Update | Environment: Protection of open spaces

The process for the registration of a town or village green (“TVG”) is relatively straightforward and set out in the Commons Act 2006 (“the 2006 Act”). Any person may apply the registration authority to have land registered as TVG (section 15(1)). The applicant must show (section15(2)) use of the land:

(a) by a significant number of the inhabitants of any locality, or of any neighbourhood within a locality;

(b) as of right;

(c) for lawful sports and pastimes;

(d) for a period of at least 20 years (sections 15(3)-(4) allow for applications where there has been an interruption in qualifying use).

If there are objections it has become customary for the registration authority to appoint an independent inspector who holds a non-statutory inquiry. Registration authorities must be cautious in not following the recommendation of an inspector (see R (Chaston) v Devon County Council [2007] EWHC 1209 and recently the Ashton Vale decision by Bristol CC which was quashed by consent).

The result of a successful registration is that it becomes a criminal offence to cause injury or damage to, or interrupt the use or enjoyment of, the TVG under section 12 of the Inclosure Act 1857. Additionally, it makes it illegal to encroach, enclose, interfere with, or occupy the TVG (section 29 Commons Act 1876). This level of protection in practice means that the land cannot be developed and explains why applications for registration often coincide with planning applications.

Although a key way in which open spaces can be protected, the TVG regime is under close scrutiny and may not, in the long-term, be a tool that local residents can rely on in all circumstances. Defra has been consulting on a raft of changes and the Growth and Infrastructure Bill (18 October 2012) has the potential to limit the circumstances in which an application can be made. In addition, the recent judgment of R (Barkas) v North Yorkshire County Council [2012] EWCA Civ 1273 may have the result of limiting the circumstances in which local authority land can be registered as TVG.

Barkas

Land held by local authorities is, in principle, capable of being registered as TVG and there have been many successful applications for local authority land. A key limb to be proved by an applicant is that land has been used “as of right” i.e. that users have not had rights conferred upon them to use the land. This has arisen as a particular point of dispute in relation to land owned by local authorities which must have been acquired, and subsequently held, under a specific statutory power.

In R (Beresford) v Sunderland City Council [2004] 1 AC 889 land was held by a local authority under the New Towns Act 1965. The House of Lords held that to show that a landowner had granted permission, making use “by right” rather than “as of right”, there must have been a positive act to communicate the grant of permission and that encouraging use of the land (in that case by cutting the grass and setting out benches) was not sufficient. In coming to their conclusions, the Lord Justices explored the question of what statutory powers would render use “by right”. Although there was no ruling on this point, Lord Walker made the following comments:

“Where land is vested in a local authority on a statutory trust under section 10 of the Open Spaces Act 1906, inhabitants of the locality are beneficiaries of a statutory trust of a public nature, and it would be very difficult to regard those who use the park or other open space as trespassers… The position would be the same if there were no statutory trust in the strict sense, but land had been appropriated for the purpose of public recreation.”

What was not clear from these obiter remarks is which statutory provisions Lord Walker had in mind in referring to appropriation. He further described the issue as a difficult one and reserved it for determination on another occasion.

Until recently this point has not come before the courts, although it has regularly been raised at inquiries where it has been varyingly dealt with by inspectors. The inspectors have had before them, in addition to the obiter comments of Lord Walker, a number of key principles regarding the “as of right” limb of the ?test, notably:

? “as of right” means nec vi, nec clam, nec precario (without force, secrecy or permission) R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] AC 335;

? there is no need to consider the subjective understanding of the users Sunningwell, and;

? conduct which is deferential to the landowner may still be qualifying use R (Lewis) v Redcar and Cleveland BC (No.2) [2010] 2 AC 70.

?The Court of Appeal has now had the opportunity to consider this point in the case of Barkas. Lord Justice Sulllivan, giving the leading opinion, held that as the land was acquired and subsequently held under the Housing Act 1936, it was held for housing purposes. He went on to express concern about why the powers under which the land in Beresford was acquired did not result in use being “by right”, but recognised that the Court was bound by Beresford. Noting that the wider question of which statutory powers would render use “by right” remained unanswered he held:

“While the UDC was not under any obligation to lay out the land as a recreation ground, the enabling enactment expressly gave it power... to provide a recreation ground in connection with the housing... Having been laid out and thereafter maintained as a recreation ground initially under that express statutory power, and thereafter under its successor, section 12 of the 1985 Act, it seems to me that it would be wholly unreal to conclude that the Field had not been ‘appropriated for the purpose of public recreation’ in the sense in which ?Lord Walker referred to ‘appropriation’ ?[in Beresford].”

He accordingly dismissed the appeal on the basis that use of the land was “by right” rather than “as of right”. The implication from his judgment is that this line of logic would also apply to scenarios where land is held under other statutory powers.

This leaves the situation unsatisfactorily unclear. Under Beresford there are clearly circumstances where the statutory powers do not result in use being “by right” and therefore do not defeat a TVG application; Lord Justice Sullivan’s judgment in Barkas does not explain where the distinction will lie. It also arguably goes against the broader principles decided by the House of Lords in Beresford, Sunningwell and Lewis (see above). This leaves inspectors with a wide discretion which, if they follow the judgment in Barkas, seems likely to lead to a frustration of the 2006 Act (which does not exclude local authority land from registration).

In light of the above, it seems helpful to consider other methods of protecting green spaces held by public authorities. There are various mechanisms available but in this update I will only draw attention to the latest two.

Assets of community value

The Localism Act 2011 introduced the concept of “assets of community value” (section 87). Local authorities will keep a list of assets; the procedure for designating an asset is broadly drafted and yet to be clarified by secondary legislation. An asset is of community value if it is used to further the local community’s social wellbeing or social interests; social wellbeing is not defined but social interests is defined to include cultural, recreational and sporting interests (section 88(6)). Thus in principle the same type of land is susceptible to registration as an asset of community value as TVG. A significant advantage of using this method of protection is that the requirements for registration are less stringent; most importantly there is no need to show use over a 20 year period.

In terms of the protection afforded, this is considerably lower than that afforded a TVG. Once land is on the register there is a moratorium on its disposal. It cannot be sold or leased without (a) notifying the ?local authority of the intention to dispose, and (b) waiting six weeks (section 95). During that six week period the ?community may register a request to be treated as a potential bidder for the asset. If such an interest is registered the owner must wait a further six months before disposing of the land. The obvious problem with this method of protection is that the local community is unlikely to be able to afford assets, particularly those with development potential.

National Planning Policy Framework (“NPPF”)

The NPPF states that land may be designated as “Open Green Space” where it is (a) in reasonably close proximity to the community it serves; (b) demonstrably special to the local community and holds a particular local significance; and (c) local in character and not extensive in size.

The procedure for assigning land as open green space is through the creation of a neighbourhood plan, which itself requires a neighbourhood forum. This is likely to be complicated and expensive. In addition, there are restrictions on what a neighbourhood plan may include, particularly in terms of conflict with the local development plan and national planning policy. If a neighbourhood ?forum does successfully navigate the process and adopts a neighbourhood plan designating open green space, the protection is the same as that afforded to green belt, i.e. that it not be developed save in “very special circumstances”. The protection is therefore subject to the planning process.

Although both useful tools, these methods fall short in ensuring the long-term protection of open spaces. Thus the TVG regime is likely to remain important, albeit that we will have to wait and see if the Supreme Court decides to consider Barkas and how reforms will alter the regime in relation to publicly held land.