Land use: the difference between acquiescence and permission is key

In a housing crisis with few “easy” wins for housebuilders, developers often have no choice but to look at more challenging sites for their next project. Developers are accustomed to opposition to planning applications from residents. However, land owners must also be careful not to turn a blind eye to any sort of illegal use, no matter how innocuous, if the development potential of the land is to be preserved, for two reasons. Town and village greens  First, land used for the purposes of recreation and playing lawful games may be listed as a town or village green (TVG). The effect of this is that any damage to the green, or any act which interrupts the use and enjoyment of the green, becomes a criminal offence: an effective fetter on development.  Dog walking and children’s play have formed the basis for registration of TVGs in a number of cases. But beware: there is no requirement for the land to resemble a classic green space, or indeed to be completely accessible. Rocks, beaches and marshy scrub land have all qualified.  The relevant legislation is the Commons Registration Act 1965 for most of England, replaced by the Commons Act 2006. The more recent statute is in force only in some parts of the country. Both acts specify that new TVGs can be registered on evidence of long use of the relevant land as of right for lawful sports and pastimes by inhabitants of the locality.  What’s relevant is the length of the use rather than its legality. One of the most extreme examples was considered by the House of Lords in Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 EGLR 95. That case dealt with land known as Trap Grounds between the canal and railway, in some places so marshy that waist-high waders would be required to access it, and in other parts so overgrown as to be impenetrable by the hardiest walker.  The House of Lords decided that activities such as walking, with or without dogs, children’s play, exploring and watching wildlife, even on densely vegetated land, can be recreational rights. Their lordships considered lawful activities that would be harmful to other users, such as archery and clay pigeon shooting. However, because these activities did not form part of the application for registration in that case, no binding decision was reached. Assets of community value Secondly, it is possible that the land could be listed as an asset of community value (ACV). Although the consequences of this are less severe than listing as a TVG, the impact on development will still be felt. The effect is to give local people the right to bid to acquire the asset for a period of five years: this is a right to bid if the owner decides to sell it.  The legislation (the Localism Act 2011) was conceived originally as a means of protecting pubs, village halls and community centres, but has recently been used to list a field in the case of Banner Homes Ltd v St Albans City and District Council [2018] EWCA Civ 1187; [2018] PLSCS 96.  The field in that case was subject to rights of way. Walking along the rights of way was perfectly legal. However, local residents had also enjoyed various peaceful and beneficial recreational activities over the rest of the field, such as children’s play, walking, kite flying, exercising dogs and the photography of flora and fauna. These activities involved trespassing on the rest of the field.  The owner (Banner Homes) was aware of these uses but made no objection and took steps to stop them only after a local residents’ association had nominated the field as an ACV. Cases can be heard only by the Court of Appeal if they raise important questions, and the issue in this case was whether the Localism Act permitted an asset to be listed when the actual use enjoyed by the community had been illegal. Banner Homes maintained that parliament had intended the actual use of the asset to be a legal use, and therefore the illegal trespassing did not qualify. In this case, the trespassing had been minor, caused no harm and was tolerated by Banner Homes for many years. There was no evidence of fences having been destroyed to enter the site. The court considered that the requirement for ACVs to further social wellbeing would rule out many unlawful activities, giving the example of “raves” at which illegal substances were consumed and noise nuisance took place as an example of something that would not further social wellbeing.  Furthermore, the residents’ association had worked with the landowner to remove dumped rubbish, discourage scramble bikes, and plant and maintain hedges from 1998 to 2011. Banner Homes’ case was dismissed by the Court of Appeal. Rights acquired by prescription must be obtained without force, openly and by consent. Until they have been used in such a manner for many years, the rights are illegal. Paradoxically, a trespasser can acquire rights, though someone who seeks permission first cannot. Banner Homes’ case follows this pattern. Developers have to tread a careful path between protecting their sites and yet making sure that any local opposition to development is minimised. Landowners concerned about the development potential of their own sites should take steps to ensure that, where use cannot be prevented, the public understands that use is strictly by consent. Unscrupulous objectors might remove signs, time and again. If signs or fences are torn down and replaced, photographic evidence of the damage and invoices for replacement should be carefully retained.   The difference between acquiescence and permission is fundamental in relation to both TVGs and ACVs. How do you show consent? The wording of signs was considered by the House of Lords in R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 PLR 85. If a sign stating “Private – Keep Out” will be ignored, their lordships suggested “the public have permission to enter this land on foot for recreation, but this permission may be withdrawn at any time” or “the public may use this land for recreational purposes as a village green”. Suzanne Gill is a partner at Wedlake Bell LLP