and Village Green) (Trigger and Terminating Events) Order 2014 extends the termination and trigger events listed in schedule
1A of the CA 2006.

The right to apply to register land as a TVG
ceases where a ‘trigger’ event has occurred and
the right becomes exercisable again if there is a corresponding ‘terminating’ event. The ‘trigger’ and ‘terminating’ events include the allocation of land in a draft local or neighbourhood development plan. The submission of a planning application is a ‘trigger’ event, preventing applications for TVG status until and if the application is refused.

Practical effect

While these new powers will be welcomed by landowners, there are a few points to note about
the practical effect of using or relying on these
new provisions.

There is a risk that depositing a statement and map could have the effect of provoking a claim. Under the 2013 regulations, the relevant authority must now publicise notice of receipt of the statement and map. This is done on their website
by erecting a site notice and by sending an email
to those who have requested notification (perhaps most likely to be organisations such as the Ramblers or the Open Spaces Society). Footpath statements were not previously publicised, but they will now
be publicised in the same way as TVG statements. Applications for TVG status can also still be made within one year of the use ‘as of right’ ending, which means that a claim could still be made relating to the 20-year period prior to the statement and map being deposited.

The ‘trigger’ and ‘terminating’ event provisions
do not prevent use ‘as of right’ from continuing
to accrue throughout this period. This means that although a potential applicant cannot submit an application while the ‘trigger’ event continues to apply, once the corresponding ‘terminating’ event applies, the applicant can submit an application
and rely on their use of the land during the period between the ‘trigger’ and ‘terminating’ event.

It is worth considering whether other recognised ways of bringing the use ‘as of right’ to an end could be used instead of depositing a statement and map in the first instance. This could be by erecting appropriate signs and notices or by granting the users a licence to undertake the activity, so that
use would be by permission and not as of right.
Even though a ‘trigger’ event may apply, it may still be worthwhile considering whether a statement and map should be deposited if it is likely that the corresponding ‘terminating’ event will apply in the near future.

The key message is that there are now a number of mechanisms by which a landowner can protect his land from these claims. It is important to consider carefully the most appropriate way of doing this in each case. For example, my firm has recently been instructed by a landowner who found himself defending a TVG application submitted prior to the GIA 2013.

The client bought a nine acre site with the long-term plan of development. Local residents made a TVG application on the basis that the land was used for dog-walking and children’s play.
The client knew that local residents were using beaten paths over the site for dog-walking and had previously deposited a map and statement under section 31(6) of the HA 1980. He therefore thought he was protected from any claims by the dog walkers. The residents said that they had used the whole site for recreation.

The case went to a public inquiry, which lasted four days. After hearing detailed evidence, the inspector found that most of the land had been neglected to such an extent that access even
for walking or informal games was impossible.
Most of the use was confined to the worn tracks.
The registration authority accepted her recommendation to refuse the application.

Although this case was the result of an application made prior to the GIA 2013, it does demonstrate that landowners and developers with land banks need to be aware of TVG applications, as well as claims for public rights of way, and be vigilant
to the activities taking place on their land. SJ

Hannah Taylor is a solicitor at Lodders

---